Winslow v. Montana Rail Link9/6/2005
cision that MRL offered, and that he therefore had a right to attack the validity and fairness of the grievance process, the decision against Winslow arising therefrom, and whether MRL had properly complied with the process. Consequently, Winslow asserts that MRL misrepresents that the CBA's presence in the case was due solely to Winslow's own claims.
The United States Supreme Court has held that a state claim is independent of a CBA for preemption purposes so long as the state claim can be resolved without interpreting the CBA itself. Lingle v. Norge Div. of Magic Chef (1988), 486 U.S. 399, 410, 108 S.Ct. 1877, 1883, 100 L.Ed.2d 410, 421. In Hawaiian Airlines, Inc. v. Norris (1994), 512 U.S. 246, 257, 114 S.Ct. 2239, 2249, 129 L.Ed.2d 203, 214, the United States Supreme Court explained that "substantive protections provided by state law, independent of whatever labor agreement might govern, are not pre-empted under the RLA." See also Missouri Pac. R. Co. v. Norwood (1931), 283 U.S. 249, 51 S.Ct. 458, 75 L.Ed. 1010. The United States Supreme Court also held in Terminal R.R. Assn. of St. Louis v. Trainmen (1943), 318 U.S. 1, 6-7, 63 S.Ct. 420, 423, 87 L.Ed. 571, 578, that "the enactment by Congress of the was not a preemption of the field of regulating working conditions themselves . . . ." The United States Supreme Court further limited the scope of RLA preemption in Andrews v. Louisville & Nashville R. Co. (1972), 406 U.S. 320, 324, 92 S.Ct. 1562, 1565, 32 L.Ed.2d 95, 97, when it held that a state law claim of wrongful termination was preempted, not because the RLA broadly preempts state law claims based on discharge or discipline, but because the employee's claim was firmly rooted in a breach of the CBA itself.
Winslow has consistently argued that his theory did not involve the CBA, but instead pertained to allegations that MRL used a false pretext to fire him in order to further a scheme designed to intimidate railroad workers so that they would not file injury reports. After review of the record, we conclude that Winslow's claims are not "firmly rooted" in a breach of the CBA itself, but instead are premised upon the provisions of ยง 39-2-703, MCA, which is a state law claim. See Winslow I, 27. Thus, we conclude that the District Court properly denied MRL's motion for summary judgment and its subsequent Rule 50(b), M.R.Civ.P., motion as to RLA preemption.
As to ERISA, MRL argues that Winslow's state law claims about improper handling of medical benefits and negligent management of employee benefit plans are preempted by ERISA, which is a "comprehensive statute designed to promote the interests of employees and their beneficiaries in employee benefits plans." Shaw v. Delta Air Lines, Inc. (1983), 463 U.S. 85, 90, 103 S.Ct. 2890, 2896, 77 L.Ed.2d 490, 497. Winslow responds that MRL did not properly raise its ERISA preemption argument on appeal and waived it as an affirmative defense under Rule 8(c), M.R.Civ.P.
Other jurisdictions have held that ERISA preemption in benefits-due actions "must be pleaded timely as an affirmative defense." Wolf v. Reliance Std. Life Ins. Co. (1st Cir. 1995), 71 F.3d 444, 449-50. This Court has previously held that "an affirmative defense is waived if not set forth affirmatively." Nitzel v. Wickman (1997), 283 Mont. 284, 312, 940 P.2d 451, 456. Moreover, "an affirmative defense . . . is waived if it is not raised in the answer to a claim." Marias Healthcare Services, Inc. v. Turenne, 2001 MT 127, 9, 305 Mont. 419, 9, 28 P.3d 491, 9. Because MRL failed to raise its ERISA argument until years after the commencement of the litigation, we conclude the District Court properly denied MRL's ERISA defense on the basis of waiver.
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