dissenting.
I dissent because I would hold that Mane Airoulofski waived his claim against the Municipality of Anchorage (MOA).
MOA was served with Airoulofski’s complaint in the fall of 1987. On October 9,1987, MOA’s adjuster wrote Airoulofski’s attorney a letter which purported to memorialize their conversation of that date in which MOA (1) denied all liability, (2) proposed to make a joint offer of $3,000 for dismissal of MOA and the State, and (3) was granted an “unlimited extension of time to make an appearance and answer the complaint pending a possible settlement.” The letter reassured Airoulofski’s attorney that upon request, the adjuster would retain counsel and respond to the suit immediately. Airoulofski’s attorney did not respond and did not then or later dispute this memorialization.
Airoulofski thus agreed to suspend prosecution of his lawsuit against MOA pending possible settlement. He knew MOA had not retained counsel. He knew MOA understood that it would not be required to respond to his suit until he notified MOA that he would proceed with the litigation against it.
Airoulofski then pursued his lawsuit against another defendant, Super 8, without serving MOA with any pleadings or discovery responses. Six years passed before he made any further attempt to pursue MOA and before he first requested an answer from MOA. A reasonable person viewing this course of conduct would conclude that Airou-lofski had no intention of pursuing his claim against MOA. The complete failure to do anything whatsoever for six years regarding the MOA claim under these circumstances is a prima facie demonstration of waiver, because it unequivocally signalled Airoulofski’s intention to forego that claim.
In opposing MOA’s motion, Airoulofski produced no evidence of a contrary intent. Airoulofski’s attorney executed an affidavit listing two circumstances allegedly bearing on why the case was not pursued: the attorney’s health problems during some intervening years and the destruction of Airoulofski’s file by a disaffected legal secretary. These circumstances are unpersuasive. Counsel’s periodic health problems did not prevent him from representing Airoulofski in his claim against Super 8 and in unrelated legal matters in 1988, 1989, and 1990. The file’s destruction cannot explain why no effort at all was made to resuscitate the claim against MOA. The complaint naming MOA was in the court file, where counsel filed it. Counsel needed no file to make an oral or written demand on MOA for an answer, had he or Airoulofski intended to pursue that claim. Airoulofski has offered no evidence of any conduct during the six-year hiatus that might have suggested to MOA or objective observ*896ers that Airoulofski intended to litigate against MOA. Most notably, neither Airou-lofski nor his attorney asserted that between October 1987 and 1993 Airoulofski subjectively harbored any intention whatsoever to prosecute the MOA claim. Assuming that Airoulofski did have that intent, he could easily have offered affidavits so stating. I regard his failure to do so as determinative.
Assuming implied waiver is, under these circumstances, akin to equitable estoppel, Wausau Insurance Cos. v. Van Biene, 847 P.2d 584, 588-89 (Alaska 1993), I also note that MOA established that it had reasonably relied to its prejudice on the October 1987 understanding and Airoulofski’s subsequent failure to prosecute his claim against MOA for six years. The court recognizes that MOA presented evidence that it suffered prejudice. Op. at 895. Airoulofski and his attorney offered no affidavits or other evidence rebutting MOA’s assertions of reasonable reliance and prejudice.
Because I would hold that the doctrine of waiver prevents Airoulofski from prosecuting his claim against MOA, I would affirm.