Marcroft v. Labor Commission

2015 UT App 174

THE UTAH COURT OF APPEALS

ROBERT MARCROFT,
Petitioner,
v.
LABOR COMMISSION, UNINSURED EMPLOYERS’ FUND, AND ALWAYS
ROLLING TRUCKING, LLC,
Respondents.

Memorandum Decision
No. 20140241-CA
Filed July 16, 2015

Original Proceeding in this Court

Daniel L. Wilson and Scott Nance, Attorneys
for Petitioner
Sean D. Reyes and Brent A. Burnett, Attorneys for
Respondent Uninsured Employers’ Fund

JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGES J. FREDERIC VOROS JR. and STEPHEN L. ROTH
concurred.

ORME, Judge:

¶1 Robert Marcroft challenges the order of the Utah Labor
Commission Appeals Board, which modified an Administrative
Law Judge’s decision. Because Marcroft did not preserve his
challenge, as he candidly concedes in his reply brief, we uphold
the Board’s order without reaching the merits of Marcroft’s
claim.

¶2 In 2012, Marcroft was injured on the job when he was hit
by a car. He sought and received worker’s compensation
benefits. Before the Administrative Law Judge entered her
decision, Marcroft and Respondents entered into a stipulation
that payments from the at-fault driver’s $15,000 auto insurance
Marcroft v. Labor Commission

policy would ‚be set off as deductions against any potential
worker*’s] compensation benefits awarded in the adjudicative
hearing.‛ After the Administrative Law Judge entered her
decision, Respondents appealed to the Board. The Board
generally affirmed the decision but modified it to explicitly
allow Respondents to ‚subtract the amount *Marcroft+ recovered
from a third party for his injury . . . from the amount of
worker[’s] compensation benefits owed to him for the work
accident.‛ The Board’s order indicates that this amount was
‚stipulated to be $19,000,‛ when in fact the amount was $15,000.

¶3 Marcroft now seeks our review of the Board’s order. He
claims only one error, namely that ‚the specific amount available
for subrogation in this case should be $15,000 less costs and
attorney fees, rather than $19,000.‛ Respondents do not address
this argument but assert in their brief that ‚*b+ecause Marcroft
has failed to preserve the issues he seeks to raise on appeal,‛ the
Board’s order should be upheld. In his reply brief, Marcroft
‚concedes that the issue under appeal was not properly
preserved‛ but asks us ‚to consider applying the ‘clear error’
exception to the general rule regarding preservation of an issue
under appeal.‛

¶4 It is tempting to ignore precedent and fix the Board’s
mistake. And nothing in this decision should be taken as
foreclosing Respondents from doing the right thing. But we have
consistently ‚refused to consider arguments of plain error raised
for the first time in an appellant’s reply brief, even if the plain
error argument is in response to a dispute over preservation
raised for the first time in the appellee’s brief.‛1 Boyle v.

1. This is not as unfair as it may sound. After all, the appellant
bears the burden of establishing in its opening brief where each
issue was preserved for appeal and, if an issue was not
preserved, why it should be considered anyway, such as because
(continued…)

20140241-CA 2 2015 UT App 174
Marcroft v. Labor Commission

Christensen, 2009 UT App 241, ¶ 13, 219 P.3d 58, aff'd in part, rev'd
in part, 2011 UT 20, ¶ 1, 251 P.3d 810. Because Marcroft’s first
invocation of the plain error exception to our preservation
requirement appears in his reply brief, we will not consider it.
See, e.g., Schefski ex rel. Coleman v. Stevens, 2000 UT 98, ¶ 9, 17
P.3d 1122; State v. Wells, 2014 UT App 13, ¶ 5, 318 P.3d 1251;
State v. Mitchell, 2013 UT App 289, ¶¶ 27–28, 318 P.3d 238; Davis
v. Davis, 2011 UT App 311, ¶ 14, 263 P.3d 520. We therefore
decline to disturb the Board’s order.

(…continued)
the plain error doctrine applies. Utah R. App. P. 24(a)(5)(A), (B)
(‚The brief of the appellant shall contain . . . citation to the record
showing that the issue was preserved in the trial court; or . . . a
statement of grounds for seeking review of an issue not
preserved in the trial court.‛). An appellant proceeds at his peril
if preservation or plain error is not dealt with in his opening
brief. The same is true for a petitioner seeking judicial review of
an administrative decision, as in this case. See id. R. 18 (‚As used
in any applicable rule, the term ‘appellant’ includes a petitioner
in proceedings to review the orders of an agency, commission, or
board.‛).

20140241-CA 3 2015 UT App 174