Contracts Triumphs over Torts (Statute of Limitations)

Boston University (BU) hired Clough, Harbour, and Associates (CHA) to build a new athletic field on top of a parking structure, also built by CHA. Sidebar: this seems like a bad idea. BU paid CHA $970,000 for the athletic field, and the contract included a provision, pursuant to which CHA promised to indemnify the university for “any and all” expenses incurred by the university as a result of the architect’s “negligen[t]” design.

You guessed it. As the Court sums it up, “CHA’s design failed to account for seasonal expansion in the joists of the parking structure; this resulted in depressions in the field that rendered it unsafe for hosting athletic events.” BU sought to recover expenses in excess of $25,000 incurred in making the field useable. I have to assume that the $25,000 is just some sort of pleading threshold to meet a jurisdictional bar. If that was all it cost to fix the field, it would not be worth the cost of litigation.

Boston University’s East Campus

BU sued. CHA moved to dismiss based on the lapse of the six-year statute of repose for tort claims. The trial court granted the motion. The Massachusetts Supreme Judicial Court granted BU’s application for direct appellate review. In Trustees of Boston Univesrity v. Clough Harbour & Assoc. LLP, the Supreme Judicial Court reversed.

The only issue on appeal was the statute of repose. At first blush, it seems an easy issue. The claim is not based in tort; it is based on an indemnification provision, so CHA’s failure to pay is a breach of contract. Ultimately, that was the basis of the Court’s decision. CHA has a duty to indemnify BU not because that duty arises as a matter of law but because CHA voluntarily took on the duty of indemnification. While a negligence claim requires a showing of duty, breach, causation, and damages, BU’s claim is clearly contractual:

The case is remanded for further proceedings.