Architects and Design Professionals, Beware! You May Have Liability Long After the Project is Finished
Recently, the Supreme Judicial Court issued a decision which is critically important for design professionals in Massachusetts as the decision in Trustees of Boston University v. Clough, Harbour & Associates, LLP, 495 Mass. 682 (2025) (“Clough case”) states that the statute of repose under Mass.Gen.Laws ch. 260 § 2B is no longer applicable to claims for indemnification for negligent performance.
In the Clough case, Boston University (“University”) entered into an agreement with Clough, Harbour & Associates, LLP (“Architect”) in June 2012 for the design of athletic fields and a parking structure below the fields. After the project was completed and in use, the University found that seasonal expansion of the parking structure joists created depressions in the fields rendering them unsafe for events. The University demanded that the Architect indemnify the University for the repairs it made to the structure, but the Architect declined. The University then commenced an action for breach of the Architect’s contractual indemnification obligation. The trial court agreed with the Architect’s argument that, because more than 6 years had expired since the University had begun to use the fields for their intended purpose, the statute of repose under Mass.Gen.Laws ch. 260 §2B barred the claim.
The statute of repose provides that claims for construction defects under a tort theory are barred six years after the work is completed. The bar against tort claims is absolute. It does not matter if an owner does not discover the work until after six years, or even if the owner suffers significant harm. However, the statute of repose does not apply to breaches of contract.
On appeal, the University argued that the statute of repose applied only to tort claims, but that its claim against the Architect was for contractual indemnification. The Architect reiterated its position that the University’s claim was for negligent performance and, therefore, the claim was barred by the statute of repose. In determining whether or not the six-year statute of repose applied to the University’s claims, the Court looked to the “gist of the action” to determine whether the statute of repose was applicable to a claim for contractual indemnification based on negligence performance.
Ultimately, the Court determined that the University’s claim was for enforcement of a contractual provision – that the Architect had promised to indemnify the University for its negligent conduct. The Court found that the Architect’s “duty to indemnify the [U]niversity for [its] negligence is not one imposed by law; rather, it is a promise to which [the Architect] freely and intelligently chose to be bound.” In essence, the Court held that, to prove its claim, the University was required to show the existence of an enforceable indemnification clause, an event that triggered it, notice to the Architect and its refusal to indemnify, all of which were the elements of a contractual breach. As such, the Court determined that the University’s claim was for breach of contract to which the statute of repose was inapplicable, and overturned judgment on behalf of the Architect.
Design professionals should review their existing contracts and address this issue through contract drafting unless and until the Massachusetts legislature addresses the issue.