concurring:
I concur with the decision of the majority to reverse the summary judgment granted below, but I agree with Chief Judge Combs, whose dissent in the Court of Appeals decision in this case I find compelling. Judge Combs stated:
I can see absolutely no rational basis for our reluctance to apply the Craiuley exception to the doctrine of caveat emptor to developer-sellers. Crawley crafted the exception to protect unwary buyers of newly constructed houses from faulty construction and to extend to them warranties that houses would be constructed in workmanlike fashion.
In this case, Hutson as developer-seller employed Partin to construct a house for sale. She signed the Warranty of Completion of Construction in such a manner as to indicate her participation, association, and identity with Partin as builder: “Donna Hutson DBA Scott *796Partin Builders.” The more reasonable and just result would be for us to extend the Crawley exception to developer-sellers rather then restricting its applicability solely to builder-sellers. The Georgia rule (Wash. Road Developers v. Weeks, 249 Ga.App. 582, 549 S.E.2d 416 (2001)) is the better approach to this issue, and I would urge that Kentucky follow the enlightened example of many of our sister states to hold developer-sellers liable for breach of warranties — at the very least, at the summary judgment stage of litigation.
The purchase of a newly-built home is, for almost every Kentuckian, the most significant financial decision they will make, and it is the fulfillment of a significant part of the American dream. For the past forty years, since the decision of our predecessor Court in Crawley v. Terhune, 437 S.W.2d 743 (Ky.1969), we have consistently held that the doctrine of caveat emptor does not protect the builder of a new residence from damages suffered as a result of defective construction by the purchaser of the new residence. The developer of a residential subdivision, who has contracted for and has overseen the construction of the dwellings located thereon, and profited from the sale of those residences, should not be insulated from liability. In many instances, the developer chose the builder and controlled the quality of construction. All too often, shoddy construction in a new residence is impossible to discover because it is concealed within the walls of the dwelling and there is no prior occupant to have discovered the defects. There is no reason to believe that Appellee has not acted in the utmost good faith, and in fact by signing the warranty, she exposed herself to potential liability other developers would have avoided. But, it is all too easy for a developer to “contract” with barely-solvent builders, take a profit from the sale of the residence, and leave the homeowner saddled with a home that is not worth the amount owed on the mortgage and a bankrupt, or near bankrupt builder from whom no damages can be recovered.
I would therefore hold that the developer-seller of property in a residential subdivision is subject to the same implied warranties as the builder.
SCOTT, J., joins.