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Utah high court rules Darden and XL Insurance waived late notice defense
The Utah Supreme Court found the employer and its workers' compensation insurer pleaded the 180-day notice bar but never asked to dismiss based on late notice.
Utah's Supreme Court ruled that Darden Restaurant Group and its workers' compensation carrier, XL Insurance America, waived a late-notice defense because they did not seek dismissal on that ground, despite raising it in their pleadings.
The case arose from an Olive Garden incident in St. George, Utah. On July 1, 2020, a restaurant manager slipped on fallen ice while carrying roughly 30 to 50 pounds of ice, injuring his right shoulder and neck.
Utah law requires injured workers to notify an employer within 180 days of the injury, or they are barred from benefits. The manager did not report a work injury until January 2021 at the earliest, which the company relied on as a late-notice issue.
Insurance Business reports the court said a limitations defense must be expressly pleaded and proven, and that pleading it without asking the administrative law judge to dismiss meant it was waived. The court also said the judge improperly stepped into an advocate role and that switching theories late was unfair to the worker.