law were to apply, no cognizable cause of action would exist because the plaintiff had already obtained workers compensation benefits. Therefore, after the district court held that Colorado law did apply, it dismissed the case for lack of subject matter jurisdiction. The plaintiff appealed the choice-of-law question to this Court. We affirmed the district court’s choice-of-law decision and also explained that dismissal was proper because “there are cases where, even if diversity of citizenship exists, a federal court ‘will not take jurisdiction [ ] unless the plaintiff has asserted a claim cognizable in the state 63, 548 P.2d 914, 916 (1976) (referring to workers’ compensation immunity as an “affirmative defense”); Bigby v. Big 3 Supply Co., 937 P.2d 794, 799 (Colo.Ct.App.1996) (<HOLDING>). - As a waivable defense, this issue does not
holding that an affirmative defense is ordinarily lost if not timely raised holding that the exclusivity of workers compensation is an affirmative statutory defense which must be timely raised or it is waived holding state is required to raise procedural bar as affirmative defense or it is waived holding that prohibition may not be used to raise affirmative defense of workers compensation immunity holding that the statute of limitations in a criminal case is a nonjurisdictional affirmative defense that is waived if not raised in the trial court