Under Florida law, "waiver" is the voluntary and intentional relinquishment of a known right. For example, a defendant may contend that it does not have to do something because the plaintiff gave up the right to have the defendant perform the obligation.

In order to prove the plaintiff's "waiver" of a claim, the defendant must show:

The plaintiff's right to have the defendant do something actually existed;
The plaintiff knew or should have known it had the right to have defendant do something; and
The plaintiff freely and intentionally gave up the right to have the defendant perform the obligation.

A waiver may be oral or written, express or implied, or arise from conduct or acts that lead a defendant to believe that the plaintiff gave up the right. A waiver does not exist if the plaintiff did not know all of the material facts, or if the plaintiff was misled about the material facts.

Waiver is typically raised as an affirmative defense to legal claims, but can also arise in other contexts during a lawsuit. For more information concerning the ability to raise waiver as a defense to a particular legal claim, please contact Joel Ewusiak for assistance.