dissenting. I disagree with the result reached by the majority in this case. I believe it is based primarily on “the understandable promptings of sympathy,” Simpson v. State Mutual Life Assurance Co., 135 Vt. 554, 560, 382 A.2d 198, 201 (1977) (Larrow, J., dissenting), which, however appealing from a purely subjective and emotional point of view is, nevertheless, bad motivation for judicial decisions, leading inevitably to bad law.
In his dissent in Simpson, a case, like this one, dealing with the construction of a contract, Justice Larrow commented, in substance, that he never realized a certain phrase in the disputed contract was “unclear or ambiguous” until the majority wrote to say that it was. Id. at 559, 382 A.2d at 201. He continued: “I would give the phrase its ‘plain, ordinary and popular sense.’ ” Id. He then went on, as quoted in the first paragraph above, to suggest that the majority had allowed itself to succumb to the promptings of sympathy.
Apart from the motive of sympathy generated by the application of the plain meaning rule to the contract between the parties, there is nothing which justifies the lower court’s denial of summary judgment, or the affirmance of that denial here. The majority has simply resorted to the same ill-advised tactic employed in Simpson: a contract provision which is carefully written, unambiguous, and clear to anyone, including a layman, who bothers to *379read it, suddenly becomes ambiguous and obscure by the simple expedient of saying it is.
It may be that the law should be changed to prohibit as unconscionable the limited warranty employed in the case before us, both as to subject matter and time, for construction-type projects of the proportions involved here. Moreover, as is common enough in small scale construction work, the builder customarily has, or certainly should have, a high degree of knowledge and expertise, whereas the person for whom the work is to be accomplished may have little or none, and must rely entirely on the skills of his contractor or builder.
However desirable this may be, any such remedy lies with the legislature, not the courts. The issue in this case, under the law of contracts as it now exists, turns entirely on the ambiguity or lack thereof of paragraph nine of the contract. I am baffled how anyone, let alone the majority of a supposedly neutral and experienced court, can, without blushing, hold that paragraph nine of the subject contract is in any manner unclear, or justifies any such statement as: “the plaintiff would have been unfairly surprised were he to be informed that, by virtue of the contract, the defendant was protected from any liability flowing from negligent design of the facility.” The only basis for the slightest surprise would be the possibility that plaintiff did not read the contract, or did not read it with any care, as, unfortunately, happens only too frequently. I suspect that may well be the case here.
But the carelessness of one party, including his failure to read the terms of his contract carefully and asking questions if necessary, is an inexcusable and injudicious basis upon which to deny the other his full rights when they are as clearly and carefully spelled out as they are here. The disputed clause in the contract between plaintiff and defendant constitutes at least a part of the conditions under which the latter was willing to execute the agreement at all. For all that appears, the limitation of liability provision may have been inserted for very legitimate reasons such as, for example, the cost of liability insurance.
Gone are the days, apparently, when prospective parties to a contract, and the attorneys who advise them, can look to the courts and precedential decisions, with the slightest degree of confidence and trust, for guidance in the preparation of binding agreements. One wonders, understandably in the light of today’s result, what has happened to those long-standing principles of *380contract law, holding, inter alia, that this Court will enforce a contract according to its terms, that the Court will not make a new or different contract for the parties, but must presume that they intended to make the contract signed by both, and to be bound by its terms. Roy’s Orthopedic, Inc. v. Lavigne, 145 Vt. 324, 326-27, 487 A.2d 173, 175 (1985). “[T]his Court on appeal, must take the applicable law as we find it, however harsh the result.” Id. at 325-26, 487 A.2d at 175.
The majority has repudiated these standards, or at least wriggles its way around them in result-oriented decisions such as the matter before us and in the earlier Simpson case, by the simple expedient of saying that the terms of the contract in question are ambiguous when, very clearly, they are not. I consider this devise to be egregiously injudicious and cynical, particularly on the part of an appellate court.
Similarly, the majority attempts to distinguish Douglass v. Skiing Standards, Inc., 142 Vt. 634, 459 A.2d 97 (1983). But when the deluge of legal patter is reduced to its colloquial bottom line, all the opinion really says is that the agreement in Douglass, which was a long one, employing terms of legal significance to no greater or less an extent than the one before us today, was not ambiguous or unclear, whereas the contrary is the case here. It is admittedly futile and repetitious to point out that the subject agreement is “ambiguous” only because the majority says it is, whereas to anyone who examines the contract here fairly, as a dispassionate neutral, it is not. In my view this is an arbitrary and serious abuse of judicial power.
In the realm of civil law, insurance companies, banks, and “big” business are favorite whipping-boys of too many courts. In this case, it is business that feels the sting of the majority’s “cat.” Simpson was a curtain raiser. From today, business is at greater risk in Vermont than it ever had reason to believe possible. It matters not how carefully or clearly contracts are prepared; the test now, which is controlled entirely by individual whim, is a sufficient hardship to evoke the purely subjective and unpredictable sympathy of the malleable majority of this Court. It is not a bright day for the judicial neutrality with which courts are expected to resolve disputes between contending parties.
We recognized in Douglass, 142 Vt. at 637, 459 A.2d at 98, that exculpatory contracts are construed strictly against the party relying on them, but they are not illegal, per se. In that case we *381affirmed the trial court’s summary judgment in favor of the defendant based on the waiver of liability provisions of the contract which we held were clear, and, while they were long, were not “subject to being questioned as deceptive or misleading to the average layman.” Id. at 636, 459 A.2d at 98. The contract before us today is no less so, notwithstanding the unconscionable ruling to the contrary by the majority. It follows that we should take the law as we find it, regardless of the results.
The contract here is neither deceptive nor misleading to any “average layman” who bothers to read it. The limitation of liability was a part of the consideration for which defendant bargained; very likely it entered into its computation of the amount to be charged the plaintiff. Whatever the reason, the limitation was not illegal; it was clearly set forth. There is no showing that plaintiff was denied ample time to read the provisions, nor is there any claim of fraud, misleading, or bad faith. The contract does not contain any obscure legalisms; there is no infamous “small print” or words that are not well within the scope of common knowledge and usage. The majority have arbitrarily “rewritten” the contract to deprive the defendant of the full consideration for which it bargained in good faith, and subjected it to a liability it could not have foreseen. It entered into a contract containing provisions that were entirely proper at the time, and were clearly expressed; the majority changed the law to make illegal, retroactively, that which was legal on the date it was consummated. This is similar to the enormity perpetrated by the majority in Payne v. Rozendaal, 147 Vt. 488, 520 A.2d 586 (1986), a decision from which I also dissented.
Paragraph nine is plainly divisible into four parts. The first part sets forth exactly what is warranted, and beyond any possible misunderstanding establishes a time limit on the warranty. The second part clearly defines the limits of defendant’s obligations under the warranty. Part three is a clear disclaimer of any and all other warranties whatsoever, except for the warranties and the obligations of defendant relating thereto for which express provision is made. This disclaimer is all embracing as to the warranties; anything more on that subject would be redundant and, in all probability, serve only to confuse the issue and perhaps render the contract truly ambiguous.
Having completely and clearly exhausted the matter of warranties in the first three parts of paragraph nine (what else could *382possibly have been written on the subject that would not have been redundant?), the fourth part concludes the paragraph with a catchall disclaimer of any other (other than what? other than the express warranty, of course) obligations or liabilities. The words “other liabilities” (that is, other than under the warranty) mean what they say, thereby excluding liabilities based on tort, contract, or otherwise. To hold it does not, or that it is ambiguous, is to despair of the ability of the average laymen in this country to read plain English, as well as the possibility of drafting a binding contract that can hope to stand against the whim of a court prepared to find an ambiguity in every certitude, and rewrite contracts after the fact in any way it wishes, provided the consequences of the contract as written and agreed to by both parties evokes sympathy for one of the parties.
Properly read, and I do mean as only a lawyer is qualified to do, the matter in paragraph nine, set forth in the contract in upper-case type, provides:
This warranty is expressly in lieu of any other warranty . . . and of any other obligations or liability .... (Emphasis added).
Clearly the second “other” is exclusive of, and has no possible relationship to, warranties. The disclaimer is clear, and though admittedly broad, plaintiff agreed to it.
The majority has virtually eliminated any certitude that could previously be found in long-standing precedential decisions in the field of contract law. In the place of desirable stability, commencing at least with the earlier majority opinion in Simpson, and more recently in Payne v. Rozendaal, the majority is making a lottery of the Court, a gambling hall, wherein the key to the prize is the possibility of a subjective emotional response on the part of the Court, motivated entirely by the prompting of sympathy. The finding of ambiguity is result oriented; there is nothing ambiguous about paragraph nine, and it should be enforced according to its plain meaning. I would reverse and enter judgment for the defendant.