Will S. Bennett and Ali H. Jamwal | Saxe Doernberger & Vita
The Supreme Judicial Court of Massachusetts recently expanded plaintiffs’ rights to bring construction defects suits in the state.[1] The ruling allows plaintiffs in Massachusetts to now bring suit even after the statute of repose for construction defect claims has passed if the cause of action is based on a contractual dispute rather than tort liability.
Plaintiff, the Trustees of Boston University (“Boston University”), and defendant, Clough, Harbour & Associates LLP (“CHA”), entered into a contract in June 2012 for CHA to design a new athletic field at the university premises. The contract contained an express indemnification provision. Following completion, Boston University faced numerous issues using the field because of design defects. CHA’s design did not account for seasonal expansion in the joists of the parking structure, which caused depressions in the field, rendering it unsafe and unusable. Boston University incurred expenses to correct these design flaws and informed CHA of these design defects in September 2017.
In July 2020, Boston University sued CHA seeking indemnification for its expenses. CHA moved for summary judgment based on Massachusetts’ statute of repose, which limits action for damages arising out of any deficiency or neglect in the design, planning, construction or general administration of an improvement to real property to be commenced no later than six years after the earlier of the dates of either the opening of the site or substantial completion of the project. CHA successfully argued that Boston University was time-barred from bringing a claim, and the trial court granted CHA’s motion. Boston University appealed.
The court overturned the lower decision, allowing Boston University to bring the claim despite the statute of repose having run. The court focused on the cause of action in Boston University’s complaint. Boston University’s complaint sought to enforce the indemnification provision in the contract between the parties, rather than seeking tort damages for CHA’s defective design work. The court held that the statute of repose only provides a limitation for actions in tort, and provides no such limitation for actions in contract. The court stated that a key difference between an action in tort and an action in contract is that in the latter, the standard of performance is set by the defendants’ promises, rather than imposed by law. In doing so, the court allowed Boston University to circumvent the belief that a non-tort claim can be subject to the tort statute of repose if the nature of the action is founded in negligent construction practices.
The court’s decision creates a loophole allowing plaintiffs to bring design, planning, or construction defect claims even after the statute of repose has run if there is an applicable indemnification provision in the relevant contract(s). The court’s decision significantly increases liability for contractors, architects, subcontractors, consultants, and other protected participants because the remedy for a cause of action in contract is likely coextensive with the remedy for a cause of action in tort. As an example, usually when a contractor works on a construction project, prospective plaintiffs would be barred from bringing claims against the contractor for any construction defects after the statute of repose has run. However, under the court’s new ruling, if the contract between the contractor and the prospective plaintiff(s) contained an indemnification provision, then the prospective plaintiff may still bring a claim for such construction defects even after the statute of repose has run.
Notably, plaintiffs would still be governed by Massachusetts’ 6-year statute of limitations for contract actions. This is critically important for contractors to understand. If the prime contract is set up such that the indemnification provision remains in force indefinitely, the owner could theoretically tender an indemnity claim at any time following project completion and would have six years from that date to sue to enforce that tender.
Conclusion
Based on Trs. of Bos. Univ., contractors need to carefully evaluate their contracts to ensure they are not subjecting themselves to construction defect indemnity claims extending far beyond the Massachusetts statute of repose for negligence-based construction defect claims.
[1] Trs. of Bos. Univ. v. Clough, Harbour & Assocs. LLP, 495 Mass. 682 (2025).
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