Tuesday, July 03, 2007, 9:54 PM

COA Splits On Appealability Of Interlocutory Order Granting Provisional Relief Pending Arbitration

Today in Scottish Re Life Corp. v. Transamerica Occidential Life Ins. Co., the COA split on the appealability of a trial court order granting provisional relief, which was granted in connection with an order compelling arbitration pursuant to NC's Revised Uniform Arbitration Act (RUAA).

In state court, interlocutory orders granting provisional relief (e.g., preliminary injunctions) generally are not appealable (unlike in the federal system, where by statute an order granting or denying a preliminary injunction is appealable, see 28 U.S.C. 1291(a)(1)). But today the COA majority allowed an appeal from an order granting provisional relief. The stated reasons: the trial court impinged appellant's right to sue and control a large amount of money ($30M); and there would be lengthy delays preceding arbitration. Judge Wynn concurred on the ground that dismissing the appeal as interlocutory would effectively render the matter moot, since the trial court's provisional remedy would last only until the arbitration panel is convened.

Judge Geer wrote a separate opinion disagreeing that the provisional relief order was immediately appealable. She voted to dismiss the appeal. She explained that an appeal of the provisional relief order could be deferred until the conclusion of the arbitration proceedings. And she added that if appellant obtains a favorable arbitration award, it can then seek recover on the $250k bond and recover damages that wouldn't have occurred but for the preliminary injunction. Thus, she concluded, there was no basis to exercise jurisdiction over the appeal.

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