Zambrano v. M & R II LC, et al. (9.28.22)

A builder cannot disclaim the implied warranty of workmanship and habitability in new home construction. Arizona courts have imposed the implied warranty since 1979, and courts have thwarted prior attempts to eliminate or narrow it. So it is here. This opinion follows long-standing precedent. The supreme court agrees with the court of appeals’ prior opinion rejecting a disclaimer as against public policy, but the supreme court replaces that opinion with its own. Cf., ARCAP 23(d)(3). Why then did the court grant review? One reason may be the court of appeals invited review in its opinion: “Arizona may one day change course and allow for an implied-warrant waiver or disclaimer. But we cannot chart that new direction without further guidance from our supreme court.” The answer may come from the dissent by Justice King and Justice Bolick who would allow a disclaimer. Two additional votes would have been needed for review and perhaps, as the opinion suggests, the court was interested in whether there should be a different rule when a sophisticated consumer is involved – Zambrano was a licensed real estate broker. All of this points to an issue of state-wide importance which is sufficient reason to grant review.

Compare the supreme court opinion authored by Vice-Chief Justice Timmer with the court of appeals’ opinion. Justice Timmer’s opinion is forceful, careful, strong, and well-reasoned. Arguably this is one of her finest opinions. Justice Timmer easily casts off the dissent and the builders’ arguments. She schools the dissent who resort to an appeal to the legislature. If the builders saw an opening in the courts after 1800 Ocotillo, which allowed limitation of liability clauses in professional service contracts in commercial construction, the court has forcefully shut the door as to home construction.

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