Equity [Estoppel and Waiver]: Waiver

Young v. Montana State Fund [01/08/08] 2008 MTWCC 2 Waiver is an affirmative defense and the burden of proof is on the party asserting it. In this case, it is Petitioner’s burden to prove that Respondent waived its right to rely on Otteson v. Montana State Fund, 2005 MT 198, 328 Mont. 174, 119 P.3d 1188, when Respondent paid Petitioner’s demand for PPD benefits which Petitioner alleged entitlement to pursuant to Reesor v. Montana State Fund, 2003 MTWCC 51. Since the Court concluded that the parties made a mutual mistake of law in believing Reesor controlled the situation, Petitioner has not proven that Respondent waived its right to rely on Otteson.

Swartz v. State Fund [8/28/01] 2001 MTWCC 50 Where an insurer admitted liability for an impairment award to a permanently totally disabled claimant and promised to pay it in the future, it waived any right it had to contest the statutory entitlement of the claimant to the award.