holding that, where ERISA’s preemptive effect results in change of applicable law, as opposed to denial of state court jurisdiction, preemption is affirmative defense that is waived if not pled in defendant’s answer
How later courts described this case
- holding that, where ERISA’s preemptive effect results in change of applicable law, as opposed to denial of state court jurisdiction, preemption is affirmative defense that is waived if not pled in defendant’s answer
- holding that, when ERISA's preemptive effect results in change of applicable law, rather than choice of forum, preemption is an affirmative defense that must be set forth in defendant's answer or it is waived
- holding that ERISA preemption is an affirmative defense “where ERISA’s preemptive effect would result only in a change of the applicable law” and would not subject the claim to exclusive federal jurisdiction
- noting that a preemption provision which affects the choice of forum is a non-waivable jurisdictional issue while a preemption provision which affects only the choice of law is an affirmative defense that may be waived
Written by the judges who cited it.
The opinion
DOGGETT, Justice,
concurring.
The concurring opinion of January 30, 1991 is withdrawn and the following is substituted.
I reluctantly concur based upon the analysis provided in my concurrence in the companion case of Cathey v. Metropolitan Life Ins. Co., 805 S.W.2d 387 . The court notes that “for state-law claims that do not fall within the scope of one of these three categories, an assertion of ERISA preemption is, if successful, jurisdictional and may therefore be raised for the first time on appeal.” Id. at 547. The harsh effect of this conclusion is that an insurer may now defeat a claim by asserting an ERISA defense for the first time on appeal after a Texas judge and jury have found it guilty of engaging in false, misleading or deceptive acts or breaching its duty of good faith and fair dealing. What was designed to protect workers has now become a vehicle for insurers to evade that protection.
Furthermore, I believe that in exercising its discretion on remand the trial court should consider our uniform policy permitting the recovery of prejudgment interest. See, e.g., Rio Grande Land & Cattle Co. v. Light, 758 S.W.2d 747, 748 (Tex.1988) (per curiam) (awarding prejudgment interest discourages delay and encourages compromise); Perry Roofing Co. v. Olcott, 744 S.W.2d 929, 930 (Tex.1988); Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549 (Tex.1985).
MAUZY and GAMMAGE, JJ., join in this concurring opinion.