( Quake Construction, Inc. v. American Airlines, Inc. (1990), 141 Ill.2d 281, 565 N.E.2d 990; Harrington v. Kay (1985), 136 Ill. App.3d 561, 563-64, 483 N.E.2d 560; Swerdlow v. Mallin (1985), 131 Ill. App.3d 900, 904, 476 N.E.2d 464; Grill v. Adams (1984), 123 Ill. App.3d 913, 463 N.E.2d 896.) Waiver is an express or implied voluntary and intentional relinquishment of a known and existing right. ( Whalen v. K mart Corp. (1988), 166 Ill. App.3d 339, 519 N.E.2d 991.) Waiver is an equitable doctrine invoked to further the interests of justice whenever a party initially relinquishes a known right. ( Mollihan v. Stephany (1977), 52 Ill. App.3d 1034, 368 N.E.2d 465.)

• 5, 6 However, it is well established that the parties to a contract have the power to waive a provision placed in the contract for their benefit. ( Whalen v. K mart Corp. (1988), 166 Ill. App.3d 339, 343; Harrington v. Kay (1985), 136 Ill. App.3d 561, 563-64.) Waiver is an express or implied voluntary and intentional relinquishment of a known and existing right. ( Whalen, 166 Ill. App.3d at 343.

Parties to a contract have the power to waive provisions placed in the contract for their benefit and such a waiver may be established by conduct indicating that strict compliance with the contractual provisions will not be required. Whalen v. K-Mart Corporation, 166 Ill. App. 3d 339, 344 (1988) (citing Harrington v. Kay 136 Ill. App. 3d 561, 563-64 (1985)). This principle applies even where the contract provides that the agreement shall be "null and void" if certain conditions are not met. Botti, 103 Ill. App. 3d 1054 (citing Lempera, 79 Ill. App. 3d at 222).

CCI filed a motion to dismiss the third-party complaint under section 2-619 of the Code, and the trial court granted the motion. On appeal, IBP contends that its conduct did not waive its contract rights and that the issue of waiver creates a material question of fact. CCI claims that dismissal was proper as a matter of law because IBP's failure either to insist on insurance coverage prior to commencement of work or to stop work when the corrected certificate was not forthcoming waived its right to coverage under Whalen v. K mart Corp. (1988), 166 Ill. App.3d 339, 519 N.E.2d 991, and Geier v. Hamer Enterprises, Inc. (1992), 226 Ill. App.3d 372, 589 N.E.2d 711. Whether IBP waived its right to insurance coverage under the contract hinges upon the components of implied waiver. Waiver requires that a known right be voluntarily and intentionally relinquished. ( Lavelle v. Dominick's Finer Foods, Inc. (1992), 227 Ill. App.3d 764, 771, 592 N.E.2d 287, 292.)

Id. at 912, 8 Ill.Dec. 720, 365 N.E.2d 1106; see Zinser v. Uptown Fed. Sav. and Loan, 185 Ill. App.3d 979, 982-3, 134 Ill.Dec. 87, 542 N.E.2d 87 (1st Dist. 1989), appeal denied, 128 Ill.2d 673, 139 Ill.Dec. 524, 548 N.E.2d 1080 (1990) (following Gen. Grocer). On the other hand, in Whalen v. K-Mart Corp., 166 Ill. App.3d 339, 345-6, 116 Ill.Dec. 776, 519 N.E.2d 991 (1st Dist.), appeal denied, 121 Ill.2d 587, 122 Ill.Dec. 448, 526 N.E.2d 841 (1988), the court ruled that a "broad, general boilerplate [non-waiver clause] do[es] not negate [the plaintiff's] waiver" by conduct. Id. at 346, 116 Ill.Dec. 776, 519 N.E.2d 991.

Parties to a contract have the power to waive provisions placed in the contract for their benefit and such a waiver may be established by conduct indicating that strict compliance with the contractual provisions will not be required. Whalen v. K mart Corp., 166 Ill. App. 3d 339, 343, 519 N.E.2d 991 (1988). An implied waiver of a legal right may arise when conduct of the person against whom waiver is asserted is inconsistent with any other intention than to waive it. Whalen, 166 Ill. App. 3d at 343.

In his affidavit, Minor stated that the sole reason he paid Suttles was that Suttles' work had been accepted by the plaintiffs and they had paid him. Waiver is either an express or implied voluntary and intentional relinquishment of a known and existing right. ( Wald v. Chicago Shippers Association (1988), 175 Ill. App.3d 607, 621, 529 N.E.2d 1138, 1147; Whalen v. K mart Corp. (1988), 166 Ill. App.3d 339, 343, 519 N.E.2d 991, 994.) An implied waiver of a legal right may arise when conduct of the person against whom waiver is asserted is inconsistent with an intent to enforce that right. ( Wald, 175 Ill. App.3d at 621, 529 N.E.2d at 1147; Whalen, 166 Ill. App.3d at 343, 519 N.E.2d at 994.

"The determination as to what facts are sufficient to constitute waiver is a question of law." Whalen v. K-Mart Corp., 166 Ill.App.3d 339, 343 (1988).

Whether the facts of this case are sufficient to constitute a waiver of the contractual provision is a question of law. See Geier v. Hamer Enterprises, Inc., 226 Ill.App.3d 372, 390, 168 Ill.Dec. 311, 322, 589 N.E.2d 711, 722 (1st Dist. 1992); Whalen v. K-Mart Corp., 166 Ill.App.3d 339, 343, 116 Ill.Dec. 776, 779, 519 N.E.2d 991, 994 (1st Dist.), appeal denied, 121 Ill.2d 587, 122 Ill. Dec. 448, 526 N.E.2d 841 (1988). In order to waive a requirement of an insurance contract, the insurer must intentionally relinquish a known right. Western Casualty Surety Co. v. Brochu, 105 Ill.2d 486, 498, 86 Ill.Dec. 493, 499-500, 475 N.E.2d 872, 878-79 (1985); Florsheim v. Travelers Indem. Co., 75 Ill.App.3d 298, 304, 30 Ill.Dec. 876, 882, 393 N.E.2d 1223, 1229 (1st Dist. 1979). "A waiver may be expressed or implied, arising from acts, words, conduct, or knowledge of the insurer.

On appeal, Havoco argues that the facts proven at trial are not sufficient to constitute waiver. "The determination as to what facts are sufficient to constitute waiver is a question of law." Whalen v. K-Mart Corp., 166 Ill.App.3d 339, 116 Ill.Dec. 776, 779, 519 N.E.2d 991, 994, appeal denied, 121 Ill.2d 587, 122 Ill.Dec. 448, 526 N.E.2d 841 (1988); see also Community Convalescent Center v. First Interstate Mortgage Co., 181 Ill. App.3d 996, 130 Ill.Dec. 833, 835, 537 N.E.2d 1162, 1164 appeal denied, 127 Ill.2d 613, 136 Ill.Dec. 582, 545 N.E.2d 106 (1989). Waiver is "an express or implied voluntary and intentional relinquishment of a known and existing right."