-: SJC 13685.
Trustees of BU versus Clough, Harbor, Associates, LLP.
-: Okay, attorney Sullivan.
-: Good morning.
Madam Chief Justice, may it please the court,
Michael Sullivan with my colleague William Burke
for the appellant trustees of Boston University.
The trial court entered summary judgment
against Boston University and its indemnification claim.
It did so based upon the statute of repose, section 2B.
The statute of repose is directed to tort actions.
BU's claim is a contract action.
We submit that the decision was an error
and should be reversed.
And I would point the court to three.
I would submit compelling sources of authority
for this conclusion.
The parties, the legislature, and this court.
The parties spoke to this issue through their contract.
In a big construction project like this,
the parties enter into a very detailed, lengthy,
comprehensive contract.
Wendlandt: Can I ask you a question?
-: Yes, your Honor.
-: Is that a standard form contract,
or was it one that was negotiated and changed?
-: The indemnification provision
is from an AIA standard form,
and I'm not aware of any changes to that.
-: And how at all,
how, if at all, does that affect our analysis?
Because one of the things that you focus on
is the sophistication of the parties
who aren't entered into this contract.
But if it's a standard form contract,
can you just explain how that affects the analysis,
if at all?
-: Your Honor, there may be some contexts
in which a standard form versus a specifically,
more specifically negotiated agreement may be relevant,
but we would submit that here,
when you have these two sophisticated parties,
the court should presuppose that these parties
who well understood their rights,
who well understood projects like this,
who have their own attorneys understood every word
in this contract, whether it was a standard form or not.
-: Excuse me, were there any findings by the lower court
about whether this particular provision was negotiated
between the parties,
or was part of the standard form contract?
Michael: There were not.
-: Because I looked at the contract.
It's in the record,
and I see that it's a standard form contract,
but it also recites the beginning that
where there's a left hand line like this-
Michael: Yes.
-: That indicates that it was changed,
sort of like track changes that we're familiar with.
And there is a line next to this provision.
-: Your Honor, what we're left with is the provision itself,
what we were left with.
I'm not aware of any specific changes
relevant to this issue.
And what you're left with
is this first party indemnity provision,
which is a relatively rare provision.
Many cases you just have a third party provision,
or you have one of these act based provisions.
This is clearly a first party provision.
That's never been disputed,
and it's the only reflection of the party's intent.
And that has to be honored by the court.
The contract means what it says.
And the parties could have used any predicate they wanted.
Kafker: Can I just? -: Yes, your Honor.
-: I just wanna follow up on the standard form a little more.
So if this is the standard AIA form,
so is the statute repose gonna disappear
in every major construction project?
I'm just, 'cause there's always gonna be an indemnification
provision to allow.
I mean, I understand the purpose of the statute
is to prevent torts, you know, old torts from going forward,
but if this is a standard provision
in every construction contract,
aren't we gonna just turn them all into
indemnification cases?
-: At the end of the day,
I'm not aware of whether this particular iteration-
Kafker: Looks pretty familiar.
-: It is.
And I would try to point the court back to obviously,
the legislature has spoken,
putting aside the party's intent for a second.
There's multiple problems with a conclusion along the lines
that your Honor may be driving at.
If you read other terms into the contract,
that's a very slippery slope, this just idea.
That this is not a contract.
This is really about the underlying concepts
that are in the contract.
And so if you determine that
something else should be read into the contract
that's not there,
you're essentially rendering that it meaningless.
Because if we are to say that this merely repeated
the negligence rights that BU already had
and the breach of contract rights that BU already had,
it's meaningless.
And we obviously have a longstanding principle
against the idea of interpreting contracts as meaningless
or superfluous.
-: It may not be meaningless.
It just may be barred by the statute of repose.
Right?
It may not be infinite.
-: From the a straight contract interpretation,
I would suggest that it's meaningless or virtually so,
because again, BU already have the right
to do those things in the agreement.
-: May I ask you a question about the state of the record?
Michael: Yes.
-: There are, as I,
and really my question is driven by the language
of section 10.10.
So as I read this indemnification provision,
there are two possible predicates.
One is if the expenses,
which is the language that you're relying on,
are caused by the architect's failure
to meet its obligations under this agreement
or by the negligence of the architect,
or the architect's employee, or agents.
Are you relying on both of those?
Michael: No, it's just the negligence portion.
-: Okay, because that's the only thing I saw in the complaint
were any factual allegations I saw in the complaint
really were negligence allegations, correct?
Michael: That's correct.
-: And was there any discovery after that?
Michael: No, there-
-: So the state of the factual record
are just the allegations of the complaint?
-: Yes, there was no discovery at,
to the question earlier-
Wolohojian: Or even-
-: On what went into the agreement,
what the parties actually-
-: I'm not worried about what went into the agreement.
I'm worried about the cause of action itself,
what you're claiming was wrong.
What you're claiming was done wrong,
the only things we know about that are
what's in the complaint?
Michael: Yes.
-: Okay, and and those sound in negligence.
-: Yes.
And we submit that when the parties
entered into this agreement,
they essentially took the negligence right
that BU already had and turned it into a contract right.
They could have used any terminology they wanted,
but if they used negligence versus act base,
or they could have limited the third party,
the choice of the predicate in the agreement
didn't somehow transform this contract right
into a tort right.
-: But counsel, if the indemnification claim relies,
doesn't rely on proving negligence,
what else is there in this case?
Can you identify anything other than a scenario,
or some other scenario where BU could recover
under the indemnification provision
without establishing the negligence of CHA?
-: No, your Honor, I'm not gonna pretend
that it's anything other than that.
-: Well, so then what if you go backwards then,
and say that it's a slippery slope
if we're looking at the gist of what we're talking about,
why wouldn't this be properly subject
to the statute of repose?
And one other thing,
would it be different if the indemnification clause
said that it applied irrespective of fault?
-: I think everyone is in agreement.
DHA makes a point of this,
that if you didn't use the word negligence,
this would be an endless claim,
and it would not be subject to the statute or repose.
And we're saying the fact that you use the word negligence,
it's still a contract right,
and it's the same result.
This is a protective measure to CHA.
We have to prove fault.
We shouldn't have less protection.
It's a contract right.
And if I-
-: Can you explain to me?
So in Gomes, the case that you're relying on,
the court looked to the gist of the claim as well.
Why wouldn't we do that here?
Michael: In Gomes- -: Yes.
-: And I don't want to take up all my time quoting case law,
but if you look at Gomes,
the court said, and this is a quote,
"The gist of Pan AM's action is essentially contractual-
the enforcement of a contract of indemnification."
And they went on to say that in the Klein case,
"We left no doubt that section 2B expressly provides
a limitation only for actions of tort
and does not apply to contract actions."
Five or six cases since then,
including the recent SI Ambro case from Justice Casper
of the United States District Court
interpreted the statute of proposed the same way.
That was a statute of limitations decision,
but I'd submit that Justice Casper's analysis,
which followed the UMass decision, is consistent with Gomes.
-: Gomes is the only case.
Gomes is the only indemnification case we have, right?
Michael: From this court, yes.
-: Yeah, from this court, right.
-: Can I ask you a question about a footnote in your brief?
One thing that the indemnification provision
purports to give to BU is not only its expenses,
quote unquote, for negligence of CHA,
but also attorney's fees,
which under the American rule is not something BU
would ordinarily get in a negligence action
even if BU prevailed.
You have a footnote in your brief, in your reply brief,
addressing the attorney's fees issue,
and on page 17,
and I just truly didn't understand the footnote.
Could you tell me what you were saying there about?
You said that one cannot rely on an argument
relating to the attorney's fees,
but I just did not understand.
-: I believe it was the advanced healthcare case
where a party referred to was trying to argue
in the context of the statute of repose
a provision about attorney's fees,
giving the provision meaning.
And what what was said in that case is that
indemnification agreements are not
prevailing party attorney's fee provisions.
They're indemnification agreements.
They provide for all kinds of relief.
They typically provide for attorney's fees.
If the parties only intended to provide
an additional right for attorney's fees,
they would've just said that.
The typical clause in that situation, not indemnity,
a prevailing party provision to override the American rule
says if there's a disagreement under this contract,
the prevailing party gets its fees.
-: So your point in that footnote
and your point today is simply that
one should not read this indemnification provision
as solely providing a right to attorney's fees
and not actually indemnifying with respect to expenses.
-: Exactly.
You'd you'd be ignoring the remainder of the agreement.
And if I could circle back to-
-: Can I ask you one more question?
'Cause I think they're gonna get up.
I take it your argument,
Nolan's decision in Gomes is controlling.
It's the only indemnification case,
and it's indistinguishable.
I think they're gonna try to distinguish the language
of the indemnification provision.
Do you wanna take a shot at saying
it's the exact same language or-
Michael: It's not- -: The same?
-: It's not the exact same language.
There actually are two predicates in that case,
one of which was negligence,
the other of which was a more act based.
If there's a claim against us and it relates to your work,
we can bring a claim against you.
And CHA really focuses on,
we'd suggest out of context on the one sentence of Gomes
where they say that the statute of repose
does not bar an action founded on
the indemnification agreement of the type in this case.
If we were just dealing with that sentence,
I might suggest that there's some ambiguity.
-: But that's what my question gets to.
'Cause the type,
and is the language essentially the same here?
'Cause that's what I'm trying to understand.
'Cause I don't quite see the difference
in the language in Gomes from here.
I'm not sure Gomes is correctly decided,
and it seems to be sort of inconsistent
with a lot of things we say later,
but it is on point for you.
And I'm just trying to get a sense of
whether the language is exactly the same.
-: It's on point in terms of that agreement
having negligence language.
It also had act based.
So if you look in the footnote,
the indemnification provision had two predicates,
one of which was negligence.
And the court didn't really discuss in the decision proper
what aspect of the agreement
supposedly took this out of the statute of repose.
But as I quoted earlier,
they went on to say in that subsequent paragraph
that the gist of the action is contractual,
enforcing a contract of indemnification.
They quickly moved from that and referred to Klein and said,
the statute of repose does not apply to contract actions.
And all the cases since then have said one after the other,
and up until the time of SI Ambro,
Gomes stands for the proposition
consistent with the language of the statute of repose
that contract actions are not governed
by the statute of repose.
Justice Georges, as you asked before
about getting under the agreement to the gist of the action.
And Justice Kafker, you mentioned some of the other cases.
I just wanted to, the UMass case,
I don't wanna talk much about the UMass case.
Obviously this court's gonna make its decision,
but that's why we're here.
That was the second summary judgment decision
that came up in this case and that we're appealing from.
UMass relied on two lines of cases.
We suggest that they improperly conflated
the different lines of cases,
and this court has to send them back and correct that error.
The Kline cases, not a contractual indemnification case.
That's an implied,
an effort to get around the statute of repose
by calling a tort right a contract right.
And the Bridgewood case,
that two justices on this panel, I believe,
or three justices were involved in,
that was trying to reconcile two different statutes.
That obvi, that still, that also did not involve
contractual indemnification.
And I'm running out of time, your Honor.
The the Gomes line of case is still good.
It's still on point.
All the courts have interpreted the way that we do.
And again, UMass sort of took us off on a detour,
and we're suggesting this court
has to bring us back on track.
And I'd like to leave your Honors with an example
of the slippery slope element of this.
That if we are to look past an agreement here
and to talk about the gist, it's inviting parties.
It eliminates this bright line rule
that's created in Gomes that we think should be reaffirmed.
If we talking about the gist,
and in this and other context,
parties are going to be encouraged to say our agreement
did not mean what it said.
It meant this other thing down here in the gist.
If you had a settlement agreement in a lawsuit
with a non-disparagement provision, a party could say,
well, non-disparagement is sort of like defamation.
Let's look at defamation.
That's really the gist of disparagement.
You should have brought your claim within three years.
That wasn't the contract right.
And we'd submit that this court would find
that that's a contract right,
and we submit that this situation is really no different.
The legislature made this public policy decision.
They could change it.
We submit that this is a conscious decision by them,
and the parties spoke to the issue,
and that nothing should be read into their contract.
-: Would this issue be avoided if the contract said,
the indemnification clause said notwithstanding,
you know, the statutory,
you know, the statute of repose,
you know, we will be indemnified, blah, blah, blah?
-: I think the court has two options.
One is to, and CHA has raised this point,
that in order to get around the statute of repose,
the parties have to specifically say that.
I mean, again, under Gomes, this contract was signed,
had every reason to believe
that this was going to be enforced as a contract.
You can contract around the statute of repose.
The net, nef, or net case does not say you can't.
And again, if the conclusion is the parties
need to specifically mention that,
that's again inviting people to say,
well, bring these other words into the contract.
The silence reflects the intention of the parties
to not take this case out of the general rule,
that this contract claim is governed by
the statute of repose.
-: Why isn't the general rule that this claim
is a negligence claim, which is a tort claim,
and if the parties want to get out of the statute of repose,
they need to state so clearly?
-: Well, I would, your Honor,
this goes back to your earlier question about Gomes
and this court saying 35 years ago
that the gist of a contract indemnification claim
is contract indemnification.
It's not according to the underlying principles.
The Klein doesn't apply.
Bridgewood doesn't apply.
The gist is bringing a contract claim,
and if that's not the gist of the action,
again, you're inviting these arguments
that agreements don't mean what they say.
Wendlandt: Okay, thank you. -: Thank you.
-: Attorney Howard.
-: Good morning.
May it please the court,
Eric Howard on behalf of Clough, Harbor & Associates.
With me, my colleague Sean Laughlin and Tom Duquette.
This court should affirm the Superior Court's
summary judgment decision for three reasons.
One, BU is seeking an indemnification
based totally on negligence.
If BU wanted to incorporate an express warranty,
or a guarantee, or the language that's in Gomes,
they could have done that.
Number two, the superior court correctly held
that the Gomes decision doesn't create a bright line rule
that every claim for contractual indemnification
is exempt from the statute of repose.
And then three, the Cuperior Court
correctly apply the analytical framework
that this court created going back to the Klein decision,
and then Anthony's Pier 4, and the-
Justice: Go ahead.
-: No, you go ahead.
Well, Klein specifically says that 2B does not apply
to actions in contract, does it not?
Eric: I'm sorry, I missed the first, Klein said?
-: Klien specifically says that 2B
does not apply in actions in contract.
Eric: I'm sorry, 2B?
-: Klein has a line in it.
I don't have the case in front of me,
but it literally has a sentence that's,
section, you know, the statute of repose in 2B
does not apply to actions in contract.
-: Understood.
Section 2B the of the statute of repose.
My reading of Klein is, one,
it affirmed the constitutionality of the statute of repose,
but also recognized that the statue repose
would not apply to a claim for an express warranty
or guarantee that that is not something that-
-: Well, the holding of Klein that's really important
is that the Klein held that it does apply
to an action for implied warranty
because the court held that the implied warranty is,
that is to say the warranty imposed by law
is the same as the negligent standard.
Eric: Correct.
-: So the court held as a matter of common law essentially,
that where the implied warranty
that pursuant to this court's holding
was gonna be the same as the negligent standard,
would blow a massive hole in 2B to say.
So that was the holding of Klein,
and it expressly distinguished a contractual action
where parties had agreed, had made promises to each other,
either via express warranty or via contract.
Eric: Correct.
-: And then in Bridgewood,
the court was dealing with chapter 93A, which is a statute,
and a tricky question where we had a statute
from the legislature saying it is a per se violation of 93A
to, you know, to do this wrong thing.
And then also we have a statute of repose
applicable to tort actions.
And do we or do we not apply that to a 93A action?
So understanding the meaning of the electoral legislature.
Can you describe, can you state your best argument for why
in a case where we're not dealing with the common law?
This is not a common law question here.
This is a question of whether to enforce
a contractual promise.
We're not-
Well I guess this is the question.
Is it your position that a party
simply cannot contract around 2B?
-: No, that is not our position.
I think that I'd go back to the Anthony's Pier 4 decision
because I think that is, you know, factual,
analogous to this case because you had an owner
and an engineer similar to what we have here.
And in that instance, the court found that
because the engineer had made an expressed promise
to the owner that this boring system will not fail,
even after the owner had said,
I'm concerned about whether this is, you know,
the structural integrity of this boring system.
And they said it doesn't need any
additional structural support.
That was, the court interpreted that as being an allegation
and evidence of a warranty or guarantee.
-: It was a promise.
The duty was imposed on the party by virtue
of their own promises.
Eric: Correct.
-: And here you have a contract that promised to pay BU
for its, quote unquote, expenses
arising out of any negligence by CHA.
-: Correct, but the,
and there's nothing magical about an indemnification clause.
It's really a, it's a risk allocation provision
within the contract and-
-: Well, it's a promise to pay BU's expenses
of a certain kind, is it not?
-: But only if we're found negligent.
Only if we're found negligent.
-: It doesn't say if a court finds you negligent.
It doesn't say based on a judgment in a negligence action.
It just uses the word negligence
and says expenses, duty, or negligence, correct?
-: Correct.
I would interpret the provision consistent with how,
I believe, several courts have interpreted
that the word negligence is, it's a legal term.
It means that there's been an adjudication on the merits
that someone has breached the standard of care,
and therefore that the indemnity provision
under this contract would be triggered.
And what the trial court determined here was
if this were to go to trial,
we'd be having a trial as to whether or not Clough Harbor
breached the standard standard of care,
whether they were negligent,
It would be-
-: So, but your argument would still hold
even if the party said, if BU had chosen to say,
if the contract, if the parties had negotiated a contract
that said notwithstanding the, you know, 2B,
and the statute of repose in 2B,
you know, CHA shall pay BU for its negligence.
You would still have to have a whole trial about
whether CHA was negligent.
Would you not?
-: I disagree.
I think if, well, just take the language in Gomes.
If BU, and they could have.
They could have taken the exact language in Gomes
and incorporated into this agreement.
All be, you would have to prove like in Gomes is to say,
I've been sued, I've suffered a loss,
and it doesn't require me to prove negligence.
I can just show you, here's the loss I suffered.
For example, like in Gomes, I've been sued.
You have an obligation to indemnify me.
That's a contractual promise
that doesn't require a finding of negligence.
-: I was positing a provision that looks
exactly the same as this.
So BU can only recover based on the negligence of CHA,
and then added the provision is just a phrase
notwithstanding the six year statute of repose
set forth in 2B.
Eric: Okay.
-: So is that a provision that the legislature has made
unavailable to parties by virtue of 2B?
-: If I think I understand your question,
you're getting to the point, I guess BU's argument that
because we didn't expressly state that a statute of repose
doesn't apply, therefore this is a breach of contract claim.
But I would go back to the agreement.
The agreement does make reference to Massachusetts law.
And then if you look in the agreement,
there's a provision that says that Clough Harbor
has to maintain professional liability insurance
for six years after the date of substantial completion.
That is the statute of repose.
The parties clearly contemplated
the statute of repose would apply.
And the indemnity provision says there's two conditions
by which you are entitled to indemnification.
One, you have to prove we've breached a provision of the,
or an obligation on the contract.
That's off the table.
BU has acknowledged that.
And then you get to negligence.
And how do you establish negligence?
You have to have a trial in the merits
in terms of establishing.
In this case it would be, what was the standard of care
for designing an athletic field?
-: But the elements of the contract claim are different
than the elements of the tort claim.
I know you're focused on one element of the contract claim.
That is the breach, that is the negligence.
But a contract claim requires an offer
and acceptance, consideration, breach, and damages.
Whereas a tort claim requires a duty,
and then there's the, you know, breach of that duty.
So the claims, unlike the Klein claims
where the express warranty claim had the same elements
as the tort claim,
here the elements are different.
Now you may concede there's an offer,
an acceptance, consideration,
but those are still elements of BU's claim.
Why doesn't that take this contract claim
out of the Klein express warranty type cases?
Eric: Because I think- -: Or I'm sorry.
Implied warranty type cases
-: This court has defined the analytical framework
for how we interpret the statute of repose.
-: Right, and the gist of this claim,
as your opposing counsel has said, is a contract claim.
I'm looking at this contract,
and section 10.10 tells me
that I have this contractual right to indemnification
that was offered, it was accepted,
there was a payment made to CHA
and now just on the breach element,
I have to do the negligence part.
-: I guess I'm having trouble understanding.
If this case were to go to trial,
it would be a trial of whether or not Clough Harbor
breached state of care.
-: Because you're not contesting
that there's an contract, right?
If you stood up and said there was never a contract,
they'd have to prove that this section 10.10
that I'm looking at was actually entered into, negotiated,
and that there was consideration for it.
But by entering into that stipulation at the trial,
it doesn't mean that those elements of the contract claim
go away.
Whereas the implied warranty claim
is entirely the same as the tort claim.
-: And I would, again, I go back to
the only condition for the indemnity to be triggered
is negligence, the tort claim.
And this court has said,
we have to look at the gist of the claim.
You can't just rely on the label attached to it.
And you know, I even go back,
if you look at the Bridgewood decision,
I would submit that this dissent in Bridgewood
and the holding as to the issue of
whether you evaluate a common law claim,
for example, like negligence, or a contract claim,
that sort of analytical framework is the same.
It hasn't, whether it was in Anthony's Pier 4.
And I would say Gomes applied that analytical framework.
-: But I don't understand how-
I just, I have trouble with Gomes
'cause don't they have to do the exact same thing in Gomes.
Like look at the footnote one in Gomes,
which describes the indemnification provision.
It has two parts, including the negligence discussion.
I don't see if Gomes is correct,
I have trouble getting to,
I don't know how you distinguish it
on the language of Gomes.
Tell me how.
Let me just read it.
The contractor shall indemnify and hold the owner
from and against any and all costs, loss,
or expenses, liability, damages, settlement,
or claims by for damages.
Then it then it goes injury to persons
or damages including property resulting from,
and they go, negligence.
So isn't Gomes, to recover in Gomes
they would also have to show negligence too, wouldn't they?
Eric: No. -: Why not?
-: No, because Gomes had the additional language
that's not in the contract here.
-: Tell me what that additional,
'cause I missed that.
I just can't follow you.
-: Because in Gomes, the architect agreed that
they would have an obligation to indemnify
if there was an allegation, loss.
And so all that requires is the owner says,
I've been sued.
-: Doesn't say that.
It says all costs, loss, or expense,
settlements or claims for damages.
Isn't that fairly similar, if not almost the same as yours,
'cause it's standard indemnification language?
-: No, I think it's significantly different.
Because again, if you look at the language
in the indemnity in Gomes,
it doesn't require any adjudication of the meritus
to whether there was negligence.
It only requires the owner to say, I've been sued.
There's a complaint's been filed.
In the complaint, the-
And we don't know in Gomes.
Unfortunately, there's not a lot of factual background.
Wolohojian: Isn't not the case in 10.10?
10.10 says demands.
-: I'm sorry?
-: Section 10.10 indemnifies for demands.
So why isn't that the same thing?
-: Because then you have to read the rest of the provision.
It says to the extent caused by,
so a demand caused by your negligence.
That requires you to prove your negligence
before we're obligated to indemnify you for a demand.
That's different than what was in Gomes
where they said we've been sued.
In the complaint, there's an allegation that
somehow the slip and fall resulted in the design
or construction of the project.
We don't have to do anything else.
We can just show you we've been sued.
And by virtue of that,
your indemnity obligations triggered.
It doesn't have a, we're not required to do anything else.
In fact, you could say the owner could have moved
for summary judgment based on those facts
in the language in the contract.
-: But isn't it strange that the court in Gomes
didn't carve out the negligence part?
If in fact there was such meaning
as you're putting into the actual indemnification,
wouldn't you have expected the court to have said,
alright, the negligence part,
that one's within the statute of repose.
But look, this contractual claim is actually broader.
And so that's the part that's being enforced here.
-: But I think that's the significance of Gomes
in terms of the narrowness of the holding
because the courts didn't need to get into
the negligence discussion.
Where the court said, you know,
an indemnity provision of the type here,
or that, I mean, they were very specific.
Because there was this particular indemnity provision,
that's why we're saying it's outside the statute of repose.
It doesn't require any other condition
other than we've been sued.
That's it. Georges: Counsel?
-: And so, it's a narrow holding.
-: I'm still troubled by your earlier answer
to Justice Wendlandt's problem, question.
You started your presentation by saying
that an indemnification provision
is simply a risk allocation provision.
So is it at all possible for this
to be contractual in nature
even if negligence is the triggering event?
-: I would say no, without any additional language.
I mean, this, you know, going back to one of the questions
during my brother's argument,
this contract is a former agreement,
but there was a numerous revisions.
And I would submit, if you look at the indemnity provision,
this is a very narrow indemnity provision for a reason.
The recognition of what occurred in Gomes,
and understanding Anthony's Pier 4,
and that's why these contract provisions are negotiated
to make sure that there is, you know,
from our perspective, we're only obligated to indemnify
if we're found negligent.
Georges: So what's your, I'm sorry, Justice Kafker.
-: I just wanna make sure, and I'll refer back to you.
So this isn't a standard AIA provision
or it is a standard AIA provision?
Eric: The contract is a standard form agreement, but-
-: Indemnification provision- -: Was negotiated.
Because to the point earlier by Justice Dewar,
you can tell that it was revised or negotiated
because of the black line on the left hand margin.
-: But when I go and collect the standard
AIA construction contractor,
I'm not gonna find this provision in it.
This is gonna be sui generis.
-: Correct, this particular indemnity provision
was negotiated by these parties.
It's not identical to what you've seen
in the form agreement.
-: Negotiated, and whether it's not the standard provision
are two different things.
Is this, again, are we gonna find this is the standard
big construction project provision for indemnification?
I just don't know the answer to that anymore.
At one point I did, but I don't know now.
-: No, in the sense that the standard form of agreement
does have additional language.
For example, typically we'd say any errors, omissions,
acts, et cetera, to the extent caused by the negligence.
So that added language phrase that's in
sort of the unmodified standard form of agreement
is not in this contract for the reasons that I've discussed.
In other words, we're only obligated to indemnify
if we're found negligent
because we're mindful of the statute of repose.
And I, Justice Georges,
I don't know if I answered your question.
-: No, Chief, may I just one?
So I just wanna make sure I have this right.
So would your position have changed on,
would be changed on the indemnification clause
if it didn't reference negligence
and simply required indemnification for any costs
that were related or incurred
as a result of CHA's performance?
-: I would say we would've a very difficult argument
to distinguish that situation from Gomes.
Georges: Thank you.
-: And for those reasons I ask that you
affirm the Superior Court decision.
Thank you.
-: Thank you.
(papers rumpling)
(justice coughs)
(papers rumpling)
(paper crumples)