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The Ninth Circuit Court of Appeals held that an insurer's silence in response to a conditional demand for arbitration did not constitute waiver.
In In re Lapekas, No. 04-56795, 2007 WL 81685 (9th Cir. Jan. 10, 2007), Lapekas argued that her insurer, United Services Automobile Association (USAA), impliedly waived its right to arbitration.
When Lapekas first demanded arbitration, she was not prepared to proceed with arbitration because she did not know the full extent of her injuries. The fact that USAA did not respond to her demand did not "constitute clear and convincing evidence of knowing waiver" because Lapekas' arbitration demand was only conditional. Accordingly, the Court found that USAA had not impliedly waived its right to arbitrate the dispute.
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