I dissent. In Chandler v. Madsen (1982), 197 Mont.
234, 642 P.2d 1028, this Court took a giant step forward in
holding that a builder-vendor of a new home impliedly
warrants that the residence is constructed in a workman-like
manner and is suitable for habitation. We note that two
major policy considerations support such a warranty. The
first being that the buyer is in an unequaled bargaining
position, and second that the builder-vendor is in a better
position to discover, examine, and prevent defects. I feel
the majority's holding in this opinion has taken a giant step
backwards in protecting the consumer.
The Samuelsons had just paid $155,000 for their home.
The affected areas in their basement included a guest
bedroom, a storage area, and a recreation room. To find that
their home was not damaged sufficiently to warrant our
following the case of Chandler, shocks my credibility. As
noted in the facts of this opinion, it cost $11,158.90 to
properly remedy the problems and make the home livable. To
hold that having as much as six inches of water in the
basement in a new home does not violate the warranty of
habitability is, in my view, a mistake. Had the basement not
been repaired at a cost of over $11,000 by another
contractor, about all that it could have been used for would
have been a fishery during the periods that it leaked.
Surely, a homeowner is entitled to m8re than that.