Mass. High Court Clarifies 6-Year Statute of Repose Does Not Bar Contractual Indemnification Claims

The Massachusetts Supreme Judicial Court just issued an important decision in Trustees of Boston University v. Clough, Harbour & Associates LLP. In short: the Court held that the six-year statute of repose for construction-related claims does not bar a claim for breach of an express indemnification provision, even if the indemnity is tied to the other party's negligence.

The case involved a defective athletic field design that caused Boston University to incur costs to repair the field. More than six years after the field was put into use, BU sued the architect under a contract clause that required the architect to indemnify BU for expenses caused by its negligence. The architect argued that the claim was barred by the statute of repose for construction claims. The Court disagreed, finding that the indemnity obligation was based on the contract—not tort law—and therefore was not extinguished by the repose period.

Key Takeaways:

• If your contracts include express indemnity provisions, those rights may survive even after the statute of repose for negligence claims has expired.
• Well-drafted indemnification clauses remain critical to protecting against latent defects or problems that surface years after project completion.
• Parties can be held to the bargains they negotiate, even when the project is long finished.

If you would like help reviewing your contracts to ensure they include effective indemnity protections—or if you need guidance on how this case may affect your rights—please let us know.