Williams v. Ashland Engineering Co.

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-2046

WILLIAM WILLIAMS, ETC., ET AL.,
Plaintiffs, Appellants,

v.

ASHLAND ENGINEERING CO., INC., ET AL.,
Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Walter Jay Skinner, Senior U.S. District Judge]

Before

Selya, Boudin and Stahl, Circuit Judges.

Robert O. Berger for appellants.

Bradford R. Carver, with whom Edward F. Vena, Michael S.

Levitz, and Vena, Truelove & Riley were on brief, for appellees.

January 31, 1995

SELYA, Circuit Judge. We are reminded today that
SELYA, Circuit Judge.

malapropisms, despite their semantic shortcomings, often describe

the human condition with unerring accuracy. There are, for

example, certain situations that actually do evoke the sensation

of "d j vu all over again."1 We explain below why this appeal

falls into that category.

In McCoy v. Massachusetts Institute of Technology, 950

F.2d 13 (1st Cir. 1991), cert. denied, 112 S. Ct. 1939 (1992),

the fiduciary of several union-sponsored employee benefit plans

brought suit to enforce a lien on real property owned by a

university. He alleged that an electrical contractor hired to

construct improvements to school buildings had employed union

members to do the work; that the contractor, heedless of its

obligations under a collective bargaining agreement, neglected to

defray the workers' employee benefit contributions; and that a

state statute, Mass. Gen. L. ch. 254, quoted in the margin,2

1This epigram is often attributed to Lawrence P. (Yogi)
Berra, a man as famous for mangling the English language as for
belting baseballs. Berra coined many aphorisms but not this
one. See Ralph Keyes, Nice Guys Finish Seventh; Phrases,

Spurious Sayings and Familiar Misquotations 152 (1992) (noting

that "although this is commonly cited as a `Berra-ism,' Yogi
Berra denies ever saying it"). The phrase's origin is unknown.

2The statute provides in relevant part:

A person to whom a debt is due for
personal labor performed in the erection,
alteration, repair or removal of a building
or structure upon land, by virtue of an
agreement with, or by consent of, the owner .
. . shall . . . have a lien upon such
building or structure . . . .

For purposes of this chapter, a person

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authorized the fiduciary to collect unpaid contributions by

asserting a mechanic's lien against real property that had been

improved through the plan participants' labor. See McCoy, 950

F.2d at 15. We held that the Employment Retirement Income

Security Act of 1974 (ERISA), 29 U.S.C. 1001-1461 (1988), and

specifically, ERISA 514(a), 29 U.S.C. 1144(a) (commanding

that ERISA "shall supersede any and all State laws insofar as

they may now or hereafter relate to any employee benefit plan"),

preempted use of the Massachusetts mechanic's lien law to recoup

the unpaid contributions. See McCoy, 950 F.2d at 18-20.

The case at bar is hauntingly reminiscent of McCoy,

and, thus, triggers the sense of d j vu. Appellants are the

trustees of certain funds (the Funds) maintained by Local 4 of

the International Union of Operating Engineers to fuel the

union's employee benefit plans. In 1991, members of Local 4,

then employed directly or indirectly by a subcontractor, Ashland

shall include any employee of any employer
and the trustee or trustees of any fund or
funds, established pursuant to section 302 of
the Taft Hartley Law (29 USC 186), providing
coverage or benefits to said person. The
trustee or trustees of any such fund or funds
shall have all the liens under this chapter
that any person has. The trustee or trustees
shall also have the right to enforce said
liens pursuant to this chapter.

Mass. Gen. L. ch. 254, 1 (1990). The statute also specifically
provides that "the trustee or trustees of a fund or funds,
described in section one, providing coverage or benefits to any
person performing labor under a written contract with a
contractor, or with a subcontractor of such contractor," may file
a lien notice, id. 4, and enforce the lien by a civil action

brought against the property owner, id. 5.

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Engineering Company (Ashland), participated in ongoing

construction under the auspices of the Massachusetts Port

Authority (Massport). A collective bargaining agreement

obligated Ashland to contribute monies to the Funds commensurate

with the number of hours each union member toiled on the Massport

project.

In time, Ashland experienced financial problems, became

delinquent on contributions to the Funds, and abandoned the

Massport project. Noting that the general contractor, R.W.

Granger and Sons, Inc. (Granger), had posted a performance-and-

payment bond underwritten by United States Fidelity & Guaranty

Company (USF&G), the trustees sued Ashland, Granger, and USF&G in

an effort to extract the unpaid employer contributions.

The trustees' amended complaint contained three counts:

count 1 sought to collect payments due from Ashland, count 2

sought to collect these payments from USF&G by invoking the

Massachusetts statute under which the bond had been posted,3 and

3The bond statute provides in pertinent part that, when
state officials contract for construction of public buildings,
they

shall obtain security by bond . . . for
payment by the contractor and subcontractors
for labor performed or furnished and
materials used or employed therein . . . .
and for payment by such contractor and
subcontractors of any sums due trustees . . .
authorized to collect such payments from the
contractor or subcontractors, based upon the
labor performed or furnished as aforesaid,
for health and welfare plans, supplementary
unemployment benefit plans and other fringe
benefits which are payable in cash and
provided for in collective bargaining

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count 3 sought to reach an asset of Ashland purportedly held by

Granger the bond and to apply the proceeds to Ashland's debt.

Ashland did not defend and, therefore, count 1 is no

longer velivolant. On June 1, 1993, the parties filed cross-

motions for summary judgment on the two remaining counts. The

district court granted the defendants' motions, concluding that

ERISA preempted the section 29 claim as it pertains to employee

benefit plans, and that Granger held none of Ashland's assets.

See Williams v. Ashland Eng'g Co., 863 F. Supp. 46 (D. Mass.

1994). Following the entry of separate judgments, the trustees

appealed.

In this venue, the trustees agree that brevis

disposition is warranted the record reveals no genuine issues

of material fact but they contend that the lower court ruled in

favor of the wrong parties. Affording plenary review, see, e.g.,

Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991),

cert. denied, 112 S. Ct. 2965 (1992); Garside v. Osco Drug, Inc.,

895 F.2d 46, 48 (1st Cir. 1990), we affirm.4

The centerpiece of the trustees' appeal count 2 is

well within McCoy's precedential orbit. In McCoy, we

acknowledged that Congress painted with a broad brush when it

agreements . . . .

Mass. Gen. L. ch. 149, 29 (1990).

4We eschew any independent discussion of count 3, inasmuch
as we discern no error in the district court's stated reasons for
granting summary judgment on that count. See Williams, 863 F.

Supp. at 50.

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added an express preemption clause to the ERISA canvas. We

described that clause as "sweeping" and "extensive in its scope."

McCoy, 950 F.2d at 16. We also noted that the Massachusetts lien

law at issue in McCoy referred specifically to the trustees of

employee benefit plans and purported to grant them certain

singular rights. In our view, these features rendered the law

especially vulnerable to preemption, for "[s]tate statutes which

expressly grant preferential benefits to ERISA plans cannot

withstand the preemptive force of ERISA 514(a)." Id. at 20;

accord Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S.

825, 829 (1988). Thus, McCoy made clear that, at a bare minimum,

state laws which "specifically refer to ERISA plans and grant

them special treatment" are preempted regardless of a state

legislature's good intentions or a particular law's consistency

with ERISA's overall goals. McCoy, 950 F.2d at 18 (quoting

Mackey, 486 U.S. at 829-30).

The statute before us today, Mass. Gen. L. ch. 149,

29, invites comparison with the statute we confronted in McCoy.

Section 29 requires, inter alia, that a general contractor

working on a public project furnish bond to secure payment of

"any sums due trustees . . . for health and welfare plans." Such

plans come under the protective umbrella that ERISA spreads over

the workplace. See 29 U.S.C. 1002(1)(B), (3) (defining covered

employee welfare benefit plans); see also McCoy, 950 F.2d at 19-

20. Since the statute specifically refers to ERISA-regulated

employee benefit plans, and provides them with a special source

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of recovery for unpaid employer contributions, McCoy governs.

Hence, the bond statute, as it applies to employee benefit plans,

is preempted.

Appellants balk at the characterization of their case

as McCoy redux. They loose an avalanche of arguments, but none

is persuasive. Only four of these arguments require comment.

First: Appellants launch a ferocious attack on McCoy,
First:

intimating that it is wrongly decided and, therefore, should be

limited to its facts. Statutes like the mechanic's lien law or

the bond law, they tell us, affect employee benefit plans in "too

tenuous, remote, or peripheral a manner," Shaw v. Delta Airlines,

Inc., 463 U.S. 85, 100 n.21 (1983), to warrant a conclusion that

the statutes "relate to" such plans. This attack is wide of the

mark.

First and foremost, we believe that our earlier opinion

was and is clearly correct (that it is, so to speak, the real

McCoy). And we perceive no rational basis on which to

distinguish between the mechanic's lien law and section 29 for

the purpose of gauging ERISA's preemptive reach.

Because the two statutes are quite plainly sisters

under the skin, there is also a prudential barrier that blocks

the path of appellants' attack. In a multi-panel circuit, newly

constituted panels are, for the most part, bound by prior panel

decisions closely on point. See, e.g., Jusino v. Zayas, 875 F.2d

986, 993 (1st Cir. 1989); Lacy v. Gardino, 791 F.2d 980, 985 (1st

Cir.), cert. denied, 479 U.S. 888 (1986). In this instance, we

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are bound by McCoy.

To be sure, there are two exceptions to this

manifestation of stare decisis principles. An existing panel

decision may be undermined by controlling authority, subsequently

announced, such as an opinion of the Supreme Court, an en banc

opinion of the circuit court, or a statutory overruling. This

exception is inapposite, for nothing of the kind has transpired

here. The second exception pertains to those relatively rare

instances in which authority that postdates the original

decision, although not directly controlling, nevertheless offers

a sound reason for believing that the former panel, in light of

fresh developments, would change its collective mind. See

generally Colby v. J.C. Penney Co., 811 F.2d 1119, 1123 (7th Cir.

1987) (discussing "complex relationship . . . between a court and

its own previous decisions").

Appellants try to wriggle through this loophole. They

suggest that a case recently decided by the Third Circuit casts a

new light on ERISA preemption by focussing on "whether the

existence of ERISA plans is necessary for the statute to be

meaningfully applied," Keystone Chapter, Etc. v. Foley, 37 F.3d

945, 957 (3d Cir. 1994), and that this shifted focus renders

McCoy obsolete. However, appellants mischaracterize the holding

in Keystone. There, the court reviewed a state minimum wage

statute that did not refer explicitly to ERISA plans. After

finding that the statute failed to single out such plans for

special treatment, the court invoked the meaningfulness test to

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determine whether the statute might be said to "relate to" ERISA

plans despite the absence of an express connection. See id. at

954-57. Since section 29 does single out ERISA plans for special

swaddling, there is no need to consider the Keystone test in this

case.5

Second: Next, the trustees contend that section 29 is,
Second:

in effect, a law regulating insurance and, therefore, is shielded

from preemption by ERISA 514(b)(2)(A), 29 U.S.C.

1144(b)(2)(A) (a savings clause that, inter alia, renders ERISA

preemption inapplicable to "any law of any State which regulates

insurance"). This contention lacks force. In order to

"regulate[] insurance" within the purview of this exception, a

law must not merely have an impact on the insurance industry, or

on particular insurance products, but must be directed

specifically toward the business of insurance. See Pilot Life

Ins. Co. v. Dedeaux, 481 U.S. 41, 50 (1987); Metropolitan Life

Ins. Co. v. Massachusetts, 471 U.S. 724, 739-47 (1985). Section

29 does not satisfy this criterion for two reasons.

In the first place, although surety bonds often are

furnished by insurers, surety bonds are not insurance contracts,

see Mass. Gen. L. ch. 175, 107, and they are not subject to the

commonwealth's insurance laws. See Luso-Am. Credit Union v.

Cumis Ins. Soc., Inc., 616 F. Supp. 846, 848 (D. Mass. 1985);

5Indeed, the Keystone court itself found McCoy to be good

authority, citing it with approval in holding that ERISA
preempted a state administrative order that did specifically
single out ERISA-regulated plans for special treatment. See

Keystone, 37 F.3d at 955.

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General Elec. Co. v. Lexington Contracting Corp., 292 N.E.2d 874,

876 (Mass. 1973). In the second place, section 29 only requires

the posting of an acceptable bond, not necessarily the posting of

a bond underwritten by an insurance company. A cash bond or a

bond backed by, say, a letter of credit, surely would suffice.

In a real sense, then, section 29's impact on the insurance

industry is happenstance. Consequently, the statute cannot

plausibly be deemed to be directed toward, or to regulate, the

business of insurance.

Third: Appellants claim that, here, preemption is
Third:

beside the point because the bonding company waived the defense

by failing to assert it in the pleadings. This claim prescinds

from USF&G's answer to the trustees' complaint an answer that

did not mention preemption in so many words, but, rather,

contained a general denial and raised, as an affirmative defense,

failure to state a claim upon which relief could be granted.6

On the facts of this case, however, appellants' claim is composed

of more bleat than wool.

Generally speaking, a party must set forth all

affirmative defenses in the pleadings, on pain of possible

forfeiture. See Fed. R. Civ. P. 8(c);7 see also Conjugal

6USF&G also raised a second affirmative defense implicating
appellants' supposed noncompliance with conditions precedent to
recovery set forth in the bond. Given the posture of this
appeal, we need not discuss the second affirmative defense.

7Rule 8(c) requires parties, "[i]n pleading to a preceding
pleading," to "set forth affirmatively" various enumerated
defenses, as well as "any other matter constituting an avoidance
or affirmative defense." While preemption is not listed

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Partnership v. Conjugal Partnership, 22 F.3d 391, 400 (1st Cir.

1994). Here, although USF&G's answer did not specifically

mention a preemption defense, it did contain a broader Rule

12(b)(6) defense that was capable of encompassing preemption.

Cf. McCoy, 950 F.2d at 22-23 (upholding preemption-based

dismissal pursuant to Rule 12(b)(6)). The purpose of Rule 8(c)

is to give the court and the other parties fair warning that a

particular line of defense will be pursued. See, e.g., Blonder-

Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 350

(1970); Knapp Shoes, Inc. v. Sylvania Shoe Mfg. Corp., 15 F.3d

1222, 1226 (1st Cir. 1994). Hence, a defendant who fails to

assert an affirmative defense at all, or who asserts it in a

largely uninformative way, acts at his peril. See, e.g., FDIC v.

Ramirez-Rivera, 869 F.2d 624, 626 (1st Cir. 1989).

In determining whether general, non-specific language

in a defendant's answer, as was used here, suffices to preserve

an affirmative defense, an 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. In this case, USF&G complied with the spirit, if not

the letter, of Rule 8(c). Well before the close of discovery

and six months prior to the filing of the cross-motions for

specifically in the enumeration, it is a "matter constituting an
avoidance," and, thus, ordinarily comes within the ambit of the
rule. See, e.g., Keenan v. Dow Chem. Co., 717 F. Supp. 799, 808-

09 (M.D. Fla. 1989).

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summary judgment USF&G wrote to appellants and amplified its

position, asseverating that count 2 should be dismissed under

Rule 12(b)(6) because ERISA preempted section 29. In the papers

accompanying the cross-motions for summary judgment, both sides

briefed the preemption issue. Thus, no ambush occurred.

Where, as here, a plaintiff clearly anticipates that an

issue will be litigated, and is not unfairly prejudiced when the

defendant actually raises it, a mere failure to plead the defense

more particularly will not constitute a waiver. See Conjugal

Partnership, 22 F.3d at 401; Lucas v. United States, 807 F.2d

414, 418 (5th Cir. 1986).

Fourth: Appellants' final attempt to resuscitate their
Fourth:

claim against USF&G is hardly worth mentioning. It involves the

resupinate assertion that the Supremacy Clause of the Federal

Constitution, U.S. Const. art. VI, cl. 2, bars preemption of

section 29. This assertion is doubly flawed. For one thing, it

is new to the case, having been alluded to, but not developed

below, and accordingly, it is procedurally defaulted. See, e.g.,

McCoy, 950 F.2d at 22 ("It is hornbook law that theories not

raised squarely in the district court cannot be surfaced for the

first time on appeal."). For another thing, it takes a topsy-

turvy view of preemption. After all, when the Supremacy Clause

is implicated, federal law trumps state law, not vice versa. See

Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142

(1963).

We need go no further. The district court astutely

12

concluded that past is prologue, and looked to McCoy. See

Williams, 863 F. Supp. at 48. We agree that McCoy controls.

Hence, Mass. Gen. L. ch. 149, 29, as it applies to employee

welfare benefit plans, is preempted by ERISA 514(a). The

trustees' suit, therefore, fails.

Affirmed.
Affirmed.

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