An employer and its workers' compensation insurer pleaded a deadline defense but never argued it - and Utah's top court said they lost it.
The Supreme Court of Utah ruled on August 20, 2026 that Darden Restaurant and its carrier, XL Insurance America Inc., waived a late-notice time bar because they raised the defense on paper but never asked the judge to dismiss the claim on that ground.
For carriers, the lesson is blunt: pleading an affirmative defense preserves nothing if you never move on it.
The dispute began at a St. George Olive Garden owned by Darden. On July 1, 2020, a restaurant manager filled a container with about thirty to fifty pounds of ice, turned to carry it, and slipped on fallen ice. He hit his right shoulder on the ice machine and his head on the wall, injuring his shoulder and neck.
Utah's Workers' Compensation Act gives an injured worker a set window to notify the employer, "within . . . 180 days after the day on which the injury occurs." Miss it, and the "employee is barred" from benefits. The rule works like a statute of limitations - a defense the employer must raise and prove. The manager did not report a work injury until January 2021, at the earliest 185 days after the fall.
Darden pleaded the late-notice defense and flagged it before the hearing. But it never asked the administrative law judge to dismiss for late notice. Instead, it used the missing report to argue something else - that the injury never happened at all.
The judge dismissed both the shoulder and neck claims on her own, finding the worker had not shown a timely report. Years of appeals followed, running through the Labor Commission, an appeals board and the court of appeals.
The Supreme Court then changed the outcome. A party raising a limitations defense must "expressly plead[] and prove[]" it, the court said. Darden pleaded it and had evidence for it, but chose not to seek relief on it - so it waived the defense. By reaching the issue herself, the judge "stepped into the role of advocate rather than arbiter."
The court also held the judge's move did not preserve the bar for appeal, and that letting Darden switch theories late was unfair to a worker who had no reason to build a record on notice.
The court vacated the appeals court ruling and sent the case back.
