Miotke v. City of Spokane
In Miotke v. City of Spokane, 101 Wn.2d 307, 678 P.2d 803, 820 (Wash. 1984), overruled on other grounds by Blue Sky Advocates v. State, 107 Wn.2d 112, 727 P.2d 644 (Wash. 1986), the plaintiffs admitted they had not complied with the statute requiring them to file a claim with the city prior to filing their action.
The Washington supreme court affirmed the trial court's determination the city had waived this statutory defense by failing to raise it until "3 years after the litigation began . . . after the first phase of litigation had been completed, including several days of hearings . . . and the trial court had entered its first set of findings and conclusions." Id.
The supreme court noted that waiver was appropriate "in view of the substantial litigation which had occurred before the defense was raised." Id.