The distinctions between a statute of limitation and a statute of repose are both technical and significant. Under a statute of limitations, for instance, a plaintiff must bring a claim within a specified time from the date the claim arises, typically the date of injury. Under a statute of repose, on the other hand, a plaintiff must bring a claim within a specified time from the date of a specific event, regardless of whether the plaintiff has been injured as of that date. The Massachusetts Supreme Judicial Court (“SJC”) recently addressed these distinctions when it decided that a six-year statute of repose for tort claims arising out of any deficiency or neglect in the “design, planning, construction or general administration to improvement to real property” did not extinguish a plaintiff’s contractual indemnification claim.

The case involved an indemnification claim brought by a university (“University”) against an architectural firm (“Architect”) hired to design a parking garage with an athletic field on the top floors. Because of the Architect’s negligent design, however, the University experienced serious problems with the field just after opening. For instance, the field was rendered unusable because of large divots caused by the Architect’s failure to account for expansion in the garage joists. After spending about $25,000 to repair the field, the University sought reimbursement from the Architect under the indemnification clause of the contract. When the Architect refused, the University sued the Architect for breach of contract.

The University filed the suit more than six years after the field first opened. The Architect therefore defended against the suit by arguing that the University’s indemnification claim was subject to the six-year statute of repose for tort claims arising out of any deficiency or neglect in the “design, planning, construction or general administration to improvement to real property.”

In rejecting the Architect’s argument, the SJC first noted that the statute of repose applies only to tort claims. A key difference between tort claims and contract claims is the standard of performance. For tort claims, the standard of performance is set by law. For contract claims, on the other hand, the standard of performance is set by the contract. Take for example, claims for breach of an implied warranty and for breach of an express warranty. Both claims involve the same elements. But the statute of repose applies only to the implied warranty claim because the standard of performance is set by law. The statute of repose does not apply to the express warranty claim because the standard of performance is set by the contract.

Here, the “gist” of the University’s claim against the Architect was contractual because the University sought to enforce the indemnification clause of the contract, which the two parties specifically negotiated. The statute of repose did not therefore apply to the University’s indemnification claim because the Architect’s duty to indemnify the University was based on a contractual provision to which the Architect “freely and intelligently chose to be bound.”