Van Dyke v. White

Ott, J.

(dissenting)—I dissent for the following reasons:

(1) This is a garnishment proceeding. The judgment creditor has the burden of establishing, by a preponderance of the evidence, that the respondent is indebted to the insured. RCW 7.32.180, 7.32.270. Appellants failed to meet this burden. There was no obligation to pay or duty to perform on the part of the respondent because the performance by the insured, of his promise of co-operation, which was a condition precedent to the duty to pay, had not occurred.

(2) The majority find that the condition precedent was not performed by the insured, but hold that its performance was waived by the respondent. I do not agree. Waiver is an intentional relinquishment of a known right. Associated Indemnity Corp. v. Wachsmith, 2 Wn. (2d) 679, 99 P. (2d) 420, 127 A. L. R. 531 (1940); Eakle v. Hayes, 185 Wash. 520, 55 P. (2d) 1072 (1936); Reynolds v. Travelers Ins. Co., 176 Wash. 36, 28 P. (2d) 310 (1934). The respondent clearly manifested a contrary intention in its letter to the insured. It insisted that the condition precedent be performed. The record does not establish that the respondent intended, by its voluntary offer to defend the action, to waive performance of the condition on the part of the insured.

(3) The majority hold that the respondent’s continuing to defend the action, after it had knowledge that the insured would not co-operate, was a waiver of the condition because the insured was thereby misled, was entitled to assume that the condition had been waived, and was not subsequently notified otherwise.

I do not agree with this holding for two reasons: (1) It invokes the doctrine of estoppel. The insured is the only one who can assert that he was misled by the conduct of the respondent. The insured is not a party to this proceeding; hence, such a contention is not raised, nor can it be asserted here. (2) The appellants cannot assert the majority's suggested defense of abandonment or estoppel on behalf of the insured, unless legally authorized so to do by the insured. Such an authorization was not shown.

In my opinion, the judgment should be affirmed.