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Horne v. Ebert6/24/2003
ved that contractual right, by not insisting on such insurance before requiring Parker to begin work.
Waiver is the intentional relinquishment of a known right. Acetylene Gas Co. v. Oliver , 939 S.W.2d 404, 409 (Mo. App. 1996). While a party's conduct can result in waiver of a contractual right, "the conduct 'must be so manifestly consistent with and indicative of an intention to renounce a particular right or benefit that no other reasonable explanation of conduct is possible.'" Id. (quoting Waterwiese v. KBA Constr. Managers, Inc. , 820 S.W.2d 579, 585 (Mo.App.1991)).
Accu claims that, for the three years leading up to the accident, it submitted to Parker copies of the insurance policies it had obtained, as required under the indemnification agreement. None of those policies named Parker as an additional insured. Accu contends that, by Parker's failure to require Accu to have it placed on the insurance policies as an additional insured, Parker has waived its rights to insist on such insurance.
Accu's contention was supported by the affidavit of James Ebert. However, Parker submitted the affidavit of Parker's office manager, which averred that Parker retains all insurance certificates submitted by the contractor and that there was no record that certificates of insurance were ever submitted by Accu in the three years claimed by Accu.
Whether Parker received certificates of insurance from Accu that failed to name Parker as an additional insured is central to the question of whether Parker knowingly relinquished its contractual right to have Accu obtain such insurance. The trial court cannot weigh the credibility of the conflicting affidavits presented by Parker and Accu. CGI Silvercote, Inc., v. Custom Warehouse, Inc. , 77 S.W.3d 699, 701 (Mo. App. 2002). Those affidavits create a genuine dispute of material fact that precludes summary judgment for either party. See id.
Thus, we sustain Parker's second point on appeal. The judgment of the trial court is reversed with regard to its summary judgment on the breach of contract issue, and the matter is remanded for further proceedings consistent with this opinion.
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