Doctrine of Waiver Washington
In French v. Gabriel, 116 Wn.2d 584, 806 P.2d 1234 (1991) the Court recognized the viability of the common law doctrine of waiver, but concluded that under the facts of that case the defendant had not waived the defense.
Significantly, all three divisions of the Court of Appeals of this state have also recognized the common law doctrine of waiver.
Clark v. Falling, 92 Wn. App. 805, 813, 965 P.2d 644 (1998) (Division One);
Davidheiser v. Pierce County, 92 Wn. App. 146, 155, 960 P.2d 998 (1998), review denied, 137 Wn.2d 1016, 978 P.2d 1097 (1999) (Division Two);
Romjue v. Fairchild, 60 Wn. App. 278, 281, 803 P.2d 57, review denied, 116 Wn.2d 1026, 812 P.2d 102 (1991) (Division Three).
Under the doctrine, affirmative defenses such as insufficient service of process may, in certain circumstances, be considered to have been waived by a defendant as a matter of law.
The waiver can occur in two ways. It can occur if the defendant's assertion of the defense is inconsistent with the defendant's previous behavior. Romjue, 60 Wn. App. at 281.
It can also occur if the defendant's counsel has been dilatory in asserting the defense. Raymond v. Fleming, 24 Wn. App. 112, 115, 600 P.2d 614 (1979) (citing 5 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE 1344, at 526 (1969)), review denied, 93 Wn.2d 1004 (1980).
The Court believes the doctrine of waiver is sensible and consistent with the policy and spirit behind our modern day procedural rules, which exist to foster and promote "the just, speedy, and inexpensive determination of every action." CR 1.
If litigants are at liberty to act in an inconsistent fashion or employ delaying tactics, the purpose behind the procedural rules may be compromised.
We note, also, that the common law doctrine of waiver enjoys a healthy existence in courts throughout the country, with numerous federal and state courts having embraced it.
Trustees of Cent. Laborers' Welfare Fund v. Lowery, 924 F.2d 731, 732 (7th Cir. 1991) (observing that "a party may waive a defense of insufficiency of process by failing to assert it seasonably");
Santos v. State Farm Fire & Cas. Co., 902 F.2d 1092, 1096 (2d Cir. 1990);
Marcial Ucin, S.A. v. S.S. Galicia, 723 F.2d 994, 997 (1st Cir. 1983);
Kearns v. Ferrari, 752 F. Supp. 749, 752 (E.D. Mich. 1990);
Burton v. Northern Dutchess Hosp., 106 F.R.D. 477, 481 (S.D.N.Y. 1985);
Tuckman v. Aerosonic Corp., 394 A.2d 226, 233 (Del. Ch. 1978);
Joyner v. Schiess, 236 Ga. App. 316, 512 S.E.2d 62 (1999).