law-waiver | arbitration clause | right to arbitrate
WAIVER DEFINED
Waiver is "an intentional relinquishment of a known right or intentional conduct
inconsistent with claiming that right." Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex.
2003) (per curiam).
Waiver is the intentional relinquishment of a right actually known, or intentional conduct inconsistent
with claiming that right. See In re Gen. Elec. Capital Corp., 203 S.W.3d 314, 316 (Tex. 2006);
Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003); Bocanegra v. Aetna Life Ins. Co., 605 S.W.
2d 848, 851 (Tex. 1980).
The elements of waiver include (1) an existing right, benefit, or advantage held by a party; (2) the
party’s actual knowledge of its existence; and (3) the party’s actual intent to relinquish the right, or
intentional conduct inconsistent with the right. See Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d
640, 643 (Tex. 1996).
Source: Ulico Casualty Co. v. Allied Pilots Association, No. 06-0247 (Tex. Aug. 29, 2008)(Johnson)
(insurance coverage, estoppel)
A party establishes waiver by demonstrating (1) the express renunciation of a known right or (2) silence or
inaction for so long as to show the intent to yield a known right. See Motor Vehicle Bd. v. El Paso Indep. Auto
Dealers, 1 S.W.3d 108, 111 (Tex. 1999). Waiver can also result from acts that induce the other party to
believe that the party will not insist on exact performance within the contractual time limits. See Kennedy Ship
& Repair, LP v. Pham, 210 S.W.3d 11, 20 (Tex. App.-Houston [14th Dist.] 2006, no pet.); see also KMI
Continental Offshore Prod. Co. v. ACF Petrol. Co., 746 S.W.2d 238, 243 (Tex. App.-Houston [1st Dist.] 1987,
writ denied) ("[A] waiver can occur if a party knowingly possessing the right acts in such a manner that the
party misleads the opposing party into believing that a waiver has occurred."); Alfred, Meroney & Co. v.
Rowe, 619 S.W.2d 210, 213 (Tex. App.-Amarillo 1981, writ ref'd n.r.e.).
“[A] party waives an arbitration clause by substantially invoking the judicial process to the other party’s
detriment or prejudice.” Perry Homes v. Cull, ___ S.W.3d ___, ___ (Tex. 2007). Waiver is a legal question for
the court based on the totality of the circumstances, and asks whether a party has substantially invoked the
judicial process to an opponent’s detriment, the latter term meaning inherent unfairness caused by “a party’s
attempt to have it both ways by switching between litigation and arbitration to its own advantage.” Id. at __.
SOURCE: In Re Fleetwood Homes of Texas, LP, 257 S.W.3d 692 (Tex. 2008) (orig. proc.)(arbitration clause
enforced, no waiver)
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