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…