Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 79-2443 -- Thomas R. McMillen, Judge.
Before Cummings, Chief Judge, and Pell and Sprecher, Circuit Judges.
The issue in this case is whether this Court has jurisdiction to review a district court's conflict of laws determination, embodied in an order denying a motion for summary judgment, which has the effect of denying appellant's asserted immunity from suit.
Plaintiff Larry Freeman, a resident of Georgia, sued Kohl & Vick Machine Works, Inc., an Illinois corporation, in the federal district court for the Northern District of Illinois. Plaintiff sued for injuries sustained at the place of business of his employer in Macon, Georgia, while operating a machine which plaintiff alleges the defendant negligently designed, manufactured, sold and distributed.*fn1 Defendant filed a third-party complaint naming Keebler Co., the plaintiff's employer, whose principal office is in Illinois, as a third-party defendant. The third-party complaint seeks indemnity from the third-party defendant for any sums that the original defendant might be held liable to pay the original plaintiffs.
The third-party defendant moved for summary judgment on the ground that Georgia law governs the third-party complaint and under the Georgia Worker's Compensation Statute, Georgia Code Section 114-103, the third-party plaintiff is precluded from bringing any action for indemnity against it, since it is paying the original plaintiff worker's compensation benefits.*fn2
The district court concluded that the law of Illinois applies and therefore it denied the motion for summary judgment, ordered Keebler Co. to answer the third-party complaint, and ordered the completion of discovery. This appeal followed.*fn3
Pursuant to 28 U.S.C. § 1291, the courts of appeals are vested with "jurisdiction of appeals from all final decisions of the district courts ... except where a direct review may be had in the Supreme Court." This language has consistently been interpreted to indicate that the courts of appeals would ordinarily exercise jurisdiction only when there has been "a decision by the District Court that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.' "*fn4 Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S. Ct. 2454, 2457, 57 L. Ed. 2d 351 (1978), quoting Catlin v. United States, 324 U.S. 229, 233, 65 S. Ct. 631, 633, 89 L. Ed. 911 (1945).
However, pursuant to section 1291, it is recognized that there are "collateral orders" that have aspects of finality and are appealable even though they do not end the main litigation. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949). To qualify as such a collateral order the order must conclusively determine claims of right, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment. Coopers & Lybrand v. Livesay, 437 U.S. at 468, 98 S. Ct. at 2457; Firestone Tire & Rubber Co. v. Risjord, 449 U.S. at 375, 101 S. Ct. at 674. See Abney v. United States, 431 U.S. 651, 658, 97 S. Ct. 2034, 2039, 52 L. Ed. 2d 651 (1977). Because the litigation from which the instant appeal arises has not reached final judgment, the district court's order denying appellant's motion for summary judgment based on a conflict of laws determination is appealable under section 1291 only if it falls within the collateral order doctrine.
Appellant, the third-party defendant, contends that we have jurisdiction to decide this appeal under 28 U.S.C. § 1291 and the collateral order doctrine. Appellant's rationale is that the effect of the district court's denial of its motion for summary judgment was to deny it the benefits of its rights under the Georgia Worker's Compensation Statute, Georgia Code § 114-103, not only to be immune from liability to indemnify but also to the right to an absolute immunity from suit, which, it argues, is an essential corollary to the indemnification immunity.*fn5 Since the district court's order would require it to further defend the action, appellant argues it would thus have irretrievably lost a substantial portion of the Georgia statutory immunity no matter what the final outcome of the trial on the merits was and consequently, the district court's order is appealable under the collateral order doctrine because the district court, in denying its motion for summary judgment, has conclusively determined the disputed question and resolved the important issue completely separate and too independent of the merits of the underlying tort action to require this court to defer its appellate review until the whole case is adjudicated.
After careful review of appellant's arguments we believe that the criteria of the collateral order doctrine have not been satisfied and ...