dissenting:
At the trial level, the only issue argued by the parties and considered by the trial judge was whether the release was ambiguous. Lack of consideration was never an issue. Yet, on appeal, the case is decided based upon lack of consideration (an issue never raised by CIPS) and the opinion fails to even mention the issue of ambiguity. For the following reasons, I believe that the refusal to apply the waiver doctrine to this case is not in accord with Illinois law and resulted in manifest prejudice to St. Paul. Parenthetically, I construe the majority’s silence on the ambiguity issue to mean that they agree with the trial judge that the release is unambiguous. With this, I am in complete accord.
The record in this case exceeds 2,500 pages and CIPS’ 165-count declaratory complaint alone exceeds 600 pages. Nowhere does CIPS ever mention lack of consideration. The only time consideration was ever mentioned below was in St. Paul’s motion for summary judgment, wherein it is alleged that the Lost Policy Receipt was supported by bargained-for consideration. This allegation was not disputed by CIPS. The majority, in reasoning that CIPS raised lack of consideration below, refer to one paragraph (out of a 2,500-page record) wherein CIPS argues that “[i]f the release is interpreted as urged by St. Paul, CIPS paid $75,000 for nothing.”
This argument, however, was made in an ambiguity issue context. CIPS was attempting to show that St. Paul’s construction was not a reasonable one and that as a result the release was ambiguous. This point is reinforced by the trial judge’s statement:
“CIPS poses an honest question: Why would it pay $75,000 for no coverage? One can only speculate. The policy had been lost. The kinds of pollution occurrences involved in this case were relatively unknown at the time. It is not my role to answer that kind of question when the language of the Receipt is clear.” (Emphasis added.)
Both parties are experienced business entities, represented by more than adequate legal counsel, and lack of consideration is not exactly a remote legal concept. I find it inconceivable for CIPS to maintain that it raised the issue below, yet agree that it never once mentioned lack of consideration in the lengthy record. The issue was simply not raised below. As such, one can only conclude that the issue was not raised by design.
It is well settled that issues not raised in the trial court are generally waived on appeal. (Western Casualty & Casualty Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 500, 475 N.E.2d 872.) The reasoning underlying this general precept is that the appellate court should not consider different theories or new questions on appeal, if proof might have been offered to refute or overcome them had they been presented below. Carter v. Dunlap (1986), 138 Ill. App. 3d 58, 60, 484 N.E.2d 1273, citing Skokie Gold Standard Liquors, Inc. v. Joseph E. Seagram, & Sons, Inc. (1983), 116 Ill. App. 3d 1043, 1052, 452 N.E.2d 804. See also Klubeck v. Division Medical X-Ray, Inc. (1982), 108 Ill. App. 3d 630, 635, 439 N.E.2d 506; McKanna v. Duo-Fast Corp. (1987), 161 Ill. App. 3d 518, 528, 515 N.E.2d 157.
While there is support for the majority position that the waiver rule is a limitation on the parties and not on the court, this exception has only been applied to issues of law. Such is not the case sub judice, where St. Paul has referred repeatedly in its brief to facts (apparently not in the record, but not disputed by CIPS) that there was a material misrepresentation on the part of CIPS’ procuring agent to the effect that St. Paul insured multiple utility companies for the price of one. Because CIPS did not argue lack of consideration below, St. Paul had no opportunity (and even more important, no reason) to make a record on this issue. As a result, failure to apply the waiver doctrine to this case did not (as the majority state) reach a just result, but rather operates to prejudice St. Paul and weaken our system of appellate jurisdiction. See Kravis v. Smith Marine, Inc. (1975), 60 Ill, 2d 141, 148, 324 N.E.2d 417.
Based upon the above, I would affirm the judgment of the trial court.