Stuart invovled the application of the legislatively created home improvement practice act (“HIPA”). The legislature also created a remedy of double damages for violations HIPA as well as attorneys fees.

The specicic quote you thatprovide as an example of judicial activism, states:

“Allowing double damages encourages reluctant consumers to become private attorneys general and fight unfair trade practices, the court found. That will deter future contractor malfeasance and promote the public good.”

However, this language is not the judiciary legislating. Rather, it is the expression of the legislatures intent for the HIPA statute. Anytime there is a statutory attorney fee provision, the legislature has enacted a policy decision for individuals to act as “private attorney generals.” It is the role of the courts to enforce that policy.

The majority did so in Stuart. To this end, The majority noted “We must give effect to statutory enactments by determining the statute’s meaning, especially through its language, which we presume expresses the intent of the legislature.” Does that sound of judicial activism?

The majority upheld the jury’s decision that a HIPA violation had occurred and awareded what was required of it by the application of state law. That is not judicial activism.

The dissent, however, was engaging in judicial activsim. In pars. 99-112, Justice Roggensack argued for the application of the economic loss doctrine. The ELD is a judicially created doctrine, meaning that it was created in the courts not the legislature. In short, the ELD prohibits tort claims arising out of contracts for products where there are only monetary damages.

Despite the fact that the contractor lied about his knowledge of building codes and his ability to build a safe structure, the dissent would have dismissed the home owners claim because of the ELD. My problem with this logic is that there is an express statute providing a cause of action, the dissent is not following the law is is overturning the law with a judicially created doctrine. THAT IS THE DEFINITION OF JUDICIAL ACTIVISM!

Deb Jordahl’s piece is equally troubling. She spins this as a trial lawyer victory. She does not mention the fact that the Home Owner’s attorney is from Von Briesen & Roper, which is the 5th biggest law firm in the state and hardly associated with the PI bar.

So shame on you all for believing the hype without reading the case.