                                       2018 IL 122022



                                         IN THE
                                SUPREME COURT
                                             OF
                           THE STATE OF ILLINOIS




                                    (Docket No. 122022)

 SIENNA COURT CONDOMINIUM ASSOCIATION, Appellee, v. CHAMPION ALUMINUM
           CORPORATION et al. (BV & Associates, Inc., et al., Appellants).


                              Opinion filed December 28, 2018.



         JUSTICE BURKE delivered the judgment of the court, with opinion.

         Chief Justice Karmeier and Justices Thomas, Garman, Theis, and Neville
      concurred in the judgment and opinion.

         Justice Kilbride dissented, with opinion.



                                         OPINION

¶1       In this case, we must determine whether the purchaser of a newly constructed
      home may assert a claim for breach of an implied warranty of habitability against a
      subcontractor who took part in the construction of the home, where the
      subcontractor had no contractual relationship with the purchaser. For the following
     reasons, we hold that the purchaser may not.


¶2                                        Background

¶3       The plaintiff, Sienna Court Condominium Association, is a condominium
     association governing the Sienna Court Condominiums, a two-building,
     111-residential-unit property located in Evanston, Illinois. In 2013, plaintiff filed a
     verified complaint in the circuit court of Cook County on behalf of the individual
     unit owners in the condominium buildings. In its complaint, plaintiff alleged that
     Sienna Court Condominiums was a newly constructed property developed by TR
     Sienna Partners, LLC (TR Sienna), and that TR Sienna had marketed and sold the
     buildings’ condominium units to individual purchasers. Plaintiff further alleged
     that, at the time the units were sold by TR Sienna to their purchasers, the
     condominium buildings contained a number of latent defects that resulted in water
     infiltration and other conditions that rendered both the individual units and
     common areas of the buildings unfit for their intended purpose of habitation.

¶4       As ultimately amended, plaintiff’s complaint contained 10 counts. Count I of
     the complaint alleged breach of an express warranty against TR Sienna. The
     remaining nine counts of the complaint asserted claims for breach of an implied
     warranty of habitability against (1) TR Sienna; (2) the general contractor; (3) the
     architect and engineering design firms; (4) material suppliers and (5) several
     subcontractors, including the defendants in this case, Don Stoltzner Mason
     Contractor, Inc.; BV and Associates, Inc., d/b/a Clearvisions, Inc.;
     Lichtenwald-Johnston Ironworks Company; and Metalmaster Roofmaster, Inc.
     Relevant to the issues in this case, the complaint alleged that each condominium
     unit and the common elements of the buildings were subject to an implied warranty
     of habitability extending from “each and every subcontractor” and that the
     subcontractors had therefore warranted that the buildings, or the portions
     constructed by them, would be suitable and fit for their intended purpose of
     habitation.

¶5       Prior to the filing of plaintiff’s complaint, both TR Sienna and the general
     contractor were declared bankrupt by order of the United States Bankruptcy Court
     for the Northern District of Illinois. Plaintiff sought and was granted relief from the
     automatic bankruptcy stay so that it could pursue its claims against TR Sienna and



                                              -2-
     the general contractor to the extent of their available insurance. See 215 ILCS
     5/388 (West 2010) (the bankruptcy or insolvency of an insured shall not relieve the
     insurer from its liabilities in case of any loss occasioned during the term of the
     policy). Subsequent discovery revealed that TR Sienna and the general contractor
     both had two separate insurance policies, each providing coverage of $1 million per
     occurrence with $2 million aggregate limits. Discovery further revealed that
     plaintiff had recovered approximately $308,000 from TR Sienna through a
     warranty escrow fund that TR Sienna had been required to establish under a City of
     Evanston ordinance.

¶6       Defendants and the material suppliers filed a joint motion to dismiss counts III
     through VI and count IX of plaintiff’s complaint (the counts that were directed
     against them), asserting that they were not subject to an implied warranty of
     habitabililty. At subsequent hearings on this motion, the parties’ discussion
     centered largely on the appellate court’s decision in Minton v. The Richards Group
     of Chicago, 116 Ill. App. 3d 852 (1983). In Minton, the appellate court held that,
     where the purchaser of a newly constructed home “has no recourse to the
     builder-vendor and has sustained loss due to the faulty and latent defect in their new
     home caused by the subcontractor, the warranty of habitability applies to such
     subcontractor.” Id. at 855. Focusing on the word “recourse,” defendants argued that
     the plaintiff in this case had recourse from TR Sienna in the form of insurance
     policies and the warranty escrow fund and, therefore, under Minton, no implied
     warranty of habitability could exist. Plaintiff, in contrast, contended that the
     existence of potential or actual recourse from the developer-vendor was not the
     determinative factor in establishing an implied warranty of habitability with a
     subcontractor. Rather, according to plaintiff, the only relevant factor was whether
     the developer-vendor had been declared legally insolvent. Because that had
     occurred here, plaintiff maintained that an implied warranty of habitability existed
     with defendants.

¶7       The circuit court denied defendants’ motion to dismiss. Thereafter, defendants
     moved for the circuit court to certify that its order denying the motion merited
     discretionary appeal under Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010),
     because it involved questions of law to which there was a substantial dispute and
     the resolution of the questions would materially advance the litigation. The circuit




                                             -3-
     court granted that request and, as required under the rule, identified the pertinent
     questions of law as follows:

            “a) Does the existence of an insolvent developer’s and/or insolvent general
        contractor’s liability insurance policy(ies) bar a property owner from
        maintaining a cause of action for breach of implied warranty of habitability
        against subcontractors and/or material suppliers, which are not in privity with
        the property owner, under Minton v. Richards, 116 Ill. App. 3d 852 (1st Dist.
        1983) or its progeny?

            b) Does the potential recovery against an insolvent developer’s and/or,
        insolvent general contractor’s liability insurance policy(ies) constitute ‘any
        recourse’ under Minton v. Richards, 116 Ill. App. 3d 852 (1st Dist. 1983) or its
        progeny, thereby barring a property owner’s cause of action for breach of
        implied warranty of habitability against subcontractors and/or material
        suppliers, which are not in privity with the property owner?

            c) Does the actual recovery of any proceeds from an insolvent developer’s
        ‘warranty fund,’ which was funded by the now insolvent developer with a
        percentage of the sales proceeds from the sale of the property, bar a property
        owner from maintaining a cause of action for breach of implied warranty of
        habitability against subcontractors and/or material suppliers, which are not in
        privity with the property owner, under *** Minton v. Richards, 116 Ill. App. 3d
        852 (1st Dist. 1983) or its progeny?

           d) Does the actual recovery of any proceeds from an insolvent developer’s
        ‘warranty fund’ constitute ‘any recourse’ under Minton v. Richards, 116 Ill.
        App. 3d 852 (1st Dist. 1983) or its progeny, thereby barring a property owner’s
        cause of action for breach of implied warranty of habitability against
        subcontractors and/or material suppliers, which are not in privity with the
        property owner?”

¶8       The appellate court granted leave to appeal. The Rule 308 appeal was
     consolidated with two additional appeals: (1) an appeal by the plaintiff of an order
     dismissing its claims for breach of an implied warranty of habitability against the
     the architect, engineering design firms, and material suppliers and (2) an appeal




                                            -4-
       from the general contractor of an order dismissing its counterclaims against the
       subcontractors and material suppliers. 2017 IL App (1st) 143364. 1

¶9         With respect to defendants’ Rule 308 appeal, the appellate court held that legal
       insolvency, rather than an inquiry into the availability of recourse, determines
       whether a claim for breach of an implied warranty of habitability may be asserted
       against a subcontractor. Id. ¶¶ 75-99. The appellate court also rejected defendants’
       alternative argument that where a homeowner has no contractual relationship with
       a subcontractor there can be no implied warranty of habitability and, thus, Minton
       was wrongly decided. Id. ¶¶ 96-98.

¶ 10       We granted defendants’ petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Mar.
       15, 2016).


¶ 11                                                Analysis

¶ 12       This appeal is brought pursuant to Illinois Supreme Court Rule 308 (eff. Feb.
       26, 2010). Rule 308 permits the discretionary appeal of an otherwise unappealable
       interlocutory order of the circuit court where the court has certified that the order
       involves a question of law to which there is a substantial dispute and that resolution
       of the question will materially advance the litigation. Id. Our review is de novo.
       Moore v. Chicago Park District, 2012 IL 112788, ¶ 9.

¶ 13       In this case, the questions certified by the circuit court ask whether a plaintiff
       homeowner’s claims against a subcontractor for breach of an implied warranty of
       habitability are barred where either the plaintiff has potential recourse from
       insurance policies or where actual proceeds are received by the plaintiff from a
       warranty escrow account. As defendants point out, underlying these certified
       questions is the general assumption that, at least in some instances, it is appropriate
       to recognize a claim for breach of an implied warranty of habitability against the
       subcontractors of a newly constructed home, even though the subcontractors have
       no contractual relationship with the homeowner. Defendants challenge this

           1
            The appellate court concluded that the material suppliers were not subject to an implied
       warranty of habitability for reasons unrelated to Minton. The material suppliers are not part of this
       appeal.




                                                      -5-
       assumption, arguing that, where there is no contractual privity between a
       subcontractor and a homeowner, there is no implied warranty of habitability.
       Plaintiff in its brief does not dispute that we may consider this threshold argument,
       and we agree. There is no point in determining whether recovery from a
       subcontractor depends on the availability of recourse from an insolvent
       developer-vendor if the implied warranty of habitability itself does not exist. See,
       e.g., Fireman’s Fund Insurance Co. v. SEC Donohue, Inc., 176 Ill. 2d 160, 164-66
       (1997) (considering underlying premise of Rule 308 questions). Accordingly, we
       modify the questions certified by the circuit court to add a threshold inquiry: May
       the purchaser of a newly constructed home assert a claim for breach of an implied
       warranty of habitability against a subcontractor who took part in the construction of
       the home, where the subcontractor had no contractual relationship with the
       purchaser? See, e.g., Hampton v. Metropolitan Water Reclamation District of
       Greater Chicago, 2016 IL 119861, ¶ 10 (modifying Rule 308 questions); De Bouse
       v. Bayer AG, 235 Ill. 2d 544, 556-57 (2009); Boyd v. Travelers Insurance Co., 166
       Ill. 2d 188, 192-93 (1995) (same). We turn now to this question.

¶ 14       The implied warranty of habitability for newly constructed homes was first
       recognized by this court in Petersen v. Hubschman Construction Co., 76 Ill. 2d 31
       (1979). In Petersen, this court held that an implied warranty of habitability protects
       the first purchaser of a new house against latent defects that would render the house
       not reasonably fit for its intended use. The court stated that it was necessary to
       recognize such a warranty due to the significant changes in the construction
       methods and marketing of new houses that had arisen in the modern era. The court
       explained that many “new houses are, in a sense, now mass produced,” that the
       buyer often purchases the house “from a model home or from predrawn plans,” and
       that the buyer of a newly constructed house “has little or no opportunity to inspect”
       the construction. Id. at 40. The court stated that the purchaser “must rely upon the
       integrity and the skill of the builder-vendor” and concluded that the “vendee has a
       right to expect to receive that for which he has bargained and that which the
       builder-vendor has agreed to construct and convey to him, that is, a house that is
       reasonably fit for use as a residence.” Id. For these reasons, the court determined
       that recognition of an implied warranty of habitability was appropriate.

¶ 15       Importantly, Petersen stressed that the implied warranty of habitability is based
       in the contract of sale. It arises, the court explained, “by virtue of the execution of




                                                -6-
       the agreement between the vendor and the vendee.” Id. at 41. The warranty exists
       “as an independent undertaking collateral to the covenant to convey” that relaxes
       the rule of caveat emptor and the doctrine of merger, and it should be understood as
       “an implied covenant by the builder-vendor that the house which he contracts to
       build and to convey to the vendee is reasonably suited for its intended use.” Id.

¶ 16      In addition, the Petersen court recognized that, while the implied warranty of
       habitability is a “creature of public policy,” it could nevertheless be waived by the
       purchaser. Id. at 43. While finding that any waiver provision would have to be
       conspicuous and fully disclose its consequences, the Petersen court determined that
       such a waiver would not be against public policy. Id.

¶ 17       Subsequent to Petersen, this court has never held that a homeowner may pursue
       a claim for breach of an implied warranty of habitability against a subcontractor.
       Plaintiff maintains that we should recognize such a cause of action now. Plaintiff
       acknowledges the contractual origins of the implied warranty of habitability and
       further acknowledges that neither it nor the individual condominium owners at
       issue in this case had contracts with the defendant subcontractors. Nevertheless,
       plaintiff maintains that its cause of action should proceed.

¶ 18       Plaintiff analogizes to the law of personal injury and strict products liability.
       Plaintiff points out that product liability law has its origins in the concepts of
       implied warranties and contract law, and that many of the early decisions limited
       the right to recover for personal injuries from defective products to those who were
       in contractual privity with the manufacturer. See, e.g., Winterbottom v. Wright
       (1842) 152 Eng. Rep. 402; 10 M. & W. 109. Over time, however, product liability
       law evolved to the point that contractual privity was no longer required, and the
       action to recover against the manufacturer came to be recognized as a tort. See, e.g.,
       Suvada v. White Motor Co., 32 Ill. 2d 612, 617 (1965) (“lack of privity is not a
       defense in a tort action against the manufacturer”).

¶ 19       Plaintiff contends that we should follow the same course here. Plaintiff
       contends that “privity should not be a factor” in determining whether its claims for
       breach of an implied warranty of habitability may go forward against defendants
       because its claims are really tort or “tort-like” causes of action. Plaintiff explains
       that, because “an implied warranty of habitability claim is not governed by
       contract, there is no reason why the implied warranty should not be similarly



                                               -7-
       applied against a subcontractor in the same way a tort claim is applied against a
       component supplier” in product liability law. In short, plaintiff maintains that an
       owner of a newly constructed home should be allowed to proceed directly against a
       subcontractor under a claim that is “analogous to a strict liability tort claim.” We
       disagree.

¶ 20       Plaintiff’s contention that the implied warranty of habitability should be
       considered an action in tort is refuted by the economic loss rule recognized by this
       court in Moorman Manufacturing Co. v. National Tank Co., 91 Ill. 2d 69 (1982). In
       Moorman, this court held that, in an action against a product manufacturer, a
       plaintiff “cannot recover for solely economic loss under the tort theories of strict
       liability, negligence and innocent misrepresentation.” Id. at 91. Economic loss is, in
       turn, defined as “ ‘damages for inadequate value, costs of repair and replacement of
       the defective product, or consequent loss of profits—without any claim of personal
       injury or damage to other property ***’ [citation].” Id. at 82. The Moorman court
       recognized three exceptions to the economic loss rule: (1) where the plaintiff
       sustained damage, i.e., personal injury or property damage, resulting from a sudden
       or dangerous occurrence (id. at 86); (2) where the plaintiff’s damages are
       proximately caused by a defendant’s intentional, false representation, i.e., fraud
       (id. at 91); and (3) where the plaintiff’s damages are proximately caused by a
       negligent misrepresentation by a defendant in the business of supplying
       information for the guidance of others in their business transactions (id. at 89).

¶ 21      The Moorman doctrine is intended to preserve the distinction between tort and
       contract. As this court has explained:

          “In essence, the economic loss, or commercial loss, doctrine denies a remedy in
          tort to a party whose complaint is rooted in disappointed contractual or
          commercial expectations. (See Seely v. White Motor Co. (1965), 63 Cal. 2d 9,
          18 ***; see also Miller v. United States Steel Corp. (7th Cir. 1990), 902 F.2d
          573, 574 (suggesting that the term ‘commercial loss’ rather than ‘economic
          loss’ more accurately reflects the conceptual foundations of the principle).) The
          doctrine reflects the principle that there are varying degrees of quality, all
          commercially acceptable, that parties to a commercial transaction are free to
          bargain over if they choose. For example, an architect’s selection of the
          construction materials to be used in a particular structure will depend in large




                                               -8-
          part on the amount of money the owner is willing to spend on the project.
          Disputes later arising from the character of the materials used should be
          determined under principles of contract law, and should be controlled by the
          requirements imposed by the parties’ own undertaking. In that instance, the
          contract itself serves best to define the parties’ respective rights and
          obligations.” Collins v. Reynard, 154 Ill. 2d 48, 54-55 (1992) (Miller, J.,
          specially concurring, joined by Bilandic, Freeman, and Cunningham, JJ.).

       In general then, an action for economic loss requires the plaintiff to be in
       contractual privity with the defendant. Bernot v. Primus Corp., 278 Ill. App. 3d
       751, 754 (1996); East River Steamship Corp. v. Transamerica Delaval Inc., 476
       U.S. 858, 870 (1986) (the failure of a purchaser to receive the benefit of his bargain
       is “traditionally the core concern of contract law”). In addition, the economic loss
       rule has not been limited to strict liability actions against product manufacturers
       and has been frequently applied in construction cases. See, e.g., 2314 Lincoln Park
       West Condominium Ass’n v. Mann, Gin, Ebel & Frazier, Ltd., 136 Ill. 2d 302
       (1990); Morrow v. L.A. Goldschmidt Associates, Inc., 112 Ill. 2d 87
       (1986); Foxcroft Townhome Owners Ass’n v. Hoffman Rosner Corp., 96 Ill. 2d 150
       (1983); Redarowicz v. Ohlendorf, 92 Ill. 2d 171 (1982).

¶ 22       The implied warranty of habitability allows the homeowner to recover solely
       for latent defects that interfere with the home’s intended use. Park v. Sohn, 89 Ill.
       2d 453, 461 (1982) (“That warranty, implied in the contract of sale, was that the
       house, when conveyed, would be reasonably suited for its intended use.”). This is
       the definition of pure economic loss under Moorman, i.e., when the product
       disappoints the purchaser’s commercial expectations and does not conform to its
       intended use. Accordingly, under Moorman, the implied warranty of habitability
       cannot be characterized as a tort.

¶ 23       Plaintiff stresses, however, that, unlike most contractual terms that are agreed
       to by the parties, the implied warranty of habitability exists as a matter of law and,
       thus, the warranty is in reality a duty in tort imposed by the courts. Plaintiff is
       correct that the warranty is implied by the courts as a matter of public policy.
       However, an implied term in a contract is no less contractual in nature simply
       because it is implied by the courts, and the fact that a contractual term is imposed
       by law does not automatically convert any cause of action for violating that term




                                               -9-
       into a tort. See, e.g., Woodward v. Chirco Construction Co., 687 P.2d 1269, 1271
       (Ariz. 1984) (court’s statement that “the implied warranty of workmanlike
       performance and habitability ‘is imposed by law’ was not meant to transform the
       duty arising out of the contract into one based on tort principles alone”); Aronsohn
       v. Mandara, 484 A.2d 675, 679 (N.J. 1984) (“The implied covenants and terms of a
       contract are as effective components of the agreement as those expressed.”). And
       this point is underscored by the fact that, in Petersen, this court held that the
       implied warranty of habitability may be waived by the purchaser. Petersen, 76 Ill.
       2d at 43. A person may choose not to commence an action in tort, but he cannot
       waive a duty imposed by the courts. This court’s holding in Petersen that the
       implied warranty of habitability is a contractual term that may be waived is a
       conclusive indication that a cause of action for breach of the warranty must be
       based in contract, not tort.

¶ 24       In light of the foregoing, it is clear that to hold the implied warranty of
       habitability is a duty imposed in tort, as plaintiff contends, we would necessarily
       have to recognize a new exception to the Moorman doctrine and also eliminate the
       option of waiver of the warranty. Not only does this implicate principles of
       stare decisis, but it also raises significant practical problems, particularly for
       subcontractors. Subcontractors depend upon contract law and their contracts with
       the general contractor to protect and define their risks and economic expectations.
       The subcontractors’ fees and costs are set in relation to their liability exposure,
       which is controlled in turn by their contracts. To allow what is, in effect, a tort
       claim to be brought directly against subcontractors by homeowners would
       undermine and, in some instances, render pointless these contractual obligations
       and restraints. Avoiding this outcome and preserving the distinction between tort
       and contract law is the principal point of the economic loss rule. See, e.g.,
       Davencourt at Pilgrims Landing Homeowners Ass’n v. Davencourt at Pilgrims
       Landing, LC, 2009 UT 65, ¶ 21, 221 P.3d 234; Ass’n of Apartment Owners of
       Newtown Meadows v. Venture 15, Inc., 167 P.3d 225, 285 (Haw. 2007); Ward
       Farnsworth, The Economic Loss Rule, 50 Val. U. L. Rev. 545 (2016).

¶ 25       As it did in the lower courts, plaintiff points to Minton in support of allowing its
       claims for breach of an implied warranty of habitability to go forward. As noted
       previously, Minton held that where the purchaser of a newly constructed home “has
       no recourse to the builder-vendor and has sustained loss due to the faulty and latent




                                                - 10 -
       defect in their new home caused by the subcontractor, the warranty of habitability
       applies to such subcontractor.” Minton, 116 Ill. App. 3d at 855. We find Minton
       unpersuasive. Because there is no contractual privity between a homeowner and a
       subcontractor, Minton essentially recognized a tort action against subcontractors
       for economic loss where the builder-vendor is bankrupt. Minton said nothing about
       Moorman or why the economic loss rule would not apply, and it did not address
       what effect its holding would have on the contractual relationships between
       subcontractors and general contractors. Further, we can find no authority for the
       idea that a tort duty comes into and out of existence depending on whether another
       entity is bankrupt. For these reasons, Minton is overruled.

¶ 26       Plaintiff also relies on this court’s decision in Redarowicz v. Ohlendorf, 92 Ill.
       2d 171 (1982). In Redarowicz, this court held that the implied warranty of
       habitability could be extended to the second purchaser of a home and, in so holding,
       stated “[p]rivity of contract is not required.” Id. at 183. From this, plaintiff argues
       that this court has already effectively held that a claim for breach of an implied
       warranty of habitability is a tort claim that exists independently of all privity
       concerns. Plaintiff reads Redarowicz too broadly. Reading Redarowicz as plaintiff
       suggests would run counter to the economic loss rule, a rule that Redarowicz itself
       recognized and applied. Id. at 176-78. Instead, as this court recently explained in
       Fattah v. Bim, 2016 IL 119365, Redarowicz stands for a narrower principle.

¶ 27       Redarowicz allowed a subsequent purchaser to enforce the implied warranty of
       habitability because the builder-vendor in that situation “is held to nothing more
       than those obligations that arose from its original contract with the first purchaser.”
       Id. ¶ 26. Allowing subsequent purchasers to enforce the implied warranty does
       nothing more than recognize an implied assignment of a first buyer’s warranty
       rights, with the second purchaser “merely stepping into the shoes of the first.” Id.
       ¶ 34. Redarowicz did not create a tort or tort-like cause of action for economic loss
       and did not expand the class of defendants to include those who were not a party to
       the underlying sales contract.

¶ 28       Finally, plaintiff contends that denying its causes of action against defendants
       in this case would leave the owners of the condominium units without a judicial
       remedy since TR Sienna is bankrupt. We reject this argument. The fact that a
       defendant may become bankrupt is a possibility faced by every civil litigant. Upon




                                               - 11 -
       purchase of their condominium units, the homeowners in this case possessed a
       potential cause of action against TR Sienna for breach of the implied warranty of
       habitability (assuming they had not waived the warranty). The fact that TR Sienna
       subsequently became bankrupt does not mean that the homeowners in this case
       were deprived of a remedy by the courts.


¶ 29                                       Conclusion

¶ 30       The loss that can be recovered under the implied warranty of habitability is for
       disappointed commercial expectation, i.e., pure economic loss. As such, the
       implied warranty of habitability must be a creature of contract, not tort. 933 Van
       Buren Condominium Ass’n v. West Van Buren, LLC, 2016 IL App (1st) 143490,
       ¶ 58 (the “argument that the implied warranty of habitability is a tort claim has no
       merit”). Accordingly, we answer the threshold question in this case in the negative.
       The purchaser of a newly constructed home may not pursue a claim for breach of an
       implied warranty of habitability against a subcontractor where there is no
       contractual relationship. Because of our resolution of this issue, we need not
       answer the remaining questions certified by the circuit court. We reverse the
       judgments of the appellate and circuit courts and remand the cause to the circuit
       court with directions to dismiss counts III through VI and count IX of plaintiff’s
       complaint. See, e.g., Bayer AG, 235 Ill. 2d at 558 (reversing the circuit court’s
       underlying order in a Rule 308 appeal); Heidelberger v. Jewel Cos., 57 Ill. 2d 87,
       92-94 (1974) (same).


¶ 31      Certified question answered.

¶ 32      Appellate court judgment reversed.

¶ 33      Circuit court judgment reversed.

¶ 34      Cause remanded.




                                              - 12 -
¶ 35      JUSTICE KILBRIDE, dissenting:

¶ 36       I disagree with the majority’s conclusion that the implied warranty of
       habitability cannot be applied to the subcontractors in this case. In my view,
       applying the implied warranty of habitability to the circumstances here follows
       directly from our case law establishing and later extending the warranty. I would
       hold that plaintiffs may pursue a claim for breach of the warranty directly against
       the subcontractors for their defective work.

¶ 37        This court’s case law establishes that the implied warranty of habitability is
       imposed as a matter of public policy. Redarowicz v. Ohlendorf, 92 Ill. 2d 171, 183
       (1982); Petersen v. Hubschman Construction Co., 76 Ill. 2d 31, 43 (1979). This
       court first recognized the warranty in Petersen. In that case, this court stated the
       implied warranty of habitability is a “judicial innovation” used to give relief to
       purchasers of new homes who subsequently discover latent defects. Petersen, 76
       Ill. 2d at 38. The warranty is implied as a separate covenant in the contract for sale
       because of the “unusual dependent relationship” between the builder-vendor and
       the vendee. Petersen, 76 Ill. 2d at 41. This court explained that construction
       methods had changed and vendees now have little or no opportunity to inspect new
       houses prior to making, in many instances, the largest single investment of their
       lives. Vendees are usually not knowledgeable about construction practices and
       must rely to a substantial degree upon the integrity and skill of the builder-vendor.
       Based on those concerns, this court held an implied warranty of habitability is
       included in the sale of a new house by a builder-vendor. Petersen, 76 Ill. 2d at
       39-40.

¶ 38       In Redarowicz, we extended the implied warranty of habitability to subsequent
       purchasers, again recognizing that the warranty is a “judicial innovation that has
       evolved to protect purchasers of new houses upon discovery of latent defects in
       their homes.” Redarowicz, 92 Ill. 2d at 183. While the warranty has roots in the
       contract for sale, this court emphasized that it exists independently and that
       “[p]rivity of contract is not required.” Redarowicz, 92 Ill. 2d at 183. Like the initial
       purchaser, a subsequent purchaser has little opportunity to inspect construction
       methods, is usually not knowledgeable about construction practices, and must rely
       to a substantial degree upon the expertise of the builder. Redarowicz, 92 Ill. 2d at
       183. Based on those considerations, this court concluded that, “[i]f construction of




                                                - 13 -
       a new house is defective, its repair costs should be borne by the responsible
       builder-vendor who created the latent defect.” Redarowicz, 92 Ill. 2d at 183.

¶ 39       In Redarowicz, this court extended the implied warranty of habitability based
       on the “compelling public policies” recited in Petersen, despite the lack of privity
       of contract between the builder and the subsequent purchaser. Redarowicz, 92 Ill.
       2d at 183. We later explained that a second purchaser may receive the benefit of the
       implied warranty of habitability arising out of a sales contract between the first
       purchaser and the builder-vendor because “he is merely stepping into the shoes of
       the first purchaser.” Fattah v. Bim, 2016 IL 119365, ¶ 34.

¶ 40       This court has also held that the implied warranty of habitability extends to a
       subsequent purchaser seeking damages against a builder who constructed a
       significant addition to an existing residence. VonHoldt v. Barba & Barba
       Construction, Inc., 175 Ill. 2d 426, 432 (1997). The decision in VonHoldt was
       based on the same public policy concerns recited in Petersen and Redarowicz.
       VonHoldt, 175 Ill. 2d at 431-32. This court has specifically stated:

          “the same original policy considerations have consistently guided the growth of
          this doctrine. The policy, as explained in Petersen, applies the implied warranty
          of habitability to the sale of homes to protect today’s purchasers, who generally
          do not possess the ability to determine whether the houses they have purchased
          contain latent defects. [Citations.] The purchaser needs this protection because,
          in most cases, the purchaser is making the largest single investment of his or her
          life and is usually relying upon the honesty and competence of the builder, who,
          unlike the typical purchaser, is in the business of building homes.” Board of
          Directors of Bloomfield Club Recreation Ass’n v. The Hoffman Group, Inc.,
          186 Ill. 2d 419, 425 (1999).

¶ 41       Thus, it is beyond question that the implied warranty of habitability was first
       recognized and later extended by this court based on the public policy of protecting
       innocent purchasers. Redarowicz, 92 Ill. 2d at 185. The specific purpose of the
       warranty is to protect purchasers’ legitimate expectations by holding
       builder-vendors accountable. Redarowicz, 92 Ill. 2d at 185. We have extended the
       warranty to accomplish that purpose despite the lack of privity of contract between
       the parties. Redarowicz, 92 Ill. 2d at 183.




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¶ 42       In Minton v. The Richards Group of Chicago, 116 Ill. App. 3d 852, 854-55
       (1983), our appellate court held the warranty is applicable to subcontractors based
       on this court’s established rationale. The appellate court observed that, while the
       warranty is rooted in the contract for sale, it exists independently to protect
       purchasers’ reasonable expectations and privity of contract is not required to
       impose the warranty. Minton, 116 Ill. App. 3d at 854 (citing Redarowicz, 92 Ill. 2d
       171). Our appellate court, therefore, held that the implied warranty of habitability
       applies to a subcontractor when the purchaser has sustained loss due to a latent
       defect caused by the subcontractor and the purchaser cannot recover from the
       builder-vendor. Minton, 116 Ill. App. 3d at 855.

¶ 43        In my view, the policy considerations underlying the implied warranty of
       habitability support applying the warranty to subcontractors. Similar to the
       builder-vendor, subcontractors are in the business of construction and building
       homes, and they are knowledgeable about construction methods. The purchaser of
       a new home relies not only on the competence and integrity of the builder-vendor
       but also on the competence of the subcontractors. A subcontractor’s work on a new
       home is necessarily performed for the benefit of the purchaser. As with the
       builder-vendor, a purchaser should be able to expect the subcontractor’s work to
       contribute to “a house that is reasonably fit for use as a residence.” See Petersen, 76
       Ill. 2d at 40. The purchaser has a reasonable expectation that subcontractors will
       perform their work competently, and subcontractors should likewise expect to be
       held responsible for the cost to repair latent defects they have caused.

¶ 44       The policy considerations that have consistently guided this court’s decisions
       on whether to extend the implied warranty of habitability strongly favor applying
       the warranty to subcontractors. As we held in Redarowicz, “[i]f construction of a
       new house is defective, its repair costs should be borne by the responsible
       builder-vendor who created the latent defect.” Redarowicz, 92 Ill. 2d at 183. That
       statement may be applied equally to a subcontractor who created the latent defect.
       In those circumstances, the costs of repair should be borne by the responsible
       subcontractor, not by the innocent purchaser. See Redarowicz, 92 Ill. 2d at 183.

¶ 45      In sum, the policy considerations relied upon by this court in first recognizing
       and later extending the implied warranty of habitability apply with equal force here.
       A new home purchaser is necessarily dependent on those constructing the home,




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including both the builder-vendor and the subcontractors hired by the
builder-vendor. Petersen, 76 Ill. 2d at 39-41. This court has extended the implied
warranty based on the policy considerations underlying the warranty without
regard to privity of contract. Based on those policy considerations, the implied
warranty of habitability should also be extended to apply directly to subcontractors.
Plaintiffs should be able to pursue a claim for breach of the warranty directly
against the subcontractors for their own defective work, regardless of whether the
builder-vendor is insolvent or whether any other recourse is available. I would
affirm the appellate court’s decision answering the certified questions in the
negative. Accordingly, I respectfully dissent.




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