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

20140241-CA 2 2015 UT App 174

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...)
Marcroft v. Labor Commission

20140241-CA 3 2015 UT App 174

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.‛).