Willard v. PARSONS HILL PARTNERSHIP, 2005 VT 69 (2005)

Citation: Willard v. PARSONS HILL PARTNERSHIP, 2005 VT 69 (2005)
Parent Document: Willard v. PARSONS HILL PARTNERSHIP, 2005 VT 69 (2005)
Jurisdiction: Vermont (state)
Effective Date: 2005-08-05
Original Source: https://www.courtlistener.com/opinion/2081593/willard-v-parsons-hill-partnership/ ↗

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¶ 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. *322Indeed, 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.

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