MIAMI BUSINESS LITIGATION: DEFENSES OF EXPRESS AND IMPLIED WAIVER

Waiver is the voluntary relinquishment of a known right. Major League Baseball v. Morsani, 790 So. 2d 1071 (Fla. 2001). The concept of wavier is important in law because it applies to a wide variety of scenarios. A litigant can waive the right to a term expressed within a contract pre-suit, to bring a claim against another, a jury trial, and many more. Therefore, waiver is a powerful tool that can help or harm a litigant’s position depending the context. However, waiver can be difficult to establish because it is almost always a question of fact. Frisbie v. Carolina Cas. Ins. Co., 103 So. 3d 1011 (Fla. 5th DCA 2012) (“Generally, waiver is a question of fact for the jury”). Peter Mavrick is a Miami business litigation attorney, and represents clients in Fort Lauderdale, Boca Raton, and Palm Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Waiver comes in two forms, express and implied. In re Shambow’s Estate, 15 So. 2d 837 (Fla. 1943). Express waiver is usually easier to establish because there must be some overt expression demonstrating the relinquishment of a right. E.g., Driscoll v. O’Reilly, 486 So. 2d 693 (Fla. 4th DCA 1986) (finding that the husband expressly waived the right to modify the settlement agreement because he “agreed that any right to modify said agreement was waived.”). The normal issues in dispute concerning express wavier are whether the right was waivable, whether the waiving party knew about the right he or she was waving, and whether the expression is sufficient to constitute wavier. See, e.g., Hicks v. State, 622 So. 2d 14 (Fla. 5th DCA 1993) (holding that the right to waive a lesser criminal charge in a capital murder case is not waivable); Hall v. Warden, Lee Arrendale State Prison, 686 Fed. Appx. 671 (11th Cir. 2017) (“If her own lawyer did not know that Ms. Hall would be unable to communicate with him during Alyssa’s testimony, he was not equipped to waive her rights, expressly or otherwise.”); Watkins v. Willis, 2023 WL 4614497 (11th Cir. July 19, 2023) (upholding the trial court’s conclusion that the government did not waive sovereign immunity because only an unequivocal expression of waiver could do so).

Implied waiver is more challenging to determine because it is established through the facts and circumstances surrounding the party’s actions or inactions as the case may be. As an example, one can implicitly waive attorney client privilege by testifying about the attorney-client communication; placing an attorney-client relationship in issue, or asserting reliance on an attorney’s advice to defend against a claim. United States v. Lehtinen, 2014 WL 1318661 (S.D. Fla. Jan. 30, 2014). One waives the right to remain silent merely by talking. Berghuis v. Thompkins, 560 U.S. 370 (2010). In both cases, the litigant never states, “I waive my right to attorney client privilege” or “I waive my right to remain silent.” Nevertheless, the litigant’s actions alone are sufficient to constitute wavier.

Situations involving implicit waiver can become complex quickly because it can be more difficult to determine whether the litigant’s actions demonstrate the voluntary relinquishment of a known right. The evidence must be sufficient to demonstrate a clear case of waiver. In re Stanton, 569 B.R. 840 (Bankr. M.D. Fla. 2017) (“Although waiver may be express or implied, the acts, conduct, or circumstances giving rise to an implied waiver must make out a clear case.”). In Leonardo v. State Farm Fire & Cas. Co., 675 So. 2d 176 (Fla. 4th DCA 1996), the court remanded the case back to the trial court to make specific findings of fact as to whether the insurance company’s practice of continuing to bill and accept insurance premiums waived the insurance company’s right to void the insurance policy. There are many other cases where waiver is a close call and can be decided one way by one particular jury panel and another way by a different jury panel.

Peter Mavrick is a Miami business litigation lawyer, and represents clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.