

                United States Court of Appeals                            United States Court of Appeals
                    For the First Circuit                                For the First Circuit
                                         

No. 95-1440

                        ALVAN H. WOLF,

                     Plaintiff, Appellee,

                              v.

          RELIANCE STANDARD LIFE INSURANCE COMPANY,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

   [Hon. Charles B. Swartwood, III, U.S. Magistrate Judge]

                                         

                            Before

                    Torruella, Chief Judge,                                                      
               Stahl and Lynch, Circuit Judges.                                                          

                                         

James A.  Young with  whom  Michael J.  Burns, Christie,  Pabarue,                                                                              
Mortensen &amp; Young, P.C. and Cheri L. Crow were on brief for appellant.                                                 
William E. Bernstein  with whom Barbara S. Liftman and  Weinstein,                                                                              
Bernstein &amp; Burwick, P.C. were on brief for appellee.                                 

                                         

                      December 11, 1995
                                         

          STAHL,  Circuit  Judge.   Plaintiff-appellee  Alvan                      STAHL,  Circuit  Judge.                                            

Wolf prevailed  in  his jury-tried  contract  action  against

defendant-appellant Reliance Standard Life  Insurance Company

("Reliance") for  denial of  disability  benefits.   Reliance

appeals the trial court's ruling  that ERISA preemption is an

affirmative defense which Reliance waived by failing to plead

it timely.  We affirm.

                              I.                                          I.                                            

                          BACKGROUND                                      BACKGROUND                                                

          We begin by  reciting the facts  in the light  most

favorable to the verdict.   See Aetna Cas. Sur. Co.  v. P &amp; B                                                                         

Autobody, 43 F.3d 1546, 1552 (1st Cir. 1994).                    

          Wolf  founded  Brookfield   Factory  Outlet,   Inc.

("Brookfield"), a  now-defunct chain of shoe  stores.  During

Brookfield's  heyday, Wolf  earned  approximately $8,000  per

month as its President  and Chief Executive Officer.   In the

fall  of  1988,  he  was diagnosed  with  severe  depression,

apparently resulting from business and personal difficulties.

In  the  spring  of  1989, Wolf  experienced  heart  problems

requiring   a  brief   hospitalization.     Thereafter,  Wolf

continued  to work until April  24, 1989, when  he suffered a

massive heart attack.

          From the  time  of Wolf's  depression diagnosis  in

1988  until his heart attack  in 1989, he  actually drew only

$500  per  week  of  his  $8,000  per  month  salary  due  to

                             -2-                                          2

Brookfield's   ongoing   financial  problems.      There  was

conflicting testimony  at trial  as to whether  Wolf actually

was entitled  to the  unpaid remainder  of his  salary, which

Wolf asserted the company owed him as a debt payable.

          The  insurance  policy  under  which   Wolf  sought

recovery  took  effect  on  February  1,  1985.   The  policy

provided a monthly  benefit to a  disabled employee equal  to

sixty percent of "covered  monthly earnings," defined as "the

insured's  basic monthly salary  received from [the employer]

on the  day just before  the date of  total disability."   In

September 1990,  Wolf filed a claim  for disability benefits.

Reliance  denied the claim in May 1991, stating that Wolf had

neither  proved  that he  was  a full-time  employee  when he

became disabled  nor that he  was totally disabled,  and that

Wolf was late giving notice of his claim.

          In  January  1992, Wolf,  a  Massachusetts citizen,

sued Reliance in Massachusetts state court alleging breach of

contract and  unfair trade practices.   Reliance, an Illinois

corporation  with   its  principal   place  of  business   in

Pennsylvania, removed  the suit,  based on diversity,  to the

United   States   District   Court  for   the   District   of

Massachusetts.  28 U.S.C.    1441, 1332.

          The   parties  consented   to  trial   before  U.S.

Magistrate Judge  Charles B. Swartwood  III.  On  October 25,

                             -3-                                          3

1994,  one  week   before  trial,   Reliance  filed   several

motions,1  each asserting,  for the  first time,  that Wolf's

state law  claims were  preempted by the  Employee Retirement

Income  Security Act of 1974  ("ERISA").  29  U.S.C.    1001-

1461.   The trial court denied the motions, ruling that ERISA

preemption was  an affirmative defense which  Reliance waived

by  failing to plead it in a  timely manner.  The trial court

then denied  Reliance leave  to amend its  pleadings, finding

undue delay by Reliance and significant prejudice to Wolf if,

on  the eve  of trial,  Reliance were  allowed to  change the

entire  legal basis for its opposition to Wolf's claim by its

introduction of an ERISA preemption defense.2

            The breach of contract claim was tried to a  jury

on November  2-4, 1994,  resulting in  a special  verdict for

Wolf.   The jury found  that Wolf's basic  monthly salary was

$8,000  per  month  on  the  day  before  he  became  totally

disabled.  The trial court  entered judgment for Reliance  on

the unfair  trade practices claim,  and Wolf does  not appeal

from that judgment.  In December 1994, the trial court issued

a  memorandum  decision  calculating  Wolf's  damages  to  be

                                                    

1.  Specifically,  Reliance  filed  motions  to  dismiss  for
failure to state a claim, to strike Wolf's jury trial demand,
and to apply an arbitrary and capricious standard of review.

2.  The  only  previous  indication  of  any  possible  ERISA
preemption  argument in  this litigation  was an  exchange of
letters dated May 31, 1991 and July 29, 1991 between Reliance
and Wolf's  attorney, each making a  single passing reference
to ERISA.

                             -4-                                          4

$196,606.72  plus  interest and  future payments.3   Reliance

then filed a renewed motion  for judgment as a matter  of law

and, alternatively, a motion  for a new trial, and  both were

denied.  This appeal followed.

                             II.                                         II.                                            

                          DISCUSSION                                      DISCUSSION                                                

          The  principal issue  before  us  is whether  ERISA

preemption is jurisdictional, and thus  may be raised at  any

point in  litigation, or an affirmative  defense, waivable if

not pleaded timely.   A  related issue is  whether the  trial

court  abused its  discretion  in denying  Reliance leave  to

amend its pleadings to add an ERISA preemption defense.

A.  ERISA Preemption                                

          Whether ERISA  preemption  is jurisdictional  or  a

waivable  affirmative defense is a pure  question of law that

we review de novo.  See Correa v. Hospital San Francisco, No.                                                                    

95-1167, 1995 WL 627505, at *6 (1st Cir. Oct. 31, 1995).

          Reliance argues that because there is a "compelling

policy"  in favor of application of federal ERISA law to this

claim,  ERISA  preemption  is  jurisdictional4  and therefore

                                                    

3.  The parties stipulated that  if Reliance was found liable
to Wolf, the trial court would calculate the damages.

4.  We note  that  although Reliance  did  not use  the  term
"jurisdictional," that is the thrust of its argument.

                             -5-                                          5

nonwaivable.5   The  foundation  of the  argument is  ERISA's

broad  preemption provision: ERISA  [with a  few inapplicable

exceptions] "shall  supersede any and all  State laws insofar

as they may now  or hereafter relate to any  employee benefit

plan .  . .  . "   29 U.S.C.    1144(a).   One of  Congress's

intentions in enacting ERISA,  as divined through legislative

history,  was to  encourage  the growth  of private  employee

benefit  plans  by  replacing   diverse  state  laws  with  a

nationally  uniform federal  common  law regulating  employee

benefit   plans.6     Treating   ERISA  preemption   as  non-

jurisdictional  and therefore waivable would, so the argument

goes,  frustrate  that  intent, subjecting  employee  benefit

plans to  regulation and  litigation under  fifty non-uniform

bodies of state law.  The costs of adapting to and litigating

under non-uniform  state law and the  potential for liability

and  damages beyond  that permitted  under ERISA  would deter

employers from enacting benefits  plans.  Thus, courts should

                                                    

5.  See  Insurance Corp.  of Ireland,  Ltd. v.  Compagnie des                                                                         
Bauxites de Guinee, 456 U.S. 694, 702 (1982) (explaining that                              
subject  matter jurisdiction  is nonwaivable);  see generally                                                                         
George Lee Flint, Jr.,  ERISA: Nonwaivability of  Preemption,                                                                        
39 U. Kan.  L. Rev.  297 (1991) (arguing  that courts  should
hold ERISA preemption nonwaivable).

6.  ERISA's House sponsor, Representative Dent, described the
"reservation  to Federal  authority  [of] the  sole power  to
regulate  the field  of  employee benefit  plans" as  ERISA's
"crowning  achievement."     120  Cong.  Rec.  29197  (1974).
Senator Williams commented that ERISA's preemption  will have
the  effect  of "eliminating  the  threat  of conflicting  or
inconsistent State  and local regulation  of employee benefit
plans."  Id. at 29933.                        

                             -6-                                          6

hold  that  ERISA   preemption  is  jurisdictional  and   not

waivable, consistent with the congressional intent  to create

and apply  a uniform federal law  regulating employee benefit

plans.

          While the  foregoing argument is not without merit,

it  is precluded by precedent.  The Supreme Court analyzed at

length  the legislative  history  behind  ERISA's  preemption

provision in Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 44-                                                       

46, 52-57 (1987), focusing on the civil enforcement scheme of

  502(a) of ERISA  (29 U.S.C.   1132(a)), under which  a plan

participant can bring  a suit  for benefits due.   The  Court

concluded  that Congress  intended  to  create  an  exclusive

federal remedy, with a "pre-emptive force . . . modeled after

  301"  of the  Labor Management  Relations Act  ("LMRA"), 29

U.S.C.   185.  Pilot Life,  481 U.S. at 52.  Accordingly, the                                     

Court held that ERISA preempts all state law causes of action

for benefits due under an ERISA plan.  Id. at 57.  Pilot Life                                                                         

did not present the  question whether ERISA preemption was  a

jurisdictional matter or a  waivable defense, but the Supreme

Court  made clear  that courts  deciding  the scope  of ERISA

preemption  should  look  to LMRA  preemption  decisions  for

guidance.  Id. at 54-55.                          

          The  Pilot  Life  decision  explains  that  ERISA's                                      

preemption  clause  and  civil  enforcement  scheme  entirely

displaced  state law  causes  of action  for benefits  claims

                             -7-                                          7

under  ERISA  plans.    Id.  at  55-57.    If  state  law  is                                       

"displaced,"  then  arguably  there  is  no   subject  matter

jurisdiction over  a state law  cause of action  for benefits

due.   Lack of subject  matter jurisdiction is,  of course, a

nonwaivable defense and may be raised at any time.  Insurance                                                                         

Corp.  of Ireland, Ltd. v. Compagnie  des Bauxites de Guinee,                                                                        

456 U.S. 694,  702 (1982).   That jurisdictional argument  is

unavailing, however, because  this Circuit has squarely  held

that LMRA preemption is  waivable.  Sweeney v. Westvaco  Co.,                                                                        

926  F.2d 29, 40 (1st Cir.) (Breyer, C.J.), cert. denied, 502                                                                    

U.S. 899 (1991).  Given that  the Supreme Court in Pilot Life                                                                         

explicitly  directed courts  to treat  ERISA  preemption like

LMRA preemption, 481 U.S. 51-56, Judge (now Justice) Breyer's

analysis  in   Sweeney  leads  us  to   conclude  that  ERISA                                  

preemption is also waivable.

          The  rationale behind  Sweeney's holding  that LMRA                                                      

preemption  is waivable  applies  with equal  force to  ERISA

preemption.   The Sweeney  court began  with  an analysis  of                                     

International  Longshoremen's Ass'n  v. Davis,  476  U.S. 380                                                         

(1986), a  National Labor  Relations Act  ("NLRA") preemption

case.   See 29  U.S.C.     157, 158.   In Davis,  the Supreme                                                           

Court  held  that  NLRA  preemption  is  jurisdictional,  and

therefore  nonwaivable, because NLRA  preemption dictates the

choice  of forum (i.e., whether a court or the National Labor                            

Relations Board ("NLRB") has  the power to hear the  case) as

                             -8-                                          8

opposed to simply the  choice of law (i.e., whether  state or                                                

federal law applies).   See id. at 398-99.   Sweeney stressed                                                                

that the  Supreme Court itself carefully  limited its holding

in  Davis to    7  and 8 of the NLRA  and not other statutes.                     

Sweeney,  926  F.2d  at  38.     Those  sections  evidence  a                   

Congressional intent to "refuse[] to permit parties to submit

such  a  dispute   to  the  courts  even  where  the  parties

themselves wished to do so."  Id. at 38-39.  In Sweeney, this                                                                   

court   determined   that   LMRA  preemption,   unlike   NLRA

preemption, "concerns  what law a decision  maker must apply,                                           

not what  forum must decide  the dispute."   926 F.2d  at 39.                           

Based  on that  premise,  the panel  in  Sweeney applied  the                                                            

converse of  the Davis rule, holding that  LMRA preemption is                                  

waivable because it affects the choice of law, not the choice

of forum.  Id. at 39-40.                          

          Like  LMRA  preemption,   ERISA  preemption  in   a

benefits-due  action does  not  affect the  choice of  forum,

because ERISA's jurisdictional provision provides that "State

courts of  competent jurisdiction and district  courts of the

United States shall have concurrent jurisdiction of actions,"                                                            

29  U.S.C.     1132(e)(1)  (emphasis added),  "brought  by  a

participant  or beneficiary  to  recover benefits  due."   29

U.S.C.   1132(a)(1)(B).   The plain language of    1132 tells

us that  if a plaintiff  brought a  "benefits-due" action  in

state court and the  defendant pleaded ERISA preemption, this

                             -9-                                          9

would not deprive the court of  jurisdiction over the subject

matter; rather,  ERISA  preemption in  that  situation  would

dictate the applicable law.   Preemption is, as Sweeney says,                                                                   

ultimately  "a matter  of Congressional intent,  as embodied,

explicitly or implicitly, in  a particular federal  statute."

Sweeney, 926 F.2d at 38.  In  considering that intent, we are                   

guided by a number of factors.  It is instructive, though not

necessarily  dispositive,  that ERISA,  like  the  statute in

Sweeney,  is a choice  of law rather  than a  choice of forum                   

statute.  We  also believe that  the interests in  uniformity

which  Congress hoped  to serve  in ERISA  did not  extend to

permitting defendant corporations,  often more  sophisticated

about ERISA than individual plaintiffs, to sit on their hands

and  not  claim  the defense  until  the  last  minute.   Cf.                                                                         

Williams  v. Ashland Eng'g Co.,  Inc., 45 F.3d  588, 593 (1st                                                 

Cir.)  (emphasizing the importance  of protecting against the

strategic  use of  a last  minute ERISA  preemption defense),

cert. denied, 116 S.  Ct. (1995).  That employers  were meant                        

to enjoy the benefits  of uniformity did not mean  they could

not forego those benefits.

          Other  courts,   including  the  Fifth   and  Ninth

Circuits have held  that ERISA preemption  is waivable.   See                                                                         

Dueringer v. General  Am. Life  Ins. Co., 842  F.2d 127,  130                                                    

(5th Cir. 1988) (holding  that ERISA preemption is waivable);

Gilchrist  v. Jim Slemons Imports,  Inc., 803 F.2d 1488, 1497                                                    

                             -10-                                          10

(9th Cir. 1986) (same); Rehabilitation Inst. of Pittsburgh v.                                                                      

Equitable Life  Assur. Soc'y,  131 F.R.D. 99,  101 (W.D.  Pa.                                        

1990) (same), aff'd, 937 F.2d 598 (3d Cir. 1991).                               

          An apparent majority of state courts addressing the

question have  reached the  same conclusion.   See  Gorman v.                                                                      

Life Ins. Co. of N. Am., 811  S.W.2d 542, 546 (Tex.) (holding                                   

that  ERISA preemption is waivable when it does not deprive a

state  court of  jurisdiction),  cert. denied,  502 U.S.  824                                                         

(1991); Curry  v. Cincinnati  Equitable Ins. Co.,  834 S.W.2d                                                            

701,  703 (Ky. Ct. App. 1992) (same); Hughes v. Blue Cross of                                                                         

N. Cal., 263 Cal. Rptr. 850, 861 (Cal. Ct. App. 1989) (same),                   

cert. dismissed, 495 U.S. 944  (1990); Associates Inv. Co. v.                                                                      

Claeys, 533  N.E.2d 1248, 1251 (Ind. Ct. App. 1989).  But see                                                                         

Chestnut-Adams Ltd.  Partnership  v. Bricklayers  and  Masons                                                                         

Trust  Funds of  Boston,  Mass., 612  N.E.2d 236,  238 (Mass.                                           

1993) (holding  that the  preemption intended by  Congress in

enacting ERISA is so  broad as to make it  jurisdictional and

therefore nonwaivable); Barry v. Dymo Graphic Sys., Inc., 478                                                                    

N.E.2d 707, 712 (Mass. 1985) (same).7

          Accordingly,  we hold  that ERISA  preemption in  a

benefits-due action is  waivable, not jurisdictional, because

                                                    

7.  We are, of course, not bound by the Massachusetts Supreme
Judicial Court's  interpretation of a federal  statute or the
Congressional intent behind it.

                             -11-                                          11

it  concerns  the  choice of  substantive  law  but does  not

implicate the power of the forum to adjudicate the dispute.8

          We  now   turn  to  the   question  whether   ERISA

preemption   must  be  pleaded  as  an  affirmative  defense.

Federal  Rule  of  Civil   Procedure  8(c)  requires  that  a

responsive pleading set  forth certain enumerated affirmative

defenses  as  well  as  "any  other  matter  constituting  an

avoidance or affirmative defense."  Fed. R. Civ. P. 8(c); see                                                                         

generally  5 Charles  A. Wright  &amp; Arthur R.  Miller, Federal                                                                         

Practice and Procedure   1271 (1990).  The First Circuit test                                  

for  whether  a given  defense  falls  within  the Rule  8(c)

"residuary" clause is whether  the defense "shares the common

characteristic of  a bar to the right of recovery even if the

general complaint were  more or less admitted  to."  Jakobsen                                                                         

v.  Mass.  Port Auth.,  520 F.2d  810,  813 (1st  Cir. 1975).                                 

ERISA preemption  shares  this characteristic  insofar as  it

would bar  Wolf  from recovering  on his  state law  contract

claim   even  if   Reliance   admitted  Wolf's   allegations.

Therefore  we hold  that ERISA  preemption in  a benefits-due

action  is an affirmative defense and, as such, it is subject

to waiver if not timely pleaded.

                                                    

8.  Our holding  is limited to ERISA  preemption of benefits-
due  actions.   ERISA permits  several other  types of  civil
actions (e.g., for injunctive relief, for breach of fiduciary
duty, etc.) subject to  exclusive jurisdiction in the federal
courts rather than concurrent jurisdiction.  See 29 U.S.C.                                                               
1132(a)(1)(A), 1132(a)(2)-(6), 1132(e)(1).

                             -12-                                          12

          Several courts, including  this Circuit in  dictum,                                                                        

have held that ERISA  preemption in benefits-due actions must

be pleaded timely as an affirmative defense.  See Williams v.                                                                      

Ashland Eng'g Co.,  Inc., 45 F.3d  588, 593 &amp; n.7  (1st Cir.)                                    

(stating, in dictum, that  ERISA preemption is an affirmative                               

defense, but finding no waiver when pleaded six months before

summary  judgment),  cert.  denied,  116 S.  Ct.  51  (1995);                                              

Dueringer, 842 F.2d at 129-130 (5th Cir.  1988) (holding that                     

ERISA preemption must be  pleaded as an affirmative defense);

Rehabilitation Inst.,  131 F.R.D.  at 100-01 (W.D.  Pa. 1990)                                

(same), aff'd,  937  F.2d 598  (3d  Cir. 1991);  Gorman,  811                                                                   

S.W.2d  at 546 (Tex. 1991)  (same); Curry, 834  S.W.3d at 703                                                     

(Ky.  Ct.  App. 1992)  (same);  but  see Chestnut-Adams,  612                                                                   

N.E.2d at 238 (Mass. 1993)  (holding that ERISA preemption is

jurisdictional and therefore not waivable).

B.  Amendment of the Pleadings                                          

          Having  concluded  that  ERISA  preemption   is  an

affirmative  defense,  it   follows  that  the   trial  court

correctly   treated   Reliance's  attempt   to   raise  ERISA

preemption   as  a   motion  seeking   leave  to   amend  the

pleadings.9   We now address  whether the trial  court abused

its discretion in denying Reliance leave to amend.

                                                    

9.  At  oral argument on  the eleventh-hour motions, Reliance
conceded the true goal  of the motions: "It's not  to dismiss
the complaint per se,  it's just to substitute ERISA  for the                                
breach of contract under state law."

                             -13-                                          13

          Whether  or  not  to   grant  leave  to  amend  the

pleadings is within the discretion of the trial court and the

court's  decision will  be reversed  only upon  a showing  of

abuse of that discretion.  Manzoli v. Commissioner, 904  F.2d                                                              

101, 107 (1st Cir. 1990).

          Failure to  plead an affirmative  defense generally

results in waiver of  the defense and its exclusion  from the

case.  Conjugal Partnership  v. Conjugal Partnership, 22 F.3d                                                                

391, 400 (1st  Cir. 1994).   An affirmative  defense must  be

pleaded in the  answer in  order to give  the opposing  party

notice  of the defense and  a chance to  develop evidence and

offer arguments to controvert the defense.  Knapp Shoes, Inc.                                                                         

v. Sylvania Shoe  Mfg. Corp.,  15 F.3d 1222,  1226 (1st  Cir.                                        

1994).

          Reliance  conceded  at  oral  argument  that  ERISA

preemption was  an affirmative defense.   It argued, however,

that having raised in its answer a  broad "failure to state a

claim  upon which relief may be granted" defense, see Fed. R.                                                                 

Civ.  P. 12(b)(6), this defense  allowed it to  later, a week

before trial, raise the specific defense of ERISA preemption.

Cf.  Williams, 45  F.3d  at 593.    In Williams,  this  court                                                           

enunciated a  test to determine when  a general, non-specific

defense of  failure to state  a claim,  see Fed.  R. Civ.  P.                                                       

12(b)(6),  as Reliance  originally  filed, is  sufficient  to

preserve the affirmative defense  of ERISA preemption.  "[A]n

                             -14-                                          14

inquiring   court   must   examine   the  totality   of   the

circumstances  and make  a practical,  commonsense assessment

about  whether  Rule  8(c)'s core  purpose  --  to  act as  a

safeguard against  surprise and unfair prejudice  -- has been

vindicated."   Id.  In  Williams, the defendant  raised ERISA                                            

preemption well before the close of discovery, and six months

prior to  the filing  of cross-motions for  summary judgment.

Id.  The issue was  briefed by both sides on summary judgment               

and thus we found that no "ambush" had occurred.  Id.  In the                                                                 

instant  case,   however,  Reliance  did   not  raise   ERISA

preemption  in its answer,  at the pretrial  hearings, in the

pretrial  memoranda, or  at any  point during  discovery, but

rather  raised it  only five  days before  trial.10   As this

Circuit  recently  said in  another  case  of waiver,  "[t]he

chronology  of the  case  speaks volumes  about  the lack  of

timeliness."  Correa v.  Hospital San Francisco, No. 95-1167,                                                           

1995 WL 627505, at *8 (1st Cir. Oct. 31, 1995).

          The trial  court denied  leave to amend  because of

the  undue delay by Reliance  in raising the  issue11 and the

                                                    

10.  Reliance argues that the previously  referenced exchange
of letters was sufficient to put Wolf on notice that Reliance
intended to  pursue an ERISA  preemption defense.   See supra                                                                         
note 2.  We cannot agree that the passing references in those
letters  are the  legal equivalent of  pursuing a  defense in
court.

11.  When the trial judge asked Reliance at oral argument why
ERISA preemption  was not raised earlier,  counsel explained:
"I   sat  down  a  couple  weeks  ago  to  start  doing  jury
instructions and things  in the case  and realized that  this

                             -15-                                          15

substantial prejudice to Wolf if amendment  were allowed.  It

is well within  a court's discretion to find  prejudice where

the amendment "substantially changes  the theory on which the

case  has been proceeding and is proposed late enough so that

the opponent would  be required to engage  in significant new

preparation."  See 6 Wright &amp; Miller,  supra,   1487, at 623.                                                        

This  is precisely such a case: Reliance sought to change the

theory of the case  five days before trial, which  would have

forced  Wolf to conduct  additional discovery,  research, and

preparation  on the  ERISA-related issues.12   We  hold that,

based  on  these  considerations,   there  was  no  abuse  of

discretion in denying leave to amend.

C.  Reliance's Other Arguments                                          

          We have considered appellant's other  assertions of

error and find them to be without merit.

                             III.                                         III.                                             

                          CONCLUSION                                      CONCLUSION                                                

          For the foregoing reasons, the judgment of the

trial court is Affirmed.  Costs to appellees.                           Affirmed   Costs to appellees                                                        

                                                    

was a case that  should be done by ERISA . . .  .  I had made
myself . . .  knowledgeable about ERISA in the last couple of
weeks.  It's not an area of my normal practice."

12.  Despite the  briefing by both  parties on the  merits of
ERISA preemption,  we have  no occasion to  reach the  issue,
because we find that the argument was waived.

                             -16-                                          16
