Case 2:11-cv-00546-RBS - Virginia Business Litigation Lawyer Blog

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Case 2:11-cv-00546-RBS -DEM Document 63 Filed 08/14/12 Page 4 of 10 PageID# 1563II. Bernsen's ObjectionBernsen raises one objection to the R&R, contesting themagistrate judge's finding as a matter of law that ILM has notwaived its rights to terminate the Agreement based on anyalleged violation of the morality clause. For the reasons setforth below, the court sustains Bernsen's Objection.A. R&R RecommendationBernsen objects to the finding in the R&R that, as a matterof law, "ILM has not waived its rights under the contract."Bernsen's Obj. 1. Bernsen argues that a party may waive ananti-waiver provision by its conduct, and thus whether ILMwaived its right to terminate the agreement for the allegedviolations of the morality clause of the Agreement raises a juryquestion. Id. at 2-3. ILM contends in its Response that,"[w]hile Bernsen is correct that a non-waiver clause cantheoretically be waived, he has failed to put forth any evidenceto support the waiver of the non-waiver clause." ILM's Resp. 1.Section C(l) of the R&R addressed Bernsen's allegation"that ILM waived its right to terminate the Agreement forviolations of the morality clause as the company knew about hisconduct for some time prior to terminating him." R&R 9. Asboth parties agree, the Agreement contains an unambiguous antiwaiverprovision. See Bernsen's Obj. 1; ILM's Resp. 1.Examining Virginia Elec. & Power Co. v. Norfolk S. Ry. Co., 278
Case 2:11-cv-00546-RBS -DEM Document 63 Filed 08/14/12 Page 5 of 10 PageID# 1564Va. 444 (2009), the magistrate judge stated that, under Virginialaw, an anti-waiver provision "did not preclude the defendantfrom enforcing the terms of the agreement even though it had notdone so previously." R&R 10.2 Given that the Agreement in thiscase similarly has an anti-waiver provision, the magistratejudge concluded "simply because ILM knew of Bernsen's conductprior to his termination does not give rise to a waiver of itsrights under the terms of the Agreement." Id.B. Waiver of an Anti-Waiver ProvisionWaiver "is the voluntary, intentional abandonment of aknown legal right. It has two essential elements: (1) knowledge2 The court does not find Virginia Electric to be controlling onthe issue of waiver in the instant case. In Virginia Electric,the Virginia Supreme Court upheld a circuit court's rulingstriking an affirmative defense of waiver because "the elementsof judicial estoppel were established in this case." VirginiaElec. & Power Co., 278 Va. at 466. The Virginia Supreme Courtdid not address alternative grounds for striking the defense ofwaiver. Id. As the dissent highlighted, if the VirginiaSupreme Court had not found the waiver defense precluded byjudicial estoppel, the plaintiff had alleged a viableaffirmative defense, because "a party may waive a non-waiverprovision of a contract such as the one contained in thecontract in this case," including "by conduct, acts, or courseof dealing." Id. at 476-77 (Koontz, J., dissenting). Thus,absent judicial estoppel, the plaintiff in Virginia Electricwould have had the chance to prove waiver to "the trier offact." Id. In the instant case, judicial estoppel is not anissue, and thus waiver is a viable affirmative defense to bedeveloped for the trier of fact. Virginia Electric is otherwisedistinguishable on a factual basis from the instant case, as,after failing to assert a contractual right for a period oftime, defendant Norfolk Southern prospectively advised theplaintiff that it would reassert its contractual right, and thecourt only calculated damages from the time of prospectivenotice forward. Id. at 522, 533.
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