concurring and dissenting.
The record contains persuasive evidence that when Aetna’s accounts processor, Pame-lia Pride, informed the Facility that Tra-Jax’s premium for the 1989-90 policy year was uncollectible, she was not aware that lawyers and auditors retained by Aetna were aggressively pursuing that very premium on Aetna’s behalf. Nonetheless, weighing all the evidence, I believe the Board’s determination that Aetna is not entitled to its servicing fee for the 1989-90 policy year is supported by substantial evidence. Accordingly, I concur in that portion of the majority’s decision.
As to the 1988-89 policy year, however, I can find no evidence whatsoever — much less substantial evidence — to support the Board’s determination. Accordingly, I respectfully dissent from the portion of the majority’s decision dealing with that policy year.
The majority concludes that Aetna waived its right to a servicing fee (1) by designating the Tra-Jax account as uncollectible, and (2) by allowing the Facility to pay outside legal and audit fees. The first basis is insupportable for several reasons. All correspondence from Aetna to the Facility purporting to return a Tra-Jax account as uncollectible specifically referenced the 1989-90 policy year. In addition, all such correspondence specifically referenced the sum of $466,634, the precise amount determined to be due from Tra-Jax for the 1989-90 policy year. Finally, Aetna had no motivation whatsoever to become the lead plaintiff in the lawsuit against Tra-Jax, thereby incurring substantial litigation expenses, unless it stood to collect at least some of its servicing fees on the unpaid premiums. The series of letters cited by the majority are silent as to any premium due for the 1988-89 policy year. Under the rules of the procedural handbook, Aetna was to demand payment of any additional premium due before returning the account to the Facility. Nothing in the record suggests when the premium for the 1988-89 policy year became due, or if demand for its payment was made to Tra-Jax. Instead of providing support for the Board’s determination, therefore, the letters actually support Aetna’s position that the Facility did not meet its burden of proving that Aetna waived its servicing fee by returning Tra-Jax’s 1988-89 account as uncollectible.
*937The second basis cited by the majority— that Aetna waived its right to a servicing fee by allowing the Facility to pay outside legal and audit fees — is equally insupportable. The record reveals that the Facility advised Aetna by letter that the Facility was “eager to assist Aetna in any way in its investigation of Tra-Jax, Inc. As a part of supporting Aetna in this effort, the [Facility] would be happy to share in the expense of this investigation.” When Aetna sought clarification of the expense-sharing agreement being offered by the Facility, the Facility’s representative responded as follows:
It was my understanding when you originally telephoned me that you wanted the [Facility] to pick up the additional expense of hiring an attorney and a professional premium audit firm to assist in the investigation of this account. I do not recall any suggestion that the [Facility] would reimburse Aetna for all of your expenses on this matter.
... Aetna should be expected to at least carry the burden of paying for your own internal expense since in my opinion this would be considered an ordinary expense under your servicing carrier contract.
Ultimately, Aetna did bear its own internal expenses, while the Facility paid the legal and audit fees of outside firms.
Waiver is an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right. Sun Exploration & Prod. Co. v. Benton, 728 S.W.2d 35, 37 (Tex.1987). Allowing the Facility to pay for outside legal and audit expenses does not, in my opinion, raise an inference that Aetna intended to waive its standard fee. Indeed, the Facility’s letter quoted above seems to concede that bearing its own internal expenses was all Aetna was obligated to do under its servicing carrier contract. Beyond that, the issue of who would pay for outside expenses was simply a matter to be negotiated between the parties. It is critical to an appreciation of the parties’ actions to understand that this was not the run-of-the-mill suit to collect premiums contemplated by the servicing carrier agreement. Rather, it was a highly unusual case of fraud, and the servicing carrier agreement did not address who would pay investigation and litigation expenses in such cases. Thus, there was no showing that the fee-sharing arrangement was inconsistent with the servicing carrier agreement. Nor does the evidence show that Aetna intended to relinquish its right to a servicing carrier fee or that allowing the Facility to pay for outside legal and audit expenses was inconsistent with Aetna’s right to that fee. In my opinion, the record does not contain substantial evidence to support the Board’s finding of waiver as to the 1988-89 policy year. I would sustain Aetna’s first four points of error and reverse the portion of the trial court’s judgment affirming the Board’s order as to the 1988-89 policy year.