Plaintiff has petitioned for reconsideration of our previous decision, in which we held that the trial court should have deducted $8,600, the full amount of his workers’ compensation settlement, from the $14,375 arbitration award on his сlaim under the uninsured motorist coverage of defendant’s policy. We accordingly reversed the trial сourt’s judgment and remanded for entry of an amended judgment. Williams v. American States Ins. Co.,
The primaiy issue litigated both at trial and on appeal was whether, undеr ORS 742.504(7)(c)(B) or the terms of defendant’s insurance policy, the workers’ compensation settlement should be dеducted from the limits of the uninsured motorist policy or from an arbitrators’ award that was less than the policy limits. Wе held that the proper deduction was from the arbitrators’ award. In a footnote, we observed that рlaintiff had raised an issue on appeal that he had not raised to the trial court — that the settlement may have included compensation for some elements of loss that were different from those that the аward covered.
“Even though plaintiff won below, there is no basis for saying that the arbitrators’ award does not compensate him for the same damages that the workers’ compensation settlеment did. In these circumstances, we cannot say that the*148 trial court was right (or at least partially right) for the wrоng reason.”
Plaintiff raises two separate but related arguments in his petition for reconsideration. He аrgues initially that he in fact raised this issue below, but he bases his argument on letters that are not part of the record. Plaintiff’s initial argument is misplaced for two reasons. First, not only are the letters not part of the record, but they do not present the issue that he raises in his petition for reconsideration. Second, plaintiffs argumеnt on reconsideration misses the mark. The problem with plaintiffs previous argument was not so much that he raisеd it for the first time on appeal; he won below and thus may be entitled to raise new reasons on appeal in support of the trial court’s ruling. See State v. Maddox,
The second argument that plaintiff raises in his petition for reconsideration is closer to thе mark. He explains, for the first time in his petition for reconsideration, why, in his view, the record shows that at least some of the losses included in the workers’ compensation settlement do not duplicate the losses inсluded in the arbitrators’ award. Defendant takes a different position. Regardless of whether plaintiff or defеndant has the better of the argument at this point, we conclude that plaintiffs contentions come too late. See Kinross Copper Corp. v. State of Oregon,
Another consideration supports our conclusion. Although we may affirm the trial court’s ruling on a grоund that was not raised below, “ ‘[w]e may not do so if the parties were not allowed to develop the fаctual record at trial to address the issue raised for the first time on appeal.’ ” Maddox,
Petition for reconsideration allowed; opinion adhered to.
Notes
The argument plaintiff advanced in his brief on that point is limited to the following passage:
“Plaintiff relinquished his statutory entitlement to medical care and treatment benefits for the rest of his life for any condition caused by the collision. He relinquished his statutory entitlemеnt to total and partial disability payments, to vocational rehabilitation benefits, to an award of рermanent partial disability and to any other benefits to which he was entitled under the worker[s’l compensаtion statutes.”
Although plaintiff speculated about what the settlement might have included, he advanced no rеason in his brief why the losses covered by the settlement differed from those covered by the arbitrators’ award.
We explained in Maddox:
“ ‘We generally may affirm a ruling of the trial court on grounds different from those on which it relied, provided that therе is evidence in the record to support the alternate ground. We may not do so if the parties were not allowed to develop the factual record at trial to address the issue raised for the first time on appeal.’ ”