Under the Massachusetts statute of repose, tort claims involving improvements to real estate generally must be initiated within six years of the improvement’s opening to use.[1] So, for example, if a worker suffers a jobsite injury as a result of an architect’s design defect, the worker’s claim against the architect is barred forever if it is not asserted within six years of the owner taking beneficial use of the project. Unlike statutes of limitations, this is true even if the claimant reasonably does not discover the negligence until after six years. The point of the statute is to give construction professionals certainty that they will not face claims – many of which involve complicated issues of fact – long after a project has wrapped.
[1] The statute reads, in relevant part, as follows:
Action[s] of tort for damages arising out of any deficiency or neglect in the design, planning, construction or general administration of an improvement to real property . . . shall be commenced only within three years next after the cause accrues; provided that in no event shall such actions be commenced more than six years after the earlier of the dates of: (1) the opening of the improvement to use; or (2) substantial completion of the improvement and the taking of possession for occupancy by the owner.
G.L. c. 260, § 2B (emphasis added).
But what about tort-based claims tendered to another under the terms of a contractual indemnity provision? That is, extending the example above, what if the injured worker sues the architect, and the architect, in turn, demands contractual indemnification from a subconsultant? Is that contractual indemnity claim covered by the statute of repose such that it is subject to the six-year bar? According to the Massachusetts Supreme Judicial Court, the answer is no.
This issue was presented in Trustees of Boston Univ. v. Clough, Harbour & Associates, LLP, which the court decided on April 16, 2025. There, Boston University hired CHA, an architecture firm, to design an athletic field. CHA did so, and the field opened for use in 2013. It soon became obvious, however, that a defect in CHA’s design caused the field to sag, rendering it unsafe to host athletic events. BU corrected this defect on its own and then tendered the bill to CHA for payment under the parties’ contractual indemnification provision. CHA declined to pay the bill, and as a result, in 2020 – i.e., more than six years after the field opened – BU sued CHA to recover its costs. The trial court granted CHA summary judgment on the grounds that because BU essentially had asserted a professional negligence claim against CHA, the claim was barred by the statute of repose.
The SJC disagreed. At base, it concluded that because the “gist” of BU’s claim was contractual, not tort based, the statute of repose did not apply. In support of this conclusion, it advanced two primary rationales. First, BU’s right to reimbursement was created by the indemnity provision in the parties’ contract, and without that provision, CHA would have had no obligation to indemnify BU. And second, the elements of BU’s indemnity claim – i.e., the occurrence of a triggering negligent event, notice of the event, and failure to pay – were different than what BU would have needed to prove a negligence claim. Thus, because BU’s claim plainly arose under the parties’ contract, the statute of repose – which, again, applies only to tort claims – was inapplicable.
At first glance, the SJC’s opinion, although well-reasoned, appears troubling for design and construction professionals. After all, a broad indemnity provision may effectively eliminate any temporal limitation on one’s liability for negligent work. But that’s not the end of the story. Parties, of course, generally are free to negotiate any contractual terms they wish. Indeed, the SJC recognized that BU and CHA had specifically negotiated the terms of their indemnity provision, as opposed to relying on boilerplate terms, and it therefore had little trouble enforcing the provision according to the parties’ written intent. Thus, design and construction professionals that are wary of extended liability can and should negotiate indemnity provisions more limited than the one at issue in the BU case.
The lesson, as usual, is that in construction, the importance of the parties’ contract cannot be overstated. So, take a look at your standard forms, and if it’s been a while since they’ve been updated, think about having them reviewed to reflect recent changes in the law. Doing so just might save you the trouble of a lawsuit down the road.
Chris Sweeney is a construction attorney and partner at the Boston-based law firm Conn Kavanaugh Rosenthal Peisch & Ford, LLP.
He can be reached at csweeney@connkavanaugh.com
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