District, Summit County The Honorable Kara Pettit No.
E. Wrona, Jared C. Bowman, Park City, for appellee.
L. Booher, Beth E. Kennedy, Salt Lake City, for appellant.
Associate Chief Justice Lee authored the opinion of the
Court, in which Chief Justice Durrant, Justice Himonas,
Justice Pearce, and Justice Petersen joined.
Associate Chief Justice.
The Homeowners Association for the Colony at White Pine
Canyon (HOA) hired Mounteer Enterprises, Inc. to provide snow
removal services. The contract required Mounteer to maintain
a certain amount of insurance coverage. And when the HOA
discovered that Mounteer had failed to purchase the required
insurance, the HOA terminated the contract.
Mounteer filed suit, asserting that the HOA had waived its
right to terminate the contract on that ground. It reasoned
that the HOA had effectively waived the insurance requirement
by accepting Mounteer's certificates of insurance and by
making payments to Mounteer despite its noncompliance. The
HOA responded by pointing to an antiwaiver clause in the
contract-a provision stating that the HOA's failure to
notice a deficiency in Mounteer's insurance coverage
cannot be construed as a waiver of the insurance provision.
The HOA moved for summary judgment on the antiwaiver issue
and moved to exclude evidence relating to a previous contract
between the parties. The district court denied both motions
and a subsequent motion for judgment notwithstanding the
We reverse the district court's denial of the HOA's
motion for judgment notwithstanding the verdict. We hold that
a party may implicitly waive an antiwaiver provision through
conduct, but there must be clear intent to waive both the
underlying provision and the antiwaiver provision. And we
conclude that the HOA's failure to insist on performance
of the insurance provision here does not establish such clear
In 2006, the Homeowners Association for the Colony at White
Pine Canyon entered into a four-year contract with Mounteer
Enterprises, Inc. for snow removal services at its
development in Park City, Utah. The contract required
Mounteer to maintain $7 million of aggregate liability
insurance with (1) a general liability policy for $1 million
per occurrence and $5 million in the aggregate and (2) an
umbrella policy for $1 million per occurrence and $2 million
in the aggregate.
The contract provided that if Mounteer failed to purchase the
necessary insurance the HOA could immediately terminate the
contract, withhold payments until Mounteer cured the default,
or purchase the required insurance and deduct the premiums
from payments due to Mounteer. The contract also contained an
antiwaiver provision. That provision stated that
"[f]ailure of the [HOA] to demand such certificate or
other evidence of full compliance with these insurance
requirements or failure of the [HOA] to identify a deficiency
in the form that is provided shall not be construed as a
waiver of Mounteer's obligation to maintain such
During the four-year contract ending in November 2010
Mounteer submitted four insurance certificates to the HOA.
Each certificate showed only $5 million of aggregate
liability insurance coverage. And the HOA paid Mounteer for
its services despite this deficiency. In 2010 the two parties
entered into a new four-year contract with substantially
similar terms, including identical insurance requirements and
antiwaiver provision. The major difference between the
contracts was a reduction in the mileage Mounteer would be
servicing, as the HOA gave part of its snow removal business
to another company.
Three months into the 2010 contract, the HOA asked Mounteer
to surrender over three miles of the roadway Mounteer was
contracted to service. When Mounteer refused, the HOA told
Mounteer that it planned to find a way to terminate the
contract. The HOA then terminated the contract ...