(E. 2243-44). The Circuit Court Found—And Wcs Concurs—That
906 WordsApr 16, 20174 Pages
(E. 2243-44). The Circuit Court found—and WCS concurs—that this position “pushed the envelope of credibility.” (E. 2284).
To illustrate this absurdity, if we accept National Surety’s position that any negative defense to a breach of contract claim is a right or claim, National Surety would be free to assert any claim against WCS—no matter how preposterous and in want of merit—knowing that WCS has released any and all defenses—affirmative, negative, or otherwise—that WCS may have to such a claim. This Court could not afford the 2007 agreement such a construction. See Middlebrook Tech, LLC v. Moore, 157 Md. App. 40, 70 (2004) (“[I]t is a fundamental tenet of contract interpretation that a court will not read contract language to produce an…show more content…
In this case, however, the Waivers bargained for in the AIA contract are neither “rights, claims, debts, liens, demands, [nor] actions.” (E. 881) Contrary to the plaintiffs in Olney, WCS is not (in this litigation ) pursuing an affirmative “claim” whatsoever. Rather, WCS merely seeks to rely upon the express waiver that Metropolitan gave, which serves as a negative defense to National Surety’s breach of contract claim.
Additionally, National Surety relies on Allstate Ins. Co. v. Stinebaugh, 374 Md. 631, 646 (2003); and Shawnee Hosp. Auth. v. Dow Constr., Inc., 812 P.2d 1351 (Okla. 1990). Both these cases dealt with parties who attempted to invoke arbitration clauses in a prior contract, after the original contract had been modified by a subsequent settlement agreement. See generally, Id. Like in Olney, these cases are dissimilar because a right to arbitration is not immediately tendered the way a waiver is. Rather, an arbitration clause is an executory right that may be invoked in the future. As such, the executory arbitration clause may be modified via subsequent agreement, but a waiver may not because it is tendered upon when the waiver is given. Contrary to Metropolitan’s averment before the Circuit Court and National Surety’s misguided reliance on Olney, Stinebaugh, and Shawnee, a waiver is not an executory right to be exercised in the future or a right possessed by anyone at all. Rather, a waiver is a present relinquishment of a right that is tendered at