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Willard v. Parsons Hill Partnership8/5/2005
nification in the event that tenants prevail on their warranty-of-habitability claims. The express indemnity agreement between Taggart Brothers and the partnership provides:
4.18 INDEMNIFICATION
4.18.1 To the fullest extent permitted by law, the Contractor shall indemnify, and hold harmless the [partnership] and the Architect and their agents and employees from and against all claims, demands, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from the performance of the Work, provided that any such claim, damage, loss or expense (1) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) including the loss of use resulting therefrom, and (2) is caused in whole or in part by any negligent act or omission of the Contractor, any Subcontractor, or anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder.
(Emphasis added.) According to the agreement's terms, Taggart Brothers, as indemnitor, must pay defendants-indemnitees only for those claims, demands, losses, and expenses "caused in whole or in part" by Taggart Brothers' negligent act or omission. The trial court concluded that plaintiffs' common-law warranty of habitability claims fall outside of this provision's coverage. We agree.
41. Defendants cannot use the express indemnification agreement to seek reimbursement for habitability damages that plaintiffs may collect because the injury that will be redressed by plaintiffs' claims was not "caused in whole or in part by any negligent act or omission" on the part of Taggart Brothers. In this case, defendants' liability for breach of the common-law warranty of habitability will attach only if plaintiffs can prove that the partnership failed to remedy the water problem within a reasonable time after receiving notice of the contamination from the State. Whether Taggart Brothers' negligence caused the contamination in the first place is irrelevant to the warranty-of-habitability liability determination. A tenant is not automatically entitled to habitability damages the instant a defect arises; such damages are available only upon a landlord's knowing failure to timely remedy the defect.
42. Any money that the partnership must pay out to plaintiffs as a result of the claim before us will be attributable exclusively to its own failings. Taggart Brothers had no control over defendants' decision not to remedy the water contamination sooner than they did. As the trial court correctly stated, "only the landlords could breach the warranty of habitability." Accordingly, we affirm.
The grant of summary judgment in favor of Parsons Hill Partnership, Yvonne Rooney, William Rooney, and Catherine Rooney is reversed and remanded. The dismissal of the defendants' cross-claims for indemnification from Taggart Brothers, Inc. is affirmed.
DOOLEY, J., dissenting.
43. Plaintiffs in this case seek redress for their landlord's failure to notify them of chemical contamination, that the landlord knew about, in the water serving their residences. Although plaintiffs alleged a number of claims arising from the landlord's inaction, they decided to pursue only their warranty-of-habitability claim in the superior court. Obviously sympathetic to plaintiffs' situation, the majority holds that the Legislature did not intend the Vermont Residential Rental Agreements Act (RRAA), 9 V.S.A., chapter 137, to cover latent defects known to the landlord. Thus, under the majority's holding, a ten
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