1

The Honorable Patrick J. Schiltz, United States District Judge for the District

of Minnesota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-2021

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Alpine Glass, Inc., *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Illinois Farmers Insurance Company; *

Mid-Century Insurance Company. * 

*

Defendants - Appellants. *

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Submitted: January 16, 2008

Filed: July 9, 2008

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Before WOLLMAN, BRIGHT, and SMITH, Circuit Judges.

___________

BRIGHT, Circuit Judge.

Illinois Farmers Insurance Company and Mid-Century Insurance Company

(collectively “Illinois Farmers”) appeal from the district court’s1

 orders: (1)

dismissing their counterclaim for breach of contract and three requests for declaratory

relief; and (2) consolidating Alpine Glass, Inc.’s (“Alpine Glass”) short-pay claims

in a single arbitration under Minnesota’s No-Fault Automobile Insurance Act (“No-
2

See Ill. Farmers Ins. Co. v. Glass Serv. Co., 683 N.W.2d 792, 800 (Minn.

2004); Minn. Stat. § 65B.525, subdiv. 1.

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Fault Act”), Minn. Stat. §§ 65B.41-65B.71. We dismiss this appeal for want of

jurisdiction.

Alpine Glass repairs and replaces broken automobile glass. Illinois Farmers

provides, among other services, automobile insurance. In this case, Alpine Glass

apparently fixed or replaced Illinois Farmers’ insureds’ automobile glass on more than

a thousand occasions. And in every instance, Alpine Glass, after allegedly receiving

an assignment from the insured, submitted an invoice to Illinois Farmers to recoup

payment for its services. Alpine Glass claims that in every case Illinois Farmers paid

less than the amount stated on Alpine Glass’s invoice (i.e., short-pays). Alpine Glass

filed suit in Minnesota state court to recover the difference. Because Alpine Glass’s

claims – so called short-pay claims – are subject to mandatory arbitration under the

No-Fault Act,2

 Alpine Glass sought a declaration ordering that its claims be

consolidated for arbitration. Illinois Farmers subsequently removed this action to

federal district court. 

Before the district court, Illinois Farmers argued that arbitration was improper

in this case because: (1) Alpine Glass lacked standing to proceed as an assignee of

Illinois Farmers’ insureds by virtue of an anti-assignment clause in its automobile

insurance contracts; and (2) Alpine Glass’s policy of receiving assignments in

exchange for performing glass replacement services violated Minnesota’s antiincentive statute, Minn. Stat. § 325F.783. Separately, Illinois Farmers also sought a

declaration from the district court regarding “coverage” (i.e., which of the policy’s

endorsements applied) and asserted several breach of contract claims. 

After briefing and oral argument, the district court granted (in a series of orders)

Alpine Glass’s motion to consolidate its claims in a single No-Fault Act arbitration,
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dismissed (or denied) the majority of Illinois Farmers’ legal contentions and “entered

judgment.” The district court did not address, however, the endorsement issue. This

appeal followed. 

Following briefing and oral argument to this Court, we sua sponte requested

supplemental briefing on whether we properly could exercise jurisdiction either

pursuant to 28 U.S.C. § 1291 or under the collateral order doctrine. See Dieser v.

Cont’l Cas. Co., 440 F.3d 920, 923 (8th Cir. 2005) (“‘[J]urisdiction issues will be

raised sua sponte by a federal court when there is an indication that jurisdiction is

lacking, even if the parties concede the issue.’”) (quoting Thomas v. Basham, 931

F.2d 521, 523 (8th Cir. 1991)). After reviewing the parties’ submissions, we conclude

that we lack jurisdiction.

Under § 1291, the courts of appeals have jurisdiction over “all final decisions

of the district courts of the United States.” A district court’s order is a “final decision”

for the purposes of § 1291 if it “‘ends the litigation on the merits and leaves nothing

more for the [district] court to do but execute the judgment.’” Green Tree Fin. Corp.-

Ala. v. Randolph (“Green Tree”), 531 U.S. 79, 86 (2000) (holding that an order

compelling arbitration and dismissing any remaining claims is a “final decision” under

§ 16(a)(3) of the Federal Arbitration Act) (quoting Catlin v. United States, 324 U.S.

239, 233 (1945)); see also Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863,

867 (1994); Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978). Illinois

Farmers contends that the district court’s orders denying its counterclaims and

requests for declaratory relief and granting Alpine Glass’s motion to compel

consolidated arbitration together constitute a “final decision” because they resolved

all the issues before the district court and left it with nothing to do but execute a

judgment following arbitration. In support of its position, Illinois Farmers relies on

cases arising under the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1, et seq., in

which courts of appeals have consistently held that a district court’s order compelling
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Illinois Farmers does not suggest that the FAA applies in this case. And nor

could it as the parties did not have a written agreement requiring arbitration. See 9

U.S.C. § 4 (“A party aggrieved by the alleged failure, neglect, or refusal of another to

arbitrate under a written agreement for arbitration may petition any United States

district court which, save for such agreement, would have jurisdiction under Title 28,

in a civil action . . . of the subject matter of a suit arising out of the controversy

between the parties, for an order directing that such arbitration proceed in the manner

provided for in such agreement.") (emphasis added).

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arbitration and “dismissing” any remaining claims is a final appealable decision.3

See, e.g., Skirchak v. Dynamics Research Corp., 508 F.3d 49, 55 (1st Cir. 2007)

(holding order compelling arbitration and dismissing claims is final and appealable

under 9 U.S.C. § 16(a)(3)) (citing Green Tree, 531 U.S. at 86); Comedy Club, Inc. v.

Improv West Assoc., 502 F.3d 1100, 1106 (9th Cir. 2007) (same). Even though the

FAA does not apply to Alpine Glass’s arbitration demand, Illinois Farmers contends

these cases are nevertheless apposite because the Supreme Court adopted the wellestablished meaning of “final decision”, as understood with respect to § 1291, in

defining the term for the purposes of the FAA. See Green Tree, 531 U.S. at 86

(“Because the FAA does not define ‘a final decision with respect to an arbitration’ or

otherwise suggest that the ordinary meaning of ‘final decision’ should not apply, we

accord the term its well-established meaning.”) (citing Evans v. United States, 504

U.S. 255, 259-260 (1992)). Thus, Illinois Farmers argues, regardless of the statutory

basis for a party’s arbitration demand, a district court’s order compelling arbitration

and dismissing any remaining claims is a “final decision” immediately appealable

under § 1291. Although Illinois Farmers correctly reads Green Tree and its progeny,

we conclude those cases do not control here.

The critical difference between this case and those Illinois Farmers relies upon

is that the district court will have more to do than simply “execute the judgment”

following the No-Fault arbitration. Under the No-Fault Act, “an arbitrator’s decision

on a legal question is subject to de novo review by the district court.” Gilder v. AutoOwners Ins. Co., 659 N.W.2d 804, 807 (Minn. Ct. App. 2003); see also Weaver v.
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We note that there is no per se requirement under Minnesota’s No-Fault Act

that courts resolve any legal issues before ordering arbitration. See Costello v. Aetna

Cas. & Surety Co., 472 N.W.2d 324, 326 (Minn. 1991) (“Where the coverage dispute

arises on a motion to compel arbitration or to enjoin arbitration, the court ought to

decide the issue in the first instance.”) (emphasis added); Gilder, 659 N.W.2d at 807

(“In other words, when called upon to grant relief, an arbitrator need not refrain from

deciding a question simply because it is a legal question.”) (emphasis added). 

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State Farm Ins. Co., 609 N.W.2d 878, 882 (Minn. 2000) (“To achieve the consistency

desired in interpreting the [N]o-[F]ault [A]ct, this court and the district court review

de novo the arbitrator’s legal determinations necessary to granting relief.”) (citing

Neal v. State Farm Mut. Ins. Co., 529 N.W.2d 330, 331 (Minn. 1995)). And so, the

district court will not only have to confirm (or vacate, or modify) any arbitral award,

but it will also have to review the arbitrator’s legal determinations de novo.

In this case, for example, the district court failed to resolve a key legal

contention - which of Illinois Farmers’ policy’s endorsements applied - before

compelling arbitration. See, e.g., Ill. Farmers Ins. Co. v. Glass Serv. Co., 683 N.W.2d

792, 799 (Minn. 2004) (“The interpretation of contractual language is an issue of law

for the court to decide.”) (citing Denelsbeck v. Wells Fargo & Co., 666 N.W.2d 339,

346 (Minn. 2003)).4

 Thus, after the arbitration concludes, if either party (or both)

disagree with the arbitrator’s decision with respect to this issue, it (or they) can obtain

de novo review from the district court. Indeed, the district court must review de novo

not only pure questions of law but the arbitrator’s application of the law to the facts.

See Gilder, 659 N.W.2d at 807. Because the parties’ liabilities may be affected by the

district court’s de novo review of the arbitrator’s legal determinations, we conclude

that an order compelling mandatory arbitration under the No-Fault Act does not “end[]

the litigation on the merits and leave[] nothing for the court to do but execute the

judgment.” Cunningham v. Hamilton County, 527 U.S. 198, 204 (1999) (emphasis

added) (citations omitted); see also Maristuen v. Nat’l States Ins. Co., 57 F.3d 673,

678 (8th Cir. 1995) (“A judgment awarding damages but not deciding the amount of
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the damages or finding liability but not fixing the extent of the liability [are] not . . .

final decision[s] within the meaning of § 1291.”) (emphasis added). In short, the

district court could not have entered a final judgment in light of its mandatory

obligation under Minnesota law to review the arbitrator's legal conclusions de novo.

We are, of course, aware of the Supreme Court’s observation that the possibility

of bringing a “separate proceeding [under §§ 9, 10 or 11 of the FAA] in a district

court to enter judgment on an arbitration award once it is made (or to vacate or modify

it) . . . does not vitiate the finality of [a] [d]istrict [c]ourt’s” order compelling

arbitration and dismissing the claims before it. Green Tree, 531 U.S. at 86 (emphasis

added). The type and degree of “judicial review” available to parties under the FAA

differs materially, however, from that which the district court must conduct following

the No-Fault arbitration in this case. Under the FAA, a district court may “modify or

vacate” an arbitration award on grounds principally relating to egregious conduct by

the arbitrator but unrelated to the merits. See Hall Street Assoc. v. Mattel, Inc., 128

S. Ct. 1396, 1404-05 (2008) (“To begin with, even if we assumed §§ 10 and 11 could

be supplemented to some extent, it would stretch basic interpretive principles to

expand the stated grounds to the point of evidentiary and legal review generally.

Sections 10 and 11, after all, address egregious departures from the parties’ agreedupon arbitration . . . ; the only ground with any softer focus is ‘imperfect[ions],’ and

a court may correct those only if they go to ‘[a] matter of form not affecting the

merits.’ Given this emphasis on extreme arbitral conduct . . . then surely a statute

with no textual hook for expansion cannot authorize contracting parties to supplement

review for specific instances of outrageous conduct with review for just any legal

error.”) (emphasis added, alterations in original). 

As such, the FAA, unlike Minnesota’s approach to No-Fault arbitration,

severely cabins a district court’s authority to “modify or vacate” an arbitration award.

We therefore understand Green Tree to hold that subsequent intervention by the

district court that has no bearing on the merits does not affect the finality of its order
5

We recognize that our analysis of the finality of the district court’s order

compelling arbitration depends largely on the fact that Minnesota law requires district

courts to review de novo a No-Fault arbitrator’s legal determinations. Our decision

nevertheless reflects an interpretation of § 1291. We are not considering whether such

orders would or would not be immediately appealable under Minnesota law. See

Budinich v. Becton Dickinson & Co., 486 U.S. 196, 198-99 (1988) (holding in

diversity cases, federal – not state – law controls construing whether an order is a

“final decision” for appealability purposes under § 1291). Rather, our discussion

focuses on whether the district court’s decision compelling arbitration in this case

ended the litigation on the merits. That determination cannot be made without

reference to Minnesota law. Moreover, it should come as no surprise that procedural

niceties can affect the appealability of an order compelling arbitration. Under the

FAA, for example, the appealability of such orders turns directly on whether a district

court “dismisses” or “stays” the litigation. Only in the former case is an order

compelling arbitration immediately appealable. See Green Tree, 531 U.S. at 86 n.2.

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compelling arbitration and dismissing any remaining claims. That is not the case here,

however. As we emphasized above, the district court will review de novo the

arbitrator’s legal determinations, and that review necessarily touches upon the merits.5

We understand Illinois Farmers’ desire to have this Court decide the merits of

its appeal. It contends that the district court erred by holding that Alpine Glass had

standing to proceed to arbitration. If the district court erred in this regard, Illinois

Farmers would likely avoid an unnecessary arbitration proceeding. But if the flip

were true – and the district court ruled correctly (we express no view on the merits)

– then this appeal did little but delay the inevitable. And no doubt, following

arbitration and de novo review by the district court, we would again see these parties

on appeal. In short, we can never be confident that permitting an appeal from an order

compelling arbitration (and dismissing any remaining claims) would conserve judicial

resources. Indeed, such a practice might encourage piecemeal appeals – a practice we

must be careful to discourage “because [of] the strong bias of § 1291 against [such]

appeals.” Digital Equip. Corp., 511 U.S. at 872; see also Will v. Hallock, 546 U.S.

345, 349-50 (2006).
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The district court’s decision is also not appealable under the collateral order

doctrine. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)

(holding that a small class of decisions are immediately appealable even though the

decision did not terminate the litigation before the district court). A district court’s

decision is immediately appealable as a collateral order if it: (1) conclusively

determines a disputed issue; (2) which is an important issue completely separate from

the merits; and (3) is effectively unreviewable on appeal from a final judgment. Digital

Equip. Corp., 511 U.S. at 867; Coopers & Lybrand, 437 U.S. at 468; Kassuelke v.

Alliant Techsystems, Inc., 223 F.3d 929, 931 (8th Cir. 2000). As a narrow exception

to the general rule that a single appeal, taken after the entry of a final judgment,

provides a party with a sufficient opportunity to complain of all of the district court’s

errors, the Supreme Court has described the conditions for satisfying the collateral

order doctrine as stringent. See Will, 546 U.S. at 349-50; Digital Equip. Corp., 511

U.S. at 868. Accordingly, “the chance that the litigation at hand might be speeded, or

a ‘particular injustice’ averted by a prompt appellate decision” are, standing alone,

insufficient reasons for classifying a district court’s decision as an appealable

collateral order. Id. (internal citation omitted).

Although the district court conclusively decided each of the issues raised by

Illinois Farmers’ appeal, we need not decide whether any are “important” because

none are “effectively unreviewable” on appeal from a final judgment. Id. at 869. To

satisfy this condition, a party, at a minimum must demonstrate that the interest it seeks

to vindicate immediately would be “irretrievably lost” if it had to wait to appeal until

after a final judgment. See id. at 872 (“[A]nd so the mere identification of some

interest that would be ‘irretrievably lost’ has never sufficed to meet the third Cohen

requirement.”) (citing Lauro Lines s.r.l. v. Chasser, 490 U.S. 495, 499 (1989)). 

Illinois Farmers doesn’t contend, however, that any of the issues it raises would

be “irretrievably lost” if forced to wait to appeal after the entry of a final judgment.
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And nor could it. Each of the issues raised by its appeal: (1) whether Alpine Glass

has standing to assert the short-pay claims; (2) whether Minnesota’s anti-incentive

statute proscribes Alpine Glass’s practice of receiving assignments in exchange for

performing glass repair services; and (3) whether the district court erred by dismissing

Illinois Farmers’ requests for declaratory relief and breach of contract claim are issues

of law that this Court can review de novo following a judgment on the merits. Thus,

the district court’s orders are not appealable under the collateral order doctrine. 

For the foregoing reasons, we dismiss the appeal for want of jurisdiction.

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