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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Grafton

No. 2018-0604

JOHN C. RANKIN & a.

v.

SOUTH STREET DOWNTOWN HOLDINGS, INC.

SOUTH STREET DOWNTOWN HOLDINGS, INC.

v.

TRUEXCULLINS AND PARTNERS ARCHITECTS & a.

Argued: June 4, 2019

Opinion Issued: August 6, 2019

Shaheen & Gordon, P.A., of Dover, for the plaintiffs, John C. Rankin and 

MaryAnne Rankin, filed no brief.

Devine, Millimet & Branch, Professional Association, of Manchester

(Andrew D. Dunn and Tavish M. Brown on the brief, and Mr. Dunn orally), for 

the defendant/third-party plaintiff, South Street Downtown Holdings, Inc.
2

Lewis Brisbois Bisgaard & Smith LLP, of Boston, Massachusetts 

(Kenneth B. Walton and Elena M. Brander on the brief, and Mr. Walton orally), 

for third-party defendant TruexCullins and Partners Architects.

Morrison Mahoney LLP, of Manchester (William A. Staar and Nicholas 

Meunier on the brief, and Mr. Staar orally), for third-party defendant Wagner 

Hodgson, Inc.

HICKS, J. This case is before us on an interlocutory transfer without 

ruling from the Superior Court (MacLeod, J.). See Sup. Ct. R. 9. The trial 

court transferred the following question:

Does RSA 508:4-b (“the statute of repose”) as amended in 

1990 apply to and bar third party actions by a property owner 

defendant (in a premises liability action) for indemnity and/or 

contribution against architects involved in the design of the 

improvement to real property which the injured plaintiff alleges 

was dangerous and did not meet applicable building codes?

We conclude that it does.

We accept the facts as presented in the interlocutory transfer statement. 

See In re C.M., 163 N.H. 768, 770 (2012). We recite additional facts, for 

background only, as alleged in the complaint brought by John C. Rankin 

(Rankin) and his wife MaryAnne (collectively, the underlying plaintiffs) and in 

South Street Downtown Holdings, Inc.’s (South Street) third-party complaint. 

In March 2015, Rankin fell while leaving a business located at 70 South Main 

Street in Hanover (the property). The property is owned by South Street. In 

March 2017, the underlying plaintiffs sued South Street for negligence and loss 

of consortium, alleging that Rankin fell on an “inadequate and dangerous ramp 

or partial stair” that “did not meet applicable building codes.”

South Street, in turn, filed a third-party complaint against the thirdparty defendants, project architect TruexCullins and Partners Architects 

(TruexCullins) and landscape architect Wagner Hodgson, Inc. (Wagner 

Hodgson), seeking indemnity and/or contribution. South Street had hired the 

third-party defendants to serve as design professionals for renovations to the 

property that took place between 2002 and 2009, and were substantially 

completed by January 2009. South Street alleged that both third-party 

defendants were involved in designing the area in which Rankin allegedly fell. 

On appeal, South Street concedes that its “third-party action[] was brought 

more than 8 years after the date of substantial completion.”
3

Wagner Hodgson moved to dismiss on grounds that the claims against it 

are barred by the statute of repose, RSA 508:4-b (2010). The trial court found 

that “a substantial basis exists for a difference of opinion as to whether the 

current version of [RSA 508:4-b] applies to indemnity and/or contribution 

claims arising out of a deficiency in the creation of an improvement to real 

property,” and transferred the question now before us.

To answer the transferred question, we must engage in statutory 

interpretation.

The interpretation of a statute is a question of law, which we 

review de novo. In matters of statutory interpretation, we are the 

final arbiters of the legislature’s intent as expressed in the words of 

the statute considered as a whole. In construing its meaning, we 

first examine the language found in the statute, and when 

possible, we ascribe the plain and ordinary meanings to the words 

used. We interpret legislative intent from the statute as written 

and will not consider what the legislature might have said or add 

language that the legislature did not see fit to include. We 

interpret statutory provisions in the context of the overall statutory 

scheme. Absent an ambiguity, we will not look beyond the 

language of the statute to discern legislative intent.

Bank of N.Y. Mellon v. Dowgiert, 169 N.H. 200, 204 (2016) (citations omitted).

The statute at issue, RSA 508:4-b, currently provides, in relevant part:

Except as otherwise provided in this section, all actions to recover 

damages for injury to property, injury to the person, wrongful 

death or economic loss arising out of any deficiency in the creation 

of an improvement to real property, including without limitation 

the design, labor, materials, engineering, planning, surveying, 

construction, observation, supervision or inspection of that 

improvement, shall be brought within 8 years from the date of 

substantial completion of the improvement, and not thereafter.

RSA 508:4-b, I. The statute sets forth a limited number of exceptions. See

RSA 508:4-b, III, V, VI. None of the listed exceptions are applicable here. No 

explicit exception for indemnity or contribution is contained in the current 

statute. See RSA 508:4-b.

Each of the parties contends that the plain language of the statute 

supports its position. South Street focuses first upon the specific list of actions 

subject to the statute — “all actions to recover damages for injury to property, 

injury to the person, wrongful death or economic loss arising out of any 

deficiency in the creation of an improvement to real property” — and notes that 
4

actions for indemnity and contribution are not included in that list. Id. Citing 

the interpretive canon expressio unius est exclusio alterius, South Street

contends that “it must be presumed that the legislature excluded all other 

types of actions.” See Appeal of Cover, 168 N.H. 614, 622 (2016) (interpreting 

the expressio unius canon to mean “[n]ormally the expression of one thing in a 

statute implies the exclusion of another” (quotation omitted)). South Street

also argues that to interpret RSA 508:4-b as applying to indemnity and/or 

contribution actions would add language to the statute in violation of the rule 

that “[w]e interpret legislative intent from the statute as written and will not 

consider what the legislature might have said or add language that the 

legislature did not see fit to include.” Bank of N.Y. Mellon, 169 N.H. at 204. 

Finally, South Street argues that the words “all actions” in RSA 508:4-b cannot 

be read to include actions for indemnity and/or contribution without violating 

the rule that “all of the words of a statute must be given effect and that the 

legislature is presumed not to have used superfluous or redundant words.” 

Merrill v. Great Bay Disposal Serv., 125 N.H. 540, 543 (1984). According to

South Street, “[t]o read RSA 508:4-b to apply to any action regardless of the 

category of damage the claim seeks to recover would render the serial list in 

RSA 508:4-b, I[,] superfluous.”

The third-party defendants,1 on the other hand, point to the statute’s 

expansive language, covering “all actions to recover damages for injury to 

property, injury to the person, wrongful death or economic loss arising out of

any deficiency in the creation of an improvement to real property.” RSA 508:4-

b, I (emphases added). They note that we have broadly interpreted the 

statute’s “language [as] unambiguously encompass[ing] all types of claims, as 

long as they arise from a deficiency in the creation of an improvement to real 

property.” Phaneuf Funeral Home v. Little Giant Pump Co., 163 N.H. 727, 731

(2012) (emphasis added). They conclude that RSA 508:4-b bars the claims 

against them because “[i]ndemnity and contribution claims linked to buildingimprovement-deficiency claims are ‘actions’ to recover ‘economic loss’ that 

‘arise out of’ such improvements.”

South Street challenges two of the premises underlying the third-party 

defendants’ interpretation; namely, that the third-party action is a claim for 

“economic loss” and that it “arise[s] out of” a deficiency in the creation of an 

improvement to real property. South Street first asserts that “‘economic loss’ is 

a term of art which has acquired a meaning at common law” and that, 

pursuant to RSA 21:2, that term must be construed accordingly. See RSA 21:2 

(2012) (providing rule of statutory construction that “[w]ords and phrases shall 

be construed according to the common and approved usage of the language; 

 

1 Because TruexCullins and Wagner Hodgson make similar arguments on appeal and seek the 

same outcome, we do not differentiate their individual arguments but, rather, reference all of them 

as arguments of the third-party defendants. Similarly, where we address South Street’s response 

to an argument of one third-party defendant, we treat it as responding to an argument of both.
5

but technical words and phrases, and such others as may have acquired a 

peculiar and appropriate meaning in law, shall be construed and understood 

according to such peculiar and appropriate meaning”). South Street contends 

that “[t]his Court defines an economic loss as ‘that loss resulting from the 

failure of the product to perform to the level expected by the buyer and . . .

commonly measured by the cost of repairing or replacing the product.’” 

(Quoting Lempke v. Dagenais, 130 N.H. 782, 792 (1988).) It also cites Kelleher 

v. Marvin Lumber & Cedar Co., 152 N.H. 813 (2005), for the proposition that 

“economic loss is characterized as damage that occurs to the inferior product 

itself, through deterioration or non-accidental causes . . . [and] encompass[es]

both damage to the defective product itself and the diminution in value of the 

product because it is inferior in quality.” Kelleher, 152 N.H. at 835 (citation 

omitted). It then argues that because its third-party action is not one to 

recover damages to repair or replace the allegedly defective stairs or for the 

diminution in their value, it is not an action to recover damages for economic 

loss under the statute.

South Street’s reliance upon Lempke and Kelleher is misplaced. Lempke

involved structural problems in a recently constructed garage that required 

repair, and presented the question “whether a subsequent purchaser of real 

property may sue the builder/contractor on the theory of implied warranty of 

workmanlike quality for latent defects which cause economic loss, absent 

privity of contract.” Lempke, 130 N.H. at 783. Kelleher involved an action 

“seeking damages for the replacement costs of . . . defective windows, loss of 

value of the house in which the windows were installed and costs related to 

repairing water damage allegedly caused by the defective windows.” Kelleher, 

152 N.H. at 821. In each, we referenced, either explicitly, Kelleher, 152 N.H. at 

835-36, or implicitly, Lempke, 130 N.H. at 792, the “economic loss doctrine,”

which “is a common law rule that emerged with the advent of products liability”

but has been expanded in many jurisdictions to other tort cases, Plourde Sand 

& Gravel v. JGI Eastern, 154 N.H. 791, 794 (2007). It “is a judicially-created 

remedies principle that operates generally to preclude contracting parties from 

pursuing tort recovery for purely economic or commercial losses associated 

with the contract relationship.” Id. (quotation omitted).

The narrow definition of “economic loss” that South Street quotes from 

Lempke was applicable to the damages sought in that case (repair to a defective 

garage), Lempke, 130 N.H. at 783-84, and harkens back to the productsliability origins of the economic loss doctrine itself. The definition South Street

quotes from Kelleher was explicitly qualified as applying “[i]n the products 

liability context” and, again, related to the damages sought in that case, 

Kelleher, 152 N.H. at 835. Neither case defined the term “economic loss” for all 

purposes and in all contexts.

We have used the term in other contexts in which its meaning was 

clearly not related to the cost of repairing a defective product. See, e.g., State 
6

v. Hess Corp., 161 N.H. 426, 437 (2011) (agreeing with State, in determining 

the extent of its parens patriae authority to recover damages to New Hampshire 

waters from contamination by methyl tertiary butyl ether (MBTE), “that claims 

for diminution in value of private property, lost business expenditures and 

other business and economic losses resulting from MBTE contamination 

properly belong to private parties” (emphasis added)); McLaughlin v. Fisher 

Eng’g, 150 N.H. 195, 200 (2003) (upholding trial court’s decision to allow crossexamination of plaintiff’s economic expert, “[w]hen [he] testified about the likely 

economic loss to [accident victim’s] estate as a result of his early death,” on the 

potential effect of victim’s drug use on his estimated lifetime earnings

(emphasis added)).

We note, moreover, that the legislature has used the term in other 

contexts in which it cannot be construed as meaning the cost of repairing a 

defective product. See, e.g., RSA 458:16-a, II(l)(2) (2018) (providing that in 

ordering property settlement between divorcing parties, court may consider 

fault of either party if it caused the breakdown of the marriage and “[r]esulted 

in substantial economic loss to the marital estate or the injured party” 

(emphasis added)); RSA 638:26, III (2016) (providing that person found guilty of 

identity fraud shall “be ordered to make restitution for economic loss sustained 

by a victim as a result of such violation” (emphasis added)).

Accordingly, we disagree with South Street that the term “economic loss” 

has “acquired a peculiar and appropriate meaning in law” such that it should 

be “construed and understood according to” that meaning in RSA 508:4-b. 

RSA 21:2; see also Cont’l W. Ins. Co. v. Superior Fire Prot., Inc., No. 18-CV117-JL, 2019 WL 1318274, at *7 (D.N.H. Mar. 22, 2019) (concluding that “the 

term ‘economic loss’ in the construction statute of repose [RSA 508:4-b] is not 

a reference to the common-law term or doctrine”). Our task becomes, then, to 

apply the “plain and ordinary” meaning of that term. Bank of N.Y. Mellon, 169 

N.H. at 204; see RSA 21:2.

We agree with the third-party defendants that the plain and ordinary 

meaning of “economic loss” is a loss that is “financial[,] fiscal[,] [or] monetary.” 

(Quotations omitted.) See, e.g., 1 Shorter Oxford English Dictionary 794 (6th 

ed. 2007) (defining “economic,” in relevant part, as “relating to monetary 

considerations, financial”); see also Roget’s 21st Century Thesaurus 289 (1992)

(including, as synonyms for “economic,” “fiscal,” “monetary,” and “pecuniary”). 

This meaning accords with the term’s usage in the above-cited cases and 

statutes.

Having so defined “economic loss,” we conclude that South Street’s thirdparty action for indemnity and/or contribution falls within the meaning of that 

term. As the United States District Court for the District of New Hampshire 

has noted: “Indemnification is always sought as compensation for economic 

losses, which are the damages paid to a third person, whether the underlying 
7

loss is economic or the result of physical injury or damage to property.” 

Johnson v. Capital Offset Co., Inc., No. 11-CV-459-JD, 2013 WL 5406619, at 

*9 (D.N.H. Sept. 25, 2013).

South Street next contends that its indemnity claims do not fall within 

the plain language of RSA 508:4-b because they are not “actions to recover 

damages . . . arising out of any deficiency in the creation of an improvement to 

real property,” RSA 508:4-b, I, but, rather, are “actions to recover damages for 

breach of the express and/or implied duty to indemnify aris[ing] from 

contract.” South Street principally relies upon two cases from other 

jurisdictions: Ray & Sons Masonry v. United States Fidelity & Guaranty, 114 

S.W.3d 189 (Ark. 2003), and South Dearborn School Building Corp. v. 

Duerstock, 612 N.E.2d 203 (Ind. Ct. App. 1993). We find these cases 

distinguishable.

Each case involved an express contractual duty to indemnify. See Ray & 

Sons, 114 S.W.3d at 196; South Dearborn, 612 N.E.2d at 205. Each also

involved a statute of repose barring certain actions to recover damages for or 

caused by construction deficiencies. See Ray & Sons, 114 S.W.3d at 200 

(applying statute of repose covering any “action in contract . . . to recover 

damages caused by any deficiency” in construction (quotation omitted)

(emphasis added)); South Dearborn, 612 N.E.2d at 205 (applying statute of 

repose covering, in relevant part, any “action to recover damages whether 

based on contract, tort, nuisance, or otherwise, for . . . any deficiency” in 

construction (quotation omitted) (emphases added)). Finally, each concluded 

that the indemnity action at issue did not fall within the applicable statutory 

language. Thus, in South Dearborn, the court reasoned that if the plaintiff 

were to recover from the defendant, “the damages recovered would not be ‘for’ a 

deficiency or any injury to property or person arising out of a deficiency. 

Instead, any damages [the plaintiff] would be entitled to recover would be 

grounded solely in rights granted pursuant to the contract.” South Dearborn, 

612 N.E.2d at 209. Similarly, the court in Ray & Sons held:

[The applicable statute] provides a statute of repose on actions to 

recover damages caused by a deficiency in the construction of an 

improvement to real property. At issue before us is an action 

alleging breach of the indemnity provision in the construction 

contract, or in other words, an alleged breach of the contractual 

obligation to indemnify. This case is not one based on damages 

from alleged defective construction. Therefore, the statute of 

repose is not applicable to this case.

Ray & Sons, 114 S.W.3d at 202.

The statutory language applicable here, however, is broader than the 

language construed in South Dearborn and Ray & Sons. RSA 508:4-b applies, 
8

in relevant part, to “all actions to recover damages for . . . economic loss arising 

out of any deficiency in the creation of an improvement to real property,” not 

just to “all actions to recover damages for . . . any deficiency in the creation of 

an improvement to real property.” RSA 508:4-b, I (emphasis added). As 

previously noted, indemnity and contribution actions are actions to recover for 

economic loss. See Johnson, 2013 WL 5406619, at *9. We therefore conclude 

that inclusion of the phrase “economic loss arising out of any deficiency” 

broadens New Hampshire’s construction statute of repose to include indirect 

actions such as those for indemnity and/or contribution. To construe RSA 

508:4-b in accordance with the reasoning applied in South Dearborn and Ray 

& Sons would require us to ignore a portion of the statute’s language, which we 

decline to do. See State v. Bobola, 168 N.H. 771, 775 (2016) (declining to 

ignore language in provision of Criminal Code “as we must give effect to all 

words in a statute” (quotation and brackets omitted)); see also Merrill, 125 N.H. 

at 543 (stating rule of statutory construction that “all of the words of a statute 

must be given effect and that the legislature is presumed not to have used 

superfluous or redundant words”).

In addition, our construction of RSA 508:4-b comports with the statute’s 

purpose, which is to relieve potential defendants in the building trades “from 

infinite liability perpetuated by the discovery rule.” Big League Entm’t. v. Brox 

Indus., 149 N.H. 480, 484 (2003). In amending the statute in 1990, the 

legislature stated:

The general court finds that, under current law, builders, 

designers, architects and others in the building trade are subject 

to an almost infinite period of liability. This period of liability, 

based on the discovery rule, particularly affects the building 

industry and will eventually have very serious adverse effects on 

the construction of improvements to real estate in New Hampshire. 

Therefore, it is in the public interest to set a point in time after 

which no action may be brought for errors and omissions in the 

planning, design and construction of improvements to real estate. 

This act is determined to be in the public interest and to promote 

and balance the interests of prospective litigants in cases involving 

planning, design and construction of improvements to real 

property. 

Laws 1990, 164:1.

We agree with the third-party defendants that to read the statute as not 

applying to actions for indemnity and contribution would contravene the 

statute’s purpose. As courts in other jurisdictions have observed in similar 

cases, allowing indemnity and/or contribution actions against those in the 

building trades, notwithstanding the bar on a direct action, would allow an end 
9

run around the statute of repose. As the Court of Appeals of Georgia 

explained:

These decisions all defer to the legislature’s intent, in 

enacting statutes of ultimate repose, to establish a reasonable 

outside time limit beyond which architects, engineers, and 

contractors are insulated from suit based upon their work in 

constructing improvements to real estate. Without such 

protection, such persons would be exposed to liability for many 

years after losing control over the improvements and their use and 

maintenance. Allowing a claim for indemnification under these 

circumstances would indirectly thwart the intention of the 

legislature.

Gwinnett Place Assoc. v. Pharr Engineering, 449 S.E.2d 889, 891 (Ga. Ct. App. 

1994) (citations omitted); see also Facility Constr. Mgmt. Inc. v. Ahrens 

Concrete Floors, Inc., No. 1:08-CV-01600-JOF, 2010 WL 1265184, at *8 (N.D. 

Ga. Mar. 24, 2010) (noting that while plaintiff’s claims “may be couched in 

terms of indemnification and defense, . . . [p]laintiff is attempting to recover for 

losses caused by deficient construction or injury to property caused by 

deficient construction,” and “cannot be permitted to do indirectly what the law 

does not permit it to do directly”).

The underlying plaintiffs’ action against South Street seeks damages 

arising from South Street’s alleged failure “to provide a reasonably safe ramp or 

stair in the area between its doors and the sidewalk.” We agree with the thirdparty defendants that should the underlying plaintiffs prevail in their claims 

against South Street, the payment of damages by South Street to the 

underlying plaintiffs “would be an ‘economic loss’ that ‘arises from’ the alleged 

deficiency in the subject stairs and ramp.” Moreover, we disagree with South 

Street’s contention that allowing its indemnity claim to survive the statute of 

repose would not frustrate the purpose of that statute because “indemnity 

damage claims . . . are not dependent upon proof of professional negligence.” 

The underlying plaintiffs’ action against South Street alleges a number of 

defects in the ramp or stair on which Rankin allegedly fell, including that it was 

“too steep” and was “not designed, built, or maintained with appropriate 

handrails,” and, therefore, did not meet applicable building codes. These 

alleged defects constitute “deficienc[ies] in the creation of an improvement to 

real property” under RSA 508:4-b, I. Even if South Street does not have to 

prove professional negligence directly to maintain its indemnity claims, those 

claims seek to recover damages for such alleged professional negligence 

indirectly by recovering any damages paid to the underlying plaintiffs on their 

claims alleging deficient design and/or construction. We conclude that such 

indirect recovery would frustrate the purpose of RSA 508:4-b. Accordingly, we 

reject South Street’s argument that its third-party claims do not fall within RSA 

508:4-b’s “arising out of any deficiency” language. RSA 508:4-b, I.
10

South Street next invokes the doctrine that “statutes in derogation of the 

common law are to be interpreted strictly” and that “we will not interpret a 

statute to abrogate the common law unless the statute clearly expresses that 

intent.” Sweeney v. Ragged Mt. Ski Area, 151 N.H. 239, 241 (2004) (quotation 

omitted), superseded by statute on other grounds as stated in Martin v. Pat’s 

Peak, 158 N.H. 735, 737 (2009). South Street notes that rights of indemnity 

and contribution are common law rights. See id. (stating that “immunity 

provisions barring the common law right to recover are to be strictly 

construed”). It then argues that “[t]he Legislature did not provide a clear 

expression that it intended RSA 508:4-b to bar the common law right to bring 

indemnity and/or contribution damage claims. To the contrary, however, 

because indemnity and/or contribution claims fit within the plain language of 

RSA 508:4-b, we conclude that the legislature has clearly expressed the intent 

to bar such claims.

South Street nevertheless contends that the legislature’s intent to 

exclude indemnity and contribution claims from the statute of repose is 

evidenced in the 1990 amendment to RSA 508:4-b. Prior to June 26, 1990, the 

statute provided:

No action to recover damages for injury to property, real or 

personal, or for an injury to the person, or for bodily injury or 

wrongful death, arising out of any deficiency in the design, 

planning, supervision or observation of construction, or 

construction of an improvement to real property, nor any action for 

contribution or indemnity for damages sustained on account of 

such injury, may be brought against any person performing or 

furnishing the design, planning, supervision of construction or 

construction of such improvement to real property more than six

years after the performance or furnishing of such services and 

construction. This limitation shall not apply to any person in 

actual possession and control as owner, tenant or otherwise, of the 

improvement at the time the defective and unsafe condition of such 

improvement constitutes the proximate cause of the injury for 

which it is proposed to bring an action.

RSA 508:4-b (1968) (amended 1990) (emphasis added); see Laws 1990, 164:4

(providing effective date of amendment).

South Street argues that because the pre-1990 version of the statute 

explicitly mentioned actions for contribution and indemnity, and the current 

version omits such reference, the legislature must have intended to exclude 

such claims from the statute of repose. The third-party defendants, on the 

other hand, contend that because the current version of RSA 508:4-b is 

unambiguous, it would be improper to consider the prior version of the statute 

in construing the statute currently in force. See Bank of N.Y. Mellon, 169 N.H. 
11

at 204 (“Absent an ambiguity, we will not look beyond the language of the 

statute to discern legislative intent.”).

“[T]he legislature’s choice of language is deemed to be meaningful,” and

“we generally assume that whenever the legislature enacts a provision, it has in 

mind previous statutes relating to the same subject matter.” State Employees 

Assoc. of N.H. v. N.H. Div. of Personnel, 158 N.H. 338, 345 (2009) (quotations

and brackets omitted). Accordingly, we have recognized that “[o]rdinarily, any 

material change in the language of the original act is presumed to indicate a 

change in legal rights.” Appeal of Manchester Transit Auth., 146 N.H. 454, 458 

(2001) (quotation and ellipsis omitted). While in some cases we have explicitly 

found the statutory language under consideration to be ambiguous before 

applying this rule, see, e.g., id., we have not uniformly done so, see, e.g., 

Conrad v. Hazen, 140 N.H. 249, 251-52 (1995).

We decline, in the instant case, to determine whether a finding of 

ambiguity is required, because we conclude that South Street’s argument is 

unavailing even if the rule were to be applied. We recognize that the 1990 

amendment to RSA 508:4-b constituted a material change in the language of 

the prior act. Even presuming, however, that the change indicates the 

legislature’s intent to alter legal rights, it does not necessarily follow that the 

intended alteration was the removal of indemnity and contribution actions from 

the statute’s bar. Among other textual changes, the amendment deleted the 

phrase “nor any action for contribution or indemnity for damages sustained on 

account of such injury,” RSA 508:4-b (1968), and added the term “economic 

loss” to the phrase “arising out of any deficiency in the creation of an 

improvement to real property,” RSA 508:4-b, I. We agree with the third-party 

defendants that the new statutory language is broader than the previouslyused phrase. Accordingly, we cannot conclude that the legislature intended to 

write indemnity and contribution actions out of the statute when it added 

language that covers those actions and more. Cf. Cont’l W. Ins. Co., 2019 WL 

1318274, at *6 (concluding that while the 1990 amendment to RSA 508:4-b 

“does not explicitly address indemnification and contribution claims, it 

contains additional new language that unambiguously encompasses those 

claims”).

South Street next argues that “[a]bsent clear legislative intent indicating 

otherwise, RSA 508:4-b should not be extended in contravention of . . . the 

State’s general policy of holding negligent parties accountable.” Because we 

find clear legislative intent in the plain language of RSA 508:4-b, we reject this 

argument.

South Street also argues that if we construe RSA 508:4-b “to bar South 

Street’s indemnity and/or contribution damage claim . . . it would impose upon 

South Street a duty to assume full responsibility for [the third-party 

defendants’] negligence, thereby granting [them] a protection which, if . . .
12

sought via contract, would be prohibited as against public policy pursuant to 

RSA 338-A:1.” We disagree. RSA 338-A:1 provides:

Any agreement or provision whereby an architect, engineer, 

surveyor or his agents or employees is sought to be held harmless 

or indemnified for damages and claims arising out of 

circumstances giving rise to legal liability by reason of negligence 

on the part of any said persons shall be against public policy, void 

and wholly unenforceable.

RSA 338-A:1 (2009). Thus, RSA 338-A:1 prohibits architects, among other 

professionals, from contractually absolving themselves completely from liability 

for professional negligence by contract. RSA 508:4-b, by contrast, does not 

provide absolute immunity from professional negligence but, rather, limits the 

time in which such claims can be brought. Architects remain liable for their 

professional negligence for 8 years, or longer if expressly warranted or 

guaranteed in writing, after substantial completion of the improvements on 

which they work. See RSA 508:4-b, III.

Finally, South Street contends, for several reasons, that “[e]xcepting 

indemnity and contribution damage claims from the statute[’]s bar would 

impose very few burdens on the design profession.” It further argues that 

“[t]here is no public policy reason why design professionals should be afforded 

liability protection against long tail claims which is not available to other 

professionals” such as doctors and lawyers. These argument are made in the 

wrong forum, however, as “[m]atters of public policy are reserved for the 

legislature.” In the Matter of Ross & Ross, 169 N.H. 299, 303 (2016).

For all of the foregoing reasons, we answer the transferred question in 

the affirmative.

Remanded.

LYNN, C.J., and BASSETT, HANTZ MARCONI, and DONOVAN, JJ., 

concurred.