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In American Safety and Casualty Insurance v. City of Olympia, 2007 Wash. Lexis 957 (Wash. Dec. 27, 2007), the Washington Supreme Court recently affirmed Mike M. Johnson, Inc. v. Spokane Co., 150 Wn. 2d 735, 386 (2003), which holds that waiver by conduct requires "unequivocal acts of conduct evidencing an intent to waive." In so doing, the court was critical of a lower court ruling from the Washington Court of Appeals. In American Safety and Casualty Insurance v. City of Olympia, 133 Wn. App. 649 (2006), the Washington Court of Appeals ruled that a question of fact existed whether the City of Olympia waived certain contractual provisions by expressly reserving some, but not all, of its contractual rights in written correspondence. The Court of Appeals held that the scenario created a fact question because of the City’s ambiguous intent and, therefore, that summary judgment in favor of City of Olympia was not proper. The Supreme Court, however, reversed the decision, noting that "[t]he Court of Appeals misapplied the law" as laid out by Mike M. Johnson. See Am. Safety Cas. Ins. Co. v. City of Olympia, 2007 Wash. Lexis 957 (Wash. Dec. 27, 2007). The Supreme Court noted that even though ambiguous conduct can create an issue of material fact in some cases, under the rule of Mike M. Johnson ambiguous conduct is by definition not unequivocal. As such, the Supreme Court held that the City’s conduct could not constitute waiver. The Washington Supreme Court has made clear in American Safety that the rule of Mike M. Johnson will remain a fixture in Washington case law for the foreseeable future.

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