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DRAFT FOR ATTORNEY REVIEW — NOT FINAL

Heath v. Palmer, 181 Vt. 545 (2006)

Citation
Heath v. Palmer, 181 Vt. 545 (2006)
Parent Document
Heath v. Palmer, 181 Vt. 545 (2006)
Jurisdiction
Vermont (state)
Effective Date
2006-11-20

Full Text

1,594 chars
¶ 6. Plaintiffs first contend that the court erred in construing the warranty *547policy to limit defendants’ liability to defects reported within one year of the closing. The general rule is that exclusions or modifications of warranties must be conspicuous and unambiguous. See 9A V.S.A. § 2-316(2) (exclusions or modifications of implied warranty of merchantability and fitness in sale of goods must be conspicuous and in writing); Bolkum v. Staab, 133 Vt. 467, 469-70, 346 A.2d 210, 211 (1975) (applying statutory provision relating to implied warranty in sale of goods to structural defects in home). We are not persuaded that the policy placed a clear and unambiguous twelvemonth limit on defendants’ liability for latent defects under the implied warranties of habitability and good workmanship. The policy terms contained no express exclusion of either implied warranty, and contained no clear and unambiguous provision — agreed to by plaintiffs — waiving defendants’ liability for such defects not reported within one year of closing. See 14 R. Powell et al., Powell on Real Property § 84A.06[8], at 84A-62 (1994) (noting general rule that disclaimer of implied warranty for builder of home may be upheld if it is specific, conspicuous, and mutually agreed upon by all parties); Hoagland v. Celebrity Homes, Inc., 572 P.2d 493, 494 (Colo. Ct. App. 1977) (limitation in letter of warranty did not apply to implied warranties because the letter “eontain[ed] no words of limitation that would indicate the intention of the builder to abrogate or limit his common law implied warranties”).