Tort Law

Brien Roche

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Waiver.

2010 Heinrich Schepers GMBH & Co. v. Whitaker, 280 Va. 507, 702 S.E.2d 573.
Waiver is voluntary and intentional abandonment of a known legal right, advantage or privilege. In this instance, the plaintiff’s waiver of a jury trial was limited to the first trial and did not apply to the retrial.

2005 Baumann v. Capozio, 269 Va. 356, 611 S.E.2d 597.

Minor plaintiff brought personal injury suit in name of parents. After the minor turned 18, the minor settled the case for $75,000 and signed a release. When he signed the release, he was an adult. The parents did not sign the release. As part of the lawsuit, the parents had asserted a claim for their medical expenses that they paid on behalf of the minor. Parents reasserted that claim in a new lawsuit. Trial court dismissed the second lawsuit brought by the parents on the grounds that the parents had waived their claim to recover medical expenses. Waiver is the voluntary, intentional abandonment of a known legal right. An implied waiver must be proven by clear and convincing evidence. In this case, the evidence did not satisfy that criteria and therefore, the case is remanded for trial on the merits.

1964 Lumberman’s Mut. Cas. Co. v. Hodge, 205 Va. 36, 135 S.E.2d 187.

Insurance company had full knowledge of lack of notice and did not assert it, therefore waived at time of trial.

1963 Virginia Mut. Ins. Co. v. State Farm, 204 Va. 783, 133 S.E.2d 277.

Actions of insurance company after learning of mispresentations constituted waiver of any policy defense.

1962 State Farm v. Duncan, 203 Va. 440, 125 S.E.2d 154.

Uninsured motorist case. It was not duty of insurance company agents to advise plaintiff that insurance company would require service of process in any UM case. No waiver or estoppel.

1961 Creteau v. Phoenix Assur. Co., 202 Va. 641, 119 S.E.2d 336.

Uninsured motorist case. Waiver is intentional relinquishment of known right. Waiver of legal rights will not be implied except upon clear proof of intention to waive. The uninsured motorist statute required service on insurance company. Fact that company knew of trial and had observer present does not constitute waiver.

1960 Nationwide Ins. Co. v. Gentry, 202 Va. 338, 117 S.E.2d 76.

If carrier knows of breach, then there is waiver of breach unless company reserves its right to deny coverage. Such reservation of right must be communicated to insured, must fully inform him of insurer’s position and must be timely given.

1993 Wright v. Norfolk & W. Ry., 245 Va. 160, 427 S.E.2d 724.

Purpose of waiver rule as applied to procedural steps during trial is mainly to afford court opportunity to rule intelligently on issues presented.

1991 Weidman v. Babcock, 241 Va. 40, 400 S.E.2d 164.

Waiver is voluntary intentional abandonment of known legal right, advantage or privilege. Waiver of legal rights will be implied only upon clear and unmistakable proof of intention to waive such rights. In this case record failed to show that plaintiff waived his damage claims against defendant (attorney who had formerly represented him) based upon withdrawal of motion to disqualify that attorney in prior action.

1987 C. & P. Tel. v. S. & R., Inc., 234 Va. 492, 362 S.E.2d 723.

Anti-waiver clause in contract is enforced. Therefore waiver defense not recognized.

1987 Fox v. Deese, 234 Va. 412, 362 S.E.2d 699.

Waiver is voluntary, intentional abandonment of known legal right, advantage, or privilege. Plaintiff in this case relied on representations of defendant and as result entered into certain contractual commitments with other persons. Plaintiff thereafter signed contract with defendant’s employer. Signing of contract does not constitute waiver of misrepresentation claim.

1982 Link Assoc. v. Jefferson Std., 223 Va. 479, 291 S.E.2d 212.

Proof of waiver must be clear. Waiver must be made with full knowledge of rights waived.

1968 Roenke v. Virginia Farm Bur. Ins. Co., 209 Va. 128, 161 S.E.2d 704.

Uninsured motorist case. Carrier did not waive service of process. Waiver is intentional relinquishment of known right.

1963 Virginia Mut. Ins. Co. v. State Farm, 204 Va. 783, 133 S.E.2d 277.

Although misrepresentations may have been grounds for denial of insurance coverage, company’s action in learning of these facts constituted p
For more information on waiver see the pages on Wikipedia.