Please join us for this ACEC/MA Risk Management Forum as Howard Goldberg, a Partner with MG+M The Law Firm briefs us on the amicus brief in the matter of Trustees of Boston University v. Clough, Harbour & Associates LLP.
Background:
On January 10, 2025, MG+M filed this Amicus Brief with the Massachusetts Supreme Judicial Court (SJC) on behalf of ACEC-MA in the matter of Trustees of Boston University v. Clough, Harbour & Associates LLP. Attached is a copy. ACEC/MA is grateful to MG+M for bringing this case to our attention and for advocating these important positions for ACEC/MA and our members.
The issue before the Court is whether a contractual indemnification claim that “sounds in" tort is barred by Massachusetts' six-year statute of repose under Mass. Gen. Laws ch. 260, § 2B. The issue presented in this case is of the utmost importance to design professionals.
The statute of repose precludes a party from bringing a tort, or negligence-based claim (i.e., that the design professional did not comply with the applicable standard of care), more than six years after a project for the improvement of real estate is substantially completed. Unlike a contract claim, negligence claims are subject to the statute of repose. In other contexts, the SJC has held that courts must look at the “gist of the action” in deciding whether the claim is contractual or tort-based.
In this case, the Owner, Boston University (“BU”) sought to circumvent the statute of repose by asserting a claim for contractual indemnification against the architect, Clough Harbour & Associates (“CHA”). CHA had designed a turf field for BU and depressions developed in the field which necessitated repairs by BU over time. But BU waited for more than six years after project completion before asserting the claim. In the trial court, CHA moved for summary judgment, arguing that BU’s contract claim was, in reality, a tort claim and that because the indemnity clause in the Owner-Architect Agreement was premised on the violation of the standard of care, not a warranty, it fell within the 6-year limitation of the statute of repose. The court agreed, and the SJC allowed a direct appeal, bypassing the Appeals Court.
As you will see, the Amicus Brief supports the arguments made by CHA in the Superior court, that BU’s indemnity claim “sounds in tort” and should therefore be barred by the statute of repose. We believe that the arguments made on behalf of ACEC-MA will help to tip the scales in favor of the Architect, and if so, it will also benefit all design professionals, insulating them from unwarranted exposure beyond the 6-year repose period.
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