This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-99-35

State Farm Insurance Company,

Appellant,

vs.

Daniel Fiedler,

Respondent.

Filed July 6, 1999

Reversed

Norton, Judge[*]

Scott County District Court

File No. C9-88-484

William M. Hart, R. Gregory Stephens, Jenneane L. Jansen, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for appellant)

Mark A. Karney, Karney & Theiler, Hennepin Square Building, Suite 420, 2021 East Hennepin Avenue, Minneapolis, MN 55413 (for respondent)

Considered and decided by Toussaint, Chief Judge, Willis, Judge, and Norton, Judge.

U N P U B L I S H E D O P I N I O N

NORTON, Judge

Appellant challenges the confirmation of an arbitrator's award as ex parte. We conclude that an ex parte confirmation is not permissible and reverse.

FACTS

Respondent-insured Daniel Fiedler was injured in an automobile accident on February 19, 1995, and petitioned for no-fault benefits for retraining. The arbitrator awarded him $10,000. Appellant State Farm moved to vacate the award pursuant to Minn. Stat. § 572.19, subd. 1(3) (1998) (arbitrator exceeded powers). This motion was denied. After the 90 days allowed by Minn. Stat. § 572.19, subd. 2 (1998), for motions vacating an award had passed, respondent applied ex parte for a confirmation of the arbitrator's award under Minn. Stat. § 572.19, subd. 4 (1998) (court shall confirm award when motion to vacate is denied). The district court granted respondent's motion, and State Farm appealed.

D E C I S I O N

State Farm argues that respondent's motion for confirmation of the award was ex parte and in violation of Minn. R. Civ. P. 5.01, which provides that all written motions shall be served upon each of the parties, and Minn. Stat. § 572.23 (1998), which provides that an "application" under this chapter shall be by and heard as a motion.

Respondent answers that he sought confirmation pursuant to Minn. Stat. § 572.19, subd. 4, which requires only that, "[i]f the application to vacate is denied and no motion to modify or correct the award is pending, the court shall confirm the award."

We conclude that appellant is correct. Minn. Stat. § 572.18 (1998) requires that "[u]pon application of a party, the court shall confirm an award * * * ." It does not provide an exception where a court has refused to vacate an award under Minn. Stat. § 572.19, subd. 4. And Minn. Stat. § 572.23 requires that such an application shall be "by motion and shall be heard in the manner * * * for the making and hearing of motions." It too allows no exceptions where Minn. Stat. § 572.19, subd. 4, is concerned, and the word "shall" indicates the act to be performed is mandatory. Minn. Stat. § 645.44, subd. 16 (1998). Furthermore, Minn. R. Civ. P. 5.01 requires that every written motion be served on all parties.

There is no exception that would allow an ex parte confirmation of an arbitrator's award, and we must give effect to Minn. Stat. § 572.23. See Minn. Stat. § 645.16 (1998) ("Every law shall be construed, if possible, to give effect to all its provisions."). We conclude that respondent should not have applied ex parte for confirmation of the arbitrator's award, and we reverse. Because we determine that the initial issue of whether the confirmation ex parte was improper, we do not address the validity of the arbitrator's award or the district court's decision not to vacate it.

Reversed.

[*] Retired judge of the Minnesota Court of Appeals, serving by apointment pursuant to Minn. Const. art. VI, § 10.