Liristis v. American Family Mutual Insurance Co
In Liristis v. American Family Mutual Insurance Co., 204 Ariz. 140, P11, 61 P.3d 22, 25 (App. 2002) the Court exercised its discretion to address a specific argument relating to an insurance coverage issue that had not been raised to the trial court. Id. P 10.
In so doing, it observed that the waiver rule is procedural rather than jurisdictional and that our appellate court may therefore "forego application of the rule when justice requires." Id. P 11.
The court pointed to several factors that prompted it to address the merits of the new argument in the context of the specific case before it. It observed that the new argument related to a coverage issue that it was required to address and, under such circumstances, "the court has discretion to read and interpret the policy correctly and is not necessarily limited to the arguments made by the parties." Id. P 10.
Comparing the coverage question before it to a statutory interpretation issue, id. n.3, it emphasized that the new argument was dispositive of the legal issue before it and was necessary to correctly explain the law. Id. P 11. It also observed that the new argument had been briefed and argued extensively at the appellate level and therefore the opposing party could make no claim of surprise. Id.
Finally, the court acknowledged a potential difference between a party raising an entirely new issue on appeal and merely adding an additional argument to an issue otherwise fully litigated at the trial court. Id. P 9.