This blog is co-authored by Yuveshen Naidoo, candidate attorney.

In September 2025, a Georgia Court of Appeals clarified their requirements for waiver of insurance policy conditions. The case turned on whether the insurer had waived its right to enforce an ownership clause in a commercial vehicle insurance policy, following a tragic accident involving a truck not owned by the insured company but by its sole director personally. The court found no evidence that the insurer had intentionally relinquished its right to invoke the ownership clause.

Under Georgia law, waiver of a contractual right requires “an intentional relinquishment of a known right.” For a waiver to be inferred from conduct, it must be “clear and unmistakable.” The insured argued that the insurer had waived the ownership requirement by failing to mention it in correspondence and by accepting premiums after the loss. However, the court found that there was no evidence that the insurer knew the truck was personally owned by the director, nor that it intentionally relinquished its right to enforce the ownership clause. The insurer’s silence or failure to restate the condition did not amount to a waiver.

The court distinguished between waiver of post-loss conditions, such as notice provisions, which may be waived by “small circumstances,” and waiver of essential coverage conditions, which requires a much higher threshold. The ownership clause was deemed an essential provision defining the scope of coverage and thus could only be waived by conduct that was clear, unmistakable, and based on actual knowledge of the relevant facts.

The decision rejected the argument that acceptance of premiums after the loss constituted waiver, noting that in previous cases where this was found, the insurer had actual knowledge that the insured did not satisfy the condition in question. In this instance, there was no such evidence.

South African law requirements for waiver are similar. South African courts require proof of a clear intention to abandon a right, and actual knowledge of the right being waived. Waiver cannot be inferred lightly, especially where it concerns essential policy conditions that define the scope of cover. South African courts respect clear contractual terms and are unlikely to extend coverage where the language excludes it unless there is compelling evidence of waiver, estoppel, or misrepresentation.

Cypress Insurance Company v. Jesse Batten Farms LLC, et al, No. 24-13700 (11th Cir. 2025) :: Justia