The Subrogation Strategist

In Trustees of Boston University v. Clough, Harbour & Associates LLP, 495 Mass. 682, the Supreme Court of Massachusetts held that the tort statute of repose for improvements to real property did not bar a contract claim where the breach of the contract was based in negligence.

In Trustees of Boston University, Clough Harbour & Associates LLP (CHA) contracted with Boston University to design a new athletic field for Boston University. The contract included an indemnification provision that provided: “[CHA] shall indemnity [the university] from and against any and all expenses, including, but not limited to, reasonable attorney’s fees, to the extent caused by the negligence of [CHA].” After the athletic field was completed, it suffered from numerous defects in its design. For one, the athletic field was located on the roof of a parking structure and CHA’s design did not account for seasonal expansion in the joists of the parking structure and the effect of same on the field. 

Boston University incurred more than $25,000 to fix the field. Boston University then sued CHA alleging that CHA owed it indemnification under the contract for CHA’s negligence. The lawsuit was brought more than six years after the university first started using the field and, thus, was outside the statute of repose applicable to improvements to real property.

CHA moved for summary judgment on the basis that the contract claim was time barred by the tort statute of repose applicable to improvements to real property. The Supreme Court of Massachusetts disagreed. The court found that the tort statute of repose applies to a claim for breach of implied warranty because the elements for a breach of implied warranty are identical to the elements of a negligence claim. However, the court held that the tort statute of repose does not apply to a claim for breach of an express warranty, because in those cases, the duty arises from the contract and “the express agreement to guarantee a particular result.” Consequently, “while the parties chose to incorporate the negligence standard of care into the indemnification provision, the elements of the university’s contractual indemnification claim differ from a claim for negligence.” 

Trustees of Boston University v. Clough, Harbour & Associates LLP demonstrates that the Massachusetts statute of repose applicable to improvements to real property may not apply to contract claims, even when those contract claims arise out of negligence.