S. Ct. Civ. No. 2010-0025

Regarding the Superior Court's dismissal on federal ERISA preemption grounds of a complaint filed by the court-appointed guardian of a deceased employee, seeking life insurance proceeds and other damages from the deceased's former employer and its insurer, and alleging claims of breach of the insurance contract's covenant of good faith and fair dealing and a conspiracy to defraud, the guardian's arguments (1) that the order granting the motion to dismiss based on the affirmative defense of preemption was improper, (2) that the decedent's employer is not the kind of entity that can raise an ERISA defense, and (3) that the claims in the complaint are not preempted by ERISA, were never presented to the Superior Court and are thus waived. The guardian's argument that the Superior Court impermissibly determined that the life insurance documents attached to the complaint made up an ERISA plan is also deemed waived because it was argued for the first time on appeal in the guardian's reply brief, instead of her opening brief, and her description of the plan in the opening brief constituted a concession that the documents at issue are governed by ERISA. The guardian's final argument on appeal-that the case be reassigned to a different judge in the event of a remand, based on wholly unsupported allegations of pervasive bias and deep-seated favoritism or antagonism of the judge who dismissed the complaint-is waived because she never made any motion to the trial judge seeking disqualification or recusal under 4 V.I.C. §286. The judgment of the Superior Court dismissing the complaint is affirmed.