implied waiver in Georgia

2021An implied waiver is one shown by a party’s decisive, unequivocal conduct reasonably inferring the intent to waive.” Kennestone Hosp. v. Hopson, 273 Ga. 145, 148 ( 538 SE2d 742 ) (2000) (citations and punctuation omitted).

2021An implied waiver is one shown by a party’s decisive, unequivocal conduct reasonably inferring the intent to waive.” Kennestone Hosp. v. Hopson, 273 Ga. 145, 148 ( 538 SE2d 742 ) (2000) (citations and punctuation omitted).

2013An “actual conflict” supporting implied preemption exists when the state law in question “prevent[s] or frustrate[s] the accomplishment of a federal objective” or “make[s] it ‘impossible’ for private parties to comply with both state and federal law.” Geier v. American Honda Motor Co., 529 U. S. 861, 873 (III) (120 SC 1913, 146 LEd2d 914 ) (2000).

2013An “actual conflict” supporting implied preemption exists when the state law in question “prevents] or frustrate[s] the accomplishment of a federal objective” or “make[s] it ‘impossible’ for private parties to comply with both state and federal law.” Geier v. American Honda Motor Co., 529 U. S. 861, 873 (III) (120 SC 1913, 146 LE2d 914) (2000).

2013Under the doctrine of implied or “conflict” preemption, “Congressional intent to impliedly preempt state law can be found when there is an ‘actual conflict’ between state and federal law.” (Citation omitted.) Parks v. Hyundai Motor America, 294 Ga. App. 112, 113 (1) ( 668 SE2d 554 ) (2008).

2013Under the doctrine of implied or “conflict” preemption, “Congressional intent to impliedly preempt state law can be found when there is an ‘actual conflict’ between state and federal law.” (Citation omitted.) Parks v. Hyundai Motor America, 294 Ga. App. 112, 113 (1) ( 668 SE2d 554 ) (2008).

2025See CSX Transp., 277 Ga. at 250 (1) (no implied waiver of municipal’s sovereign immunity as any such waiver “is expressly reserved to the legislature”); see also Ga. Dept. of Natural Resources v. Center for a Sustainable Coast, 294 Ga. 593, 603 (2) ( 755 SE2d 184 ) (2014) (“The plain language of OCGA § 12–5–245 does not provide for a specific waiver of governmental immunity nor the extent of such a waiver, and therefore, no waiver can be implied or shown.”); Currid, 285 Ga. at 188 (“Because the Community Service Act does not contain language providing for an express waiver of a county’s sovere

2025See CSX Transp., 277 Ga. at 250 (1) (no implied waiver of municipal’s sovereign immunity as any such waiver “is expressly reserved to the legislature”); see also Ga. Dept. of Natural Resources v. Center for a Sustainable Coast, 294 Ga. 593, 603 (2) ( 755 SE2d 184 ) (2014) (“The plain language of OCGA § 12–5–245 does not provide for a specific waiver of governmental immunity nor the extent of such a waiver, and therefore, no waiver can be implied or shown.”); Currid, 285 Ga. at 188 (“Because the Community Service Act does not contain language providing for an express waiver of a county’s sovere

2024The United States Supreme Court rejected the defendant’s claim that he had not waived his right to remain silent, explaining that “[w]here the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver of the right to remain silent.” Berghuis, 560 U.S. at 384 .

2024The United States Supreme Court rejected the defendant’s claim that he had not waived his right to remain silent, explaining that “[w]here the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver of the right to 23 remain silent.” Id. at 384.

2025Compare Colon v. Fulton 8 County, 294 Ga. 93, 96 (1) ( 751 SE2d 307 ) (2013) (“[I]n order for the [Georgia whistleblower statute, OCGA § 45-1-4] to have any meaning at all here, it can only be interpreted as creating a waiver of sovereign immunity.”), overruled on other grounds by Rivera v. Washington, 298 Ga. 770 , 778 n.7 ( 784 SE2d 775 ) (2016).

2025Compare Colon v. Fulton 8 County, 294 Ga. 93, 96 (1) ( 751 SE2d 307 ) (2013) (“[I]n order for the [Georgia whistleblower statute, OCGA § 45-1-4] to have any meaning at all here, it can only be interpreted as creating a waiver of sovereign immunity.”), overruled on other grounds by Rivera v. Washington, 298 Ga. 770 , 778 n.7 ( 784 SE2d 775 ) (2016).

2025Compare Colon v. Fulton 8 County, 294 Ga. 93, 96 (1) ( 751 SE2d 307 ) (2013) (“[I]n order for the [Georgia whistleblower statute, OCGA § 45-1-4] to have any meaning at all here, it can only be interpreted as creating a waiver of sovereign immunity.”), overruled on other grounds by Rivera v. Washington, 298 Ga. 770 , 778 n.7 ( 784 SE2d 775 ) (2016).

2025Compare Colon v. Fulton 8 County, 294 Ga. 93, 96 (1) ( 751 SE2d 307 ) (2013) (“[I]n order for the [Georgia whistleblower statute, OCGA § 45-1-4] to have any meaning at all here, it can only be interpreted as creating a waiver of sovereign immunity.”), overruled on other grounds by Rivera v. Washington, 298 Ga. 770 , 778 n.7 ( 784 SE2d 775 ) (2016).

2025See CSX Transp., 277 Ga. at 250 (1) (no implied waiver of municipal’s sovereign immunity as any such waiver “is expressly reserved to the legislature”); see also Ga. Dept. of Natural Resources v. Center for a Sustainable Coast, 294 Ga. 593, 603 (2) ( 755 SE2d 184 ) (2014) (“The plain language of OCGA § 12–5–245 does not provide for a specific waiver of governmental immunity nor the extent of such a waiver, and therefore, no waiver can be implied or shown.”); Currid, 285 Ga. at 188 (“Because the Community Service Act does not contain language providing for an express waiver of a county’s sovere

2025See CSX Transp., 277 Ga. at 250 (1) (no implied waiver of municipal’s sovereign immunity as any such waiver “is expressly reserved to the legislature”); see also Ga. Dept. of Natural Resources v. Center for a Sustainable Coast, 294 Ga. 593, 603 (2) ( 755 SE2d 184 ) (2014) (“The plain language of OCGA § 12–5–245 does not provide for a specific waiver of governmental immunity nor the extent of such a waiver, and therefore, no waiver can be implied or shown.”); Currid, 285 Ga. at 188 (“Because the Community Service Act does not contain language providing for an express waiver of a county’s sovere

2025See CSX Transp., 277 Ga. at 250 (1) (no implied waiver of municipal’s sovereign immunity as any such waiver “is expressly reserved to the legislature”); see also Ga. Dept. of Natural Resources v. Center for a Sustainable Coast, 294 Ga. 593, 603 (2) ( 755 SE2d 184 ) (2014) (“The plain language of OCGA § 12–5–245 does not provide for a specific waiver of governmental immunity nor the extent of such a waiver, and therefore, no waiver can be implied or shown.”); Currid, 285 Ga. at 188 (“Because the Community Service Act does not contain language providing for an express waiver of a county’s sovere

2025See CSX Transp., 277 Ga. at 250 (1) (no implied waiver of municipal’s sovereign immunity as any such waiver “is expressly reserved to the legislature”); see also Ga. Dept. of Natural Resources v. Center for a Sustainable Coast, 294 Ga. 593, 603 (2) ( 755 SE2d 184 ) (2014) (“The plain language of OCGA § 12–5–245 does not provide for a specific waiver of governmental immunity nor the extent of such a waiver, and therefore, no waiver can be implied or shown.”); Currid, 285 Ga. at 188 (“Because the Community Service Act does not contain language providing for an express waiver of a county’s sovere

2020However, the Court of Appeals expressed doubt that the implied waiver extends to other attorneys who represented the client in the same underlying matter, stating that this Court has “indicated” that implied waivers of the attorney-client privilege should be narrowly drawn, citing Waldrip v. Head, 272 Ga. 572, 578-579 ( 532 SE2d 380 ) (2000) (holding that habeas petitioner who asserts claim of ineffective assistance of counsel waives attorney-client privilege and work product protection only to extent necessary for attorney to defend against specific charges of misconduct), overruled on other

2020However, the Court of Appeals expressed doubt that the implied waiver extends to other attorneys who represented the client in the same underlying matter, stating that this Court has “indicated” that implied waivers of the attorney-client privilege should be narrowly drawn, citing Waldrip v. Head, 272 Ga. 572, 578-579 ( 532 SE2d 380 ) (2000) (holding that habeas petitioner who asserts claim of ineffective assistance of counsel waives attorney-client privilege and work product protection only to extent necessary for attorney to defend against specific charges of misconduct), overruled on other

2020To succeed on a claim of legal malpractice, the plaintiff-client must prove three elements: “(1) employment of the defendant attorney, (2) failure of the attorney to exercise ordinary care, skill and diligence, and (3) that such negligence was the proximate cause of 13 damage to the plaintiff.” Allen v. Lefkoff, Duncan, Grimes & Dermer, P.C., 265 Ga. 374, 375 ( 453 SE2d 719 ) (1995) (citation and punctuation omitted).

2020To succeed on a claim of legal malpractice, the plaintiff-client must prove three elements: “(1) employment of the defendant attorney, (2) failure of the attorney to exercise ordinary care, skill and diligence, and (3) that such negligence was the proximate cause of 13 damage to the plaintiff.” Allen v. Lefkoff, Duncan, Grimes & Dermer, P.C., 265 Ga. 374, 375 ( 453 SE2d 719 ) (1995) (citation and punctuation omitted).

2019Co. v. Triad Drywall, LLC, 321 Ga. App. 451, 453-54 (1) ( 739 SE2d 493 ) (2013) (“[A] party to a contract may waive a contractual right, and . . . any such waiver may be accomplished expressly or implicitly through the party’s conduct.”). 12 his election between two inconsistent rights.”12 Specifically, acting on the theory that the contract is still in force, “as by continuing performance, demanding or urging further performance, or permitting the other party to perform and accepting or retaining benefits under the contract, may constitute waiver of a breach.”13 Nevertheless, all of the atten

2019Co. v. Triad Drywall, LLC, 321 Ga. App. 451, 453-54 (1) ( 739 SE2d 493 ) (2013) (“[A] party to a contract may waive a contractual right, and . . . any such waiver may be accomplished expressly or implicitly through the party’s conduct.”). 12 his election between two inconsistent rights.”12 Specifically, acting on the theory that the contract is still in force, “as by continuing performance, demanding or urging further performance, or permitting the other party to perform and accepting or retaining benefits under the contract, may constitute waiver of a breach.”13 Nevertheless, all of the atten

2019Co. v. Triad Drywall, LLC, 321 Ga. App. 451, 453-54 (1) ( 739 SE2d 493 ) (2013) (“[A] party to a contract may waive a contractual right, and . . . any such waiver may be accomplished expressly or implicitly through the party’s conduct.”). 12 his election between two inconsistent rights.”12 Specifically, acting on the theory that the contract is still in force, “as by continuing performance, demanding or urging further performance, or permitting the other party to perform and accepting or retaining benefits under the contract, may constitute waiver of a breach.”13 Nevertheless, all of the atten

2019Co. v. Triad Drywall, LLC, 321 Ga. App. 451, 453-54 (1) ( 739 SE2d 493 ) (2013) (“[A] party to a contract may waive a contractual right, and . . . any such waiver may be accomplished expressly or implicitly through the party’s conduct.”). 12 his election between two inconsistent rights.”12 Specifically, acting on the theory that the contract is still in force, “as by continuing performance, demanding or urging further performance, or permitting the other party to perform and accepting or retaining benefits under the contract, may constitute waiver of a breach.”13 Nevertheless, all of the atten

2019Co. v. Triad Drywall, LLC, 321 Ga. App. 451, 453-54 (1) ( 739 SE2d 493 ) (2013) (“[A] party to a contract may waive a contractual right, and . . . any such waiver may be accomplished expressly or implicitly through the party’s conduct.”). 12 his election between two inconsistent rights.”12 Specifically, acting on the theory that the contract is still in force, “as by continuing performance, demanding or urging further performance, or permitting the other party to perform and accepting or retaining benefits under the contract, may constitute waiver of a breach.”13 Nevertheless, all of the atten

2019Co. v. Triad Drywall, LLC, 321 Ga. App. 451, 453-54 (1) ( 739 SE2d 493 ) (2013) (“[A] party to a contract may waive a contractual right, and . . . any such waiver may be accomplished expressly or implicitly through the party’s conduct.”). 12 his election between two inconsistent rights.”12 Specifically, acting on the theory that the contract is still in force, “as by continuing performance, demanding or urging further performance, or permitting the other party to perform and accepting or retaining benefits under the contract, may constitute waiver of a breach.”13 Nevertheless, all of the atten

2017Moreover, as we found in our prior decision on this issue, even assuming that the trial court was correct in finding an implied waiver under the Code sections upon which it relied, "the Act fails to state the extent of any [such] waiver[.]" State of Ga. , 332 Ga. App. at 200 (1), 770 S.E.2d 43 (emphasis supplied). 7 Because the plain language of the Act does not provide for a specific waiver of governmental immunity nor the extent of such a waiver, and no waiver can be implied, we conclude "that the General Assembly did not intend to waive sovereign immunity." Ga. Dept. of Natural Resources v.

2017Moreover, as we found in our prior decision on this issue, even assuming that the trial court was correct in finding an implied waiver under the Code sections upon which it relied, "the Act fails to state the extent of any [such] waiver[.]" State of Ga. , 332 Ga. App. at 200 (1), 770 S.E.2d 43 (emphasis supplied). 7 Because the plain language of the Act does not provide for a specific waiver of governmental immunity nor the extent of such a waiver, and no waiver can be implied, we conclude "that the General Assembly did not intend to waive sovereign immunity." Ga. Dept. of Natural Resources v.

2016Pretermitting whether an implied waiver of service could ever trump an express waiver of service, under the circumstances of this case and in light of Georgia’s policy favoring decisions on the merits of cases over default judgments, see Pleats, Inc. v. OMSA, Inc., 211 Ga. App. 643, 644 (1) ( 440 SE2d 214 ) (1993), we view the express waiver of service rather than the implied waiver of service to have triggered the 30-day answer period, making the defendants’ answer timely under OCGA § 9- 11-4 (h). 3.

2016Pretermitting whether an implied waiver of service could ever trump an express waiver of service, under the circumstances of this case and in light of Georgia’s policy favoring decisions on the merits of cases over default judgments, see Pleats, Inc. v. OMSA, Inc., 211 Ga. App. 643, 644 (1) ( 440 SE2d 214 ) (1993), we view the express waiver of service rather than the implied waiver of service to have triggered the 30-day answer period, making the defendants’ answer timely under OCGA § 9- 11-4 (h). 3.

2011An implied waiver is one shown by a party’s decisive, unequivocal conduct reasonably inferring the intent to waive.” (punctuation and footnote omitted)). 11 See Griggs v. State, 241 Ga. 317, 318 (3) ( 245 SE2d 269 ) (1978) (defendant who introduced testimony by his psychiatrist to bolster defense that he was mentally disturbed at *746 the time of the crime waived any objection to the State cross-examining the witness and calling in rebuttal a second psychologist who also evaluated defendant); Fields v. State, 221 Ga. 307, 309 (2) ( 144 SE2d 339 ) (1965) (“To call a physician to the stand, and

2011An implied waiver is one shown by a party’s decisive, unequivocal conduct reasonably inferring the intent to waive.” (punctuation and footnote omitted)). 11 See Griggs v. State, 241 Ga. 317, 318 (3) ( 245 SE2d 269 ) (1978) (defendant who introduced testimony by his psychiatrist to bolster defense that he was mentally disturbed at *746 the time of the crime waived any objection to the State cross-examining the witness and calling in rebuttal a second psychologist who also evaluated defendant); Fields v. State, 221 Ga. 307, 309 (2) ( 144 SE2d 339 ) (1965) (“To call a physician to the stand, and

2011Cf. Alston & Bird LLP v. Mellon Ventures II, L.P., 307 Ga. App. 640, 645 (4) ( 706 SE2d 652 ) (2011) (holding that plaintiffs did not waive the attorney-client privilege by inadvertently producing privileged documents during discovery). 13 See Kennestone Hosp., Inc., 273 Ga. at 149 .

2011Cf. Alston & Bird LLP v. Mellon Ventures II, L.P., 307 Ga. App. 640, 645 (4) ( 706 SE2d 652 ) (2011) (holding that plaintiffs did not waive the attorney-client privilege by inadvertently producing privileged documents during discovery). 13 See Kennestone Hosp., Inc., 273 Ga. at 149 .

2011An implied waiver is one shown by a party’s decisive, unequivocal conduct reasonably inferring the intent to waive.” (punctuation and footnote omitted)). 11 See Griggs v. State, 241 Ga. 317, 318 (3) ( 245 SE2d 269 ) (1978) (defendant who introduced testimony by his psychiatrist to bolster defense that he was mentally disturbed at *746 the time of the crime waived any objection to the State cross-examining the witness and calling in rebuttal a second psychologist who also evaluated defendant); Fields v. State, 221 Ga. 307, 309 (2) ( 144 SE2d 339 ) (1965) (“To call a physician to the stand, and

2011An implied waiver is one shown by a party’s decisive, unequivocal conduct reasonably inferring the intent to waive.” (punctuation and footnote omitted)). 11 See Griggs v. State, 241 Ga. 317, 318 (3) ( 245 SE2d 269 ) (1978) (defendant who introduced testimony by his psychiatrist to bolster defense that he was mentally disturbed at *746 the time of the crime waived any objection to the State cross-examining the witness and calling in rebuttal a second psychologist who also evaluated defendant); Fields v. State, 221 Ga. 307, 309 (2) ( 144 SE2d 339 ) (1965) (“To call a physician to the stand, and

2011An implied waiver is one shown by a party’s decisive, unequivocal conduct reasonably inferring the intent to waive.” (punctuation and footnote omitted)). 11 See Griggs v. State, 241 Ga. 317, 318 (3) ( 245 SE2d 269 ) (1978) (defendant who introduced testimony by his psychiatrist to bolster defense that he was mentally disturbed at *746 the time of the crime waived any objection to the State cross-examining the witness and calling in rebuttal a second psychologist who also evaluated defendant); Fields v. State, 221 Ga. 307, 309 (2) ( 144 SE2d 339 ) (1965) (“To call a physician to the stand, and

2011An implied waiver is one shown by a party’s decisive, unequivocal conduct reasonably inferring the intent to waive.” (punctuation and footnote omitted)). 11 See Griggs v. State, 241 Ga. 317, 318 (3) ( 245 SE2d 269 ) (1978) (defendant who introduced testimony by his psychiatrist to bolster defense that he was mentally disturbed at *746 the time of the crime waived any objection to the State cross-examining the witness and calling in rebuttal a second psychologist who also evaluated defendant); Fields v. State, 221 Ga. 307, 309 (2) ( 144 SE2d 339 ) (1965) (“To call a physician to the stand, and

2003See generally Bishop v. State, 241 Ga. App. 517, 521-522 (1) (526 *791 SE2d 917) (1999) (rejection of an implied waiver of privacy rights granted by statute).