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Willard v. Parsons Hill Partnership8/5/2005
ot likely to be discovered by the tenant.' " Id. (quoting Aspon v. Loomis, 816 P.2d 751, 756 (Wash. Ct. App. 1991)). The court sent the case back for trial on the common-law failure-to-disclose claim, as well as other claims, including a breach of the implied warranty of habitability.
49. The result in this case is that plaintiffs are, in effect, getting double liability from the same theory. Plaintiffs were fully aware that negligent failure to disclose a latent defect known to the landlord was actionable, and in each of the three complaints they filed, they pled this cause of action. By the third amended complaint, they had reached the point, however, that the proliferation of defendants and causes of actions, leading in turn to cross-claims and third-party claims, was seriously slowing the progress of the case. As a result, they settled with all defendants except Parsons Hill Partnership and the Rooney family defendants. Part of the terms of the settlement required them to amend the complaint to delete claims of negligent failure to disclose against the remaining defendants and to go forward with only claims based on "active fault" in the breach of the implied covenant of habitability. The transcripts of the hearings and the relevant documents show that this decision was made because the settling defendants wanted to eliminate the risk that the remaining defendants could transfer liability to them on a theory of indemnity or contribution. Indeed, because the final version of the complaint raised only a claim of breach of warranty of habitability and required proof of "active fault," proof that would not otherwise be required on a theory of breach of warranty of habitability, the trial judge granted summary judgment to all the settling defendants on the claims of the remaining defendants for indemnity.
50. While the terms of the settlement are not disclosed, plaintiffs received value for dropping their tort claim that remaining defendants negligently failed to disclose a latent defect known to them. Now they want to assert the same theory under the rubric of implied warranty of habitability. No unfairness is caused by denying plaintiffs this additional liability route. They could have gone to trial against defendants under the common-law theory with no elements to prove beyond those in their current complaint.
51. The majority's illogical approach is most apparent from its conclusion about the 2000 amendment to 9 V.S.A. § 4458(a), which allows notice to come from "a governmental entity or a qualified independent inspector." 1999, No. 115 (Adj. Sess.), § 6. The majority concludes that: " ith this amendment, the Legislature has now brought cases like plaintiffs' within the ambit of the statute, thus supporting our view that the former § 4458(a) did not cover the entire range of habitability claims." Ante, 24. Our law is that an amendment is intended to change the meaning of a statute unless a clarification of pre-existing law is clearly indicated. See State v. Thompson, 174 Vt. 172, 178, 807 A.2d 454, 460 (2002); Tarrant v. Dep't of Taxes, 169 Vt. 189, 198, 733 A.2d 733, 740 (1999); Jones v. Dep't of Employment Sec., 140 Vt. 552, 555, 442 A.2d 463, 464 (1982). In this case, the amendment adding a new class of persons who can provide notice is not clearly indicated as a clarification, and thus, it is intended to change the law. According to the majority's theory, however, this change was unnecessary because the original law didn't require notice for latent defects. The amendment is inconsistent with the majority's holding that the RRAA does not apply to latent defects.
52. I have further concerns about the majority's treatment of the amendment. Despite the fact t
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