American Safety v. City of Olympia: Supreme Court Affirms and Clarifies Mike M. Johnson

In the 2003 Mike M. Johnson decision the Supreme Court held that absent waiver, failure to strictly comply with claims procedures in construction contracts bars relief and that waiver by conduct “requires unequivocal acts of conduct evidencing an intent to waive.” Mike M. Johnson, Inc. v. Spokane County, 150 Wn.2d 375, 391, 78 P.3d 161 (2003). American Safety successfully argued before the Court of Appeals that its case was distinguishable from Mike M. Johnson and sufficient to resist summary judgment because the parties engaged in continued negotiations and the City only reserved its right to demand compliance with the contractual claim provisions on three separate occasions.

The Supreme Court reversed, and emphasized that, at most, the City’s actions constituted “equivocal” evidence of waiver. “Equivocal conduct by its definition cannot be unequivocal” as required by Mike M. Johnson. Because the City on occasion expressly asserted it was not waiving its contractual defenses no juror could find the City unequivocally did the exact opposite. The Court further affirmed Mike M. Johnson and held continued settlement negotiations will not establish waiver, as such a finding would frustrate the settlement process.

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