McPherson v. Walgreens Boot Alliance
993 N.W.2d 679
Neb.2023Background
- Walgreens contracted with Ferrandino (NY company) for facility maintenance; Ferrandino subcontracted snow/ice removal and landscaping at Omaha stores to Patera (Nebraska LLC).
- Subcontract required Patera to defend/indemnify Ferrandino and its customers and contained an arbitration clause specifying AAA in Philadelphia and that arbitration would be governed by the FAA and Pennsylvania law.
- McPherson sued Patera, Ferrandino, and Walgreens for slip-and-fall injuries in Nebraska state court; Ferrandino cross-claimed against Patera for indemnity/contribution.
- Ferrandino demanded arbitration under the subcontract after Patera refused tendered defense; Patera moved in district court to stay arbitration under Nebraska’s UAA (§25-2603), arguing the clause was unenforceable and governed by the UAA.
- The district court granted a stay as "premature" (no liability yet), without resolving whether FAA or UAA applied; Ferrandino appealed.
- The Nebraska Supreme Court held FAA governs the subcontract’s arbitration clause but dismissed Ferrandino’s interlocutory appeal for lack of appellate jurisdiction because §25-1315 certification was not made; §25-2620(a)(2) did not apply and applying §25-1315 does not undermine FAA policy.
Issues
| Issue | Ferrandino's Argument | Patera's Argument | Held |
|---|---|---|---|
| Whether FAA or Neb. UAA governs the subcontract’s arbitration clause | FAA governs: interstate contract, clause references FAA | UAA governs: services are local Nebraska work | FAA governs because contract between parties of different states evidences interstate commerce |
| Whether the district court’s stay of arbitration is immediately appealable under Nebraska law (§25-1902/§25-1315) | Order is appealable under §25-2620(a)(2) or §25-1902; alternatively under 9 U.S.C. §16 | No Nebraska statute authorizes interlocutory appeal; Shasta Linen Supply controls | Not appealable: §25-1315 applies and no express certification was made, so no immediate appeal |
| Whether §25-2620(a)(2) (UAA) authorizes this interlocutory appeal | §25-2620(a)(2) authorizes appeals from stays under §25-2603(b) | The district court stayed arbitration as premature, not for lack of agreement; §25-2620(a)(2) doesn’t apply | §25-2620(a)(2) inapplicable because the stay was prematurity-based, not a §25-2603(b) "no agreement" ruling |
| Whether FAA’s appeal provision (9 U.S.C. §16) preempts state procedural limits on appeal timing | FAA §16 permits interlocutory appeal and controls | State procedures govern timing; FAA doesn’t preempt state appellate rules | FAA would permit an appeal, but requiring §25-1315 certification only affects timing and does not undermine FAA policy; state rule controls timing here |
Key Cases Cited
- Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265 (U.S. 1995) (broad construction of "involving commerce" under the FAA)
- Webb v. American Employers Group, 268 Neb. 473 (Neb. 2004) (framework for FAA vs. UAA and applying state finality rules before FAA policy analysis)
- Aramark Uniform & Career Apparel v. Hunan, Inc., 276 Neb. 700 (Neb. 2008) (contracts between parties in different states implicated interstate commerce)
- Shasta Linen Supply v. Applied Underwriters, 290 Neb. 640 (Neb. 2015) (temporary stay of arbitration not a final order under §25-1902)
- Kremer v. Rural Community Ins. Co., 280 Neb. 591 (Neb. 2010) (state procedural rules may allow interlocutory appeal without undermining FAA objectives)
- Mann v. Mann, 312 Neb. 275 (Neb. 2022) (§25-1315 certification required when multiple claims/parties and certification absent, order is not appealable)