High court weighs whether statute of repose bars indemnity claim in Boston University construction dispute

The Massachusetts Supreme Judicial Court heard argument in Trustees of Boston University v. Clough Harbor Associates LLP over whether a construction contract's indemnification clause — triggered by the architect's alleged negligence — is a contract claim outside the state's statute of repose or effectively a tort claim subject to the six-year repose period.

Michael Sullivan, attorney for the Trustees of Boston University, told the court that the trial court erred by entering summary judgment against Boston University on its indemnification claim and that "the contract means what it says"; he argued the indemnity provision is a first-party contractual right that should not be swept into the statute of repose. Sullivan said the clause at issue was taken from an American Institute of Architects standard form and "the parties, the legislature, and this question" support treating the claim as contractual.

Eric Howard, attorney for Clough Harbor and Associates, urged the court to affirm the lower court. Howard told the justices the indemnity claim relied "totally on negligence" and that the decision in Gomes and subsequent case law do not create a bright-line rule that all contractual indemnity claims are exempt from section 2(b). He argued the indemnity language here requires adjudication of negligence before indemnity is triggered and that the trial court properly applied this court's precedent distinguishing tort- and contract-based claims.

The argument turned on competing readings of the indemnity provision's predicate language and the trial record. The complaint contains negligence allegations and the parties acknowledged there was no factual discovery on the negligence allegations; Sullivan told the court he was "not aware of any specific changes relevant to this issue" in the indemnity clause, while Howard said the provision at issue was a negotiated, narrower clause that required proof of negligence before indemnity would attach.

Both sides discussed this court's prior decisions, including Gomes, Klein, Bridgewood, Anthony's Pier 4 and later cases such as UMass and a Sanbro decision referenced during argument. Sullivan urged the court to follow Gomes, which he said treated indemnity enforcement as a contractual action not governed by the statute of repose; Howard countered that Gomes is distinguishable because its indemnity clause did not require adjudication of negligence before indemnity was triggered.

Justices posed hypotheticals about standard AIA form provisions, the practical effect of treating every construction indemnity clause as exempt from the statute of repose, and whether parties can contract around section 2(b) by using specific language. Sullivan warned against collapsing a contract's plain language into a court-crafted "gist" analysis that would render negotiated terms meaningless. Howard said contracting parties could and sometimes did limit indemnity exposure and that the clause here explicitly tied indemnity to a finding of negligence.

The case arises on appeal from a Superior Court summary judgment dismissing BU's indemnification claim as barred by section 2(b). The court heard argument on whether that judgment should be affirmed or reversed and whether the contractual indemnity claim is legally distinct from the underlying negligence tort for purposes of the statute of repose. No decision was announced at the oral argument.

If the SJC rules that indemnity claims of this form are contract actions outside section 2(b), the decision could preserve a path for owners to seek contractual indemnity even when tort claims would be time-barred. If the court instead treats such indemnity claims as subject to the repose period when they turn on negligence, that would limit owners' ability to invoke indemnity clauses tied to fault after the statutory period.