concurring in result.
The court pronounces today that a fire insurance policy’s statutorily mandated damage-assessment procedure, referred to *886in the policy as an “appraisal” 1 — by which a court-appointed umpire determines the amount of actual cash value of a fire loss— binds the party invoking the appraisal procedure (the Insurer in this case) but does not bind the nondemanding party (the Insured in this case). Today’s opinion reasons that the fire loss assessment procedure violates the Insured’s fundamental-law right to a jury trial guaranteed by Art. 2, § 19, Okl. Const.2
While I join in the result reached by the court, I must recede from its pronouncement. Today’s opinion resolves fundamental-law issues that are unnecessary for the answer sought and formulates a constitutional-law norm broader than that which is required.3 I would hold that the Insured’s presubmission dismissal of the state-court case, which occurred before the parties had a full and fair opportunity to litigate the issue for which the Insurer seeks preclu-sive effect — the amount of insured loss— cannot constitute a judicial settlement of fire loss indemnity. My short answer to the certified question would therefore be that the Insured’s presubmission-stage dismissal sans judgment does not qualify for preclusive effect.4
Since the court has seen fit not only to address today the fundamental-law orthodoxy of the loss-appraisal clause, but also to delve into the validity of § 4803(G)’s5 statutory mandate, I write separately to explain that Art. 2, § 19, Okl. Const.,6 standing alone, affords no basis for condemning the Insured’s executory contractual waiver of his constitutional right to a jury trial. Rather, promise-based waivers of constitutional rights are explicitly proscribed by Art. 23, § 8, Okl. Const.7 If *887I. were testing today the constitutional conformity of § 4803(G)’s mandated loss-settling mechanism, I would conclude that the statute offends Art. 5, § 46, Okl. Const.8 In my view § 4803(G) impermissibly singles out those who seek recovery for insured fire loss for a mode of trial different from that accorded other contract-action litigants.9 A similar infirmity could be ascribed to that statute under the standards of the Equal Protection Clause.10
I
ANATOMY OF LITIGATION
The Insured11 purchased from the Insurer a fire insurance policy which contained statutorily mandated appraisal procedures invocable when fire damages the insured property. Under the prescribed procedure, if the parties cannot agree on the amount of indemnity, they are expected, on the written demand of either, to appoint partisan appraisers to determine initially the amount of fire loss. The appraisers must then select an umpire. The court makes the selection if the parties cannot agree on any one. If, after the two partisan appraisals, an agreement cannot be reached on the amount of indemnity, the appraisals are to be submitted to the umpire who makes the loss award.
A fire damaged the Insured’s property. The Insurer invoked the policy’s loss-appraisal process and the parties appointed two independent appraisers. When the loss claim could not be settled, the Insured sought relief in a state-court action. Later, an umpire was appointed by the court. Because the parties could not reconcile the partisan appraisals, the umpire made an award which was awaiting court approval.12 Before the judge could reach for consideration the merits of the umpire’s loss award, the Insured dismissed the state-court action without prejudice. Left pending and undetermined at the termination of the state-court action was (1) the Insured’s motion to reconsider the appointment of umpire and (2) the Insurer’s offer to allow judgment on the umpire’s award. The Insured then refiled his claim in a federal court. He sought not only a determination of the loss amount but also punitive damages for the Insurer’s bad-faith failure to settle the fire loss claim. A jury trial resulted in judgment against the Insurer for $4,390,000 in actual, consequential and punitive damages. The federal court also awarded the Insured attorney’s fees of $376,275, prejudgment interest exceeding $390,000 and costs of $44,766.
On appeal to the United States Court of Appeals for the Tenth Circuit, the Insurer urges only that the state court’s judicially unconfirmed umpire’s award should be accorded preclusive effect. Pursuant to the Uniform Certification of Questions of Law *888Act, 20 O.S. 1981 §§ 1601 et seq., the United States Court of Appeals for the Tenth Circuit certified for our answer the following question:
“Under Oklahoma law, what is the pre-clusive effect of a court-appointed umpire’s damage appraisal under a statutorily-mandated provision of a fire insurance policy, where the insured, as of right, dismisses without prejudice an initial lawsuit without challenging the umpire’s appraisal and, thereafter, institutes a subsequent lawsuit on the same cause of action in another court?”
II
NO PRECLUSIVE EFFECT MAY BE GIVEN TO THE STATE-COURT JUDICIALLY UNCONFIRMED UMPIRE’S AWARD
The Insurer contends that the fire loss amount was finally determined by the umpire’s unapproved loss award. Under the doctrine of collateral estoppel,13 once a court has decided an issue of fact or law necessary to its judgment, the same parties or their privies may not relitigate the issue.14 An indispensable prerequisite for a successful issue preclusion plea is that the party against whom it is invoked must have had full and fair opportunity to litigate the issue.15
Although the loss-appraisal procedure may have been completed in conformity to the insurance policy’s contractual terms, the umpire’s judicially unconfirmed award cannot be viewed — for issue preclusion purposes — as the functional equivalent of adjudged recovery for the Insured’s fire loss.16 The federal-court record before us does not disclose either a state-court judgment or final order that (a) determines the amount of loss or (b) approves the umpire’s loss award. I would hence conclude today that the Insured’s recovery amount was never fully and fairly litigated and the umpire’s unsanctioned award lacks the attributes critical for application of issue preclusion. The state-court action, which had ended in a presub-mission dismissal17 sans judicial settlement of any tendered issue, simply failed “otherwise than upon the merits.” 18 Its ashes will not yield what the Insurer hopes to extract here: preclusion for the *889amount of the umpire’s fire loss award, which would bind the Insured in the later-brought federal-court suit now on appeal.19 At the very time the Insured dismissed his state-court action, pending and undetermined before the judge was his motion to reconsider the umpire’s appointment as well as the Insurer’s offer to allow judgment on the umpire’s award. The motion to reconsider stood as an insuperable barrier to submission.20 Preclusive effect may not be accorded to the umpire’s judicially unconfirmed award.
Ill
ART. 2, § 19, OKL.CONST.,21 UPHOLDS ONE’S RIGHT TO TRIAL BY JURY BUT DOES NOT PROTECT AGAINST EXECUTORY CONTRACTUAL WAIVER OF THAT RIGHT
The umpire’s award may be tested here for its preclusive effect without any inquiry into the fundamental-law validity either of policy appraisal clauses or of § 4803(G)’s statutory mandate. In advance of strict necessity shown by the record, I would not today address any of the constitutional issues settled by the court’s answer to the question before us.22
The court applies Art. 2, § 19, Okl. Const., standing alone, as a vehicle to invalidate not only § 4803(G)’s mandate but also the policy’s appraisal provision. The insurance industry’s long-standing custom of including a loss-appraisal mechanism in fire policies gives this contract clause an existence separate from and independent o/the statutory mandate.23 The clause’s widespread usage long before § 4803(G) was ever enacted into law clothes the appraisal provision with the unmistakable earmarks of a custom of the traded.24 As a judicially sanctioned insurance industry’s *890long-established practice, the loss-appraisal clause cannot be ignored. It is a legitimate offspring of Oklahoma’s common law. The legal norm embodied in § 4803(G) should hence be considered as declaratory of the pre-existing unwritten law.25 It does not facially contravene Art. 2, § 19, Okl. Const.26 The latter section upholds a person’s fundamental right to trial by jury but fails to protect it against executory ■contractual waivers. Were I convinced today that the constitutional issues settled by the court should be reached, I would not rely on § 19 but solely on Art. 23, § 8, Okl. Const., the section that explicitly proscribes promise-based waivers of constitutional rights.27 The policy’s appraisal mechanism, which stands as a substitute “mode of trial” for disputed fire losses, clearly offends § 8.
A loss-appraisal procedure may be viewed as an efficient or desirable method of resolving the amount of a contested fire claim if both parties are agreeable. But because Art. 23, § 8, absolutely interdicts judicial enforcement of executory ex contractu commitments to relinquish constitutional rights that may be available in disputes to arise in futuro, the appraisal clause is infirm.28
IV
SECTION 4803(G)’S MANDATE FOR UMPIRE-AWARDED FIRE LOSS VIOLATES THE ART. 5, § 46, OKL. CONST.,29 PROHIBITION AGAINST SPECIAL LAWS
Remedial provisions of statutory law which apply to fewer than an entire class of similarly situated persons are constitutionally infirm. Art. 5, § 46, Okl. Const.30 Contract litigants comprise but a single class. Section 4803(G) singles out fire indemnity insureds for use of a deciding mechanism different from jury trial. The latter trial mode is afforded by Art. 2, § 19, Okl. Const., to all contract litigants. Were we to countenance § 4803(G)’s mandate for fire loss appraisal as a properly substituted settlement mechanism, a dichotomous division of trial mode would be created — contrary to Art. 5, § 46 — for a single class of contract litigating parties.31 Fire loss claimants would have only the appraisal method for settling the disputed amount of indemnity to be paid, while other contract litigants would continue to enjoy *891jury trials. In short, § 4803(G) plainly violates Art. 5, § )6’s prohibition against special remedial enactments.
V
THE UNITED STATES SUPREME COURT’S EQUAL PROTECTION JURISPRUDENCE
The statute-mandated appraisal procedure will not pass muster under the United States Supreme Court’s equal protection jurisprudence. Section 4803(G) calls for the use of different deciding mechanisms in litigation that falls within a single class.32 Although states are free to enlarge the basic freedoms guaranteed by the federal constitution, they may not create artificial boundaries for damage claimants who are similarly situated.33 To meet equal protection standards, all who litigate their claims need not receive identical treatment, but the distinctive features of a classification must have some relevance to the purpose for which it has been created.34
The avowed purpose of mandatory loss appraisals is quick and practical resolution of disputed fire loss claims. Because the very same goals are also applicable to other contract and insurance indemnity disputes, I find no rational connection between the distinction and the classification’s purpose.35
SUMMARY
For my answer today I would simply hold that, in the scenario tendered by the certified question and the accompanying record, the court-appointed umpire’s judicially unapproved award36 in the earlier state-court action does not have pre-clusive effect on any phase of the later federal-court litigation.
.The terms of 36 O.S.1981 § 4803(B) provide in part:
"B. No policy or contract of fire insurance shall be made, issued or delivered by any insurer or by any agent or representative thereof, on any property in the state, unless it shall conform as to all provisions, stipulations, agreements and conditions, with such form of policy. * * * ” (Emphasis added.)
The terms of 36 O.S.1981 § 4803(G) provide in part:
"The form of the standard fire insurance policy (with permission to substitute for the word ‘company’ a more accurate descriptive term for the type of insurer) shall be as follows:
⅛ ⅛ * * * *
Appraisal. In case the insured and this Company shall fail to agree as to the actual cash value or the amount of loss, then, on the written demand of either, each shall select a competent and disinterested appraiser and notify the other of the appraiser selected within twenty days of such demand. The appraisers shall first select a competent and disinterested umpire; and failing for fifteen days to agree upon such umpire, then, on request of the insured or this Company, such umpire shall be selected by a judge of a court of record in the state in which the property covered is located. The appraisers shall then appraise the loss, stating separately actual cash value and loss to each item, and, failing to agree, shall submit their differences, only, to the umpire. An award in writing, so itemized, of any two when filed with this Company shall determine the amount of actual cash value and loss. Each appraiser shall be paid by the party selecting him and the expenses of appraisal and umpire shall be paid by the parties equally. * * * ” (Emphasis added.) Section 4803, which was first enacted in 1957, was amended November 1, 1985 and November 1, 1989. The 1985 and 1989 amendments do not affect my analysis. References throughout this opinion are to the law in effect when the cause of action arose.
. The terms of Art. 2, § 19, Okl.Const., provide in pertinent part:
"The right of trial by jury shall be and remain inviolate....”
. See State ex rel. Okl. Bar Ass'n. v. Lobaugh, Okl., 781 P.2d 806, 813 (Okl.1988) (Opala, J., dissenting).
. Issue preclusion and collateral estoppel are two different names for the same legal doctrine. Restatement of Judgments (Second) § 27, Comment (b); Underside v. Lathrop, Okl., 645 P.2d 514, 517 n. 8 (1982); Veiser v. Armstrong, Okl., 688 P.2d 796, 799 n. 7 (1984). See infra Part II for a detailed discussion of issue preclusion. The principle does not apply when the party against whom the prior decision is interposed did not have a "full and fair" opportunity to litigate the issue to be precluded as a result of the earlier case. Allen v. McCurry, 449 U.S. 90, 95, 101 S.Ct. 411, 414-415, 66 L.Ed.2d 308 (1980); Underside, supra at 516-517; Veiser, supra at 800.
. For the terms of 36 O.S.1981 § 4803(G) see supra note 1.
. For the pertinent terms of Art. 2, § 19, Okl. Const., see supra note 2.
. The terms of Art. 23, § 8, Okl.Const., provide:
*887"Any provision of a contract, express or implied, made by any person, by which any of the benefits of this Constitution is sought to be waived, shall be null and void." (Emphasis mine.)
See infra Part III for a detailed explanation of why Art. 23, § 8, rather than Art. 2, § 19, should be invoked to invalidate the contract’s appraisal clause.
. The pertinent terms of Art. 5, § 46, Okl.Const., provide:
"The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing:
******
Regulating the practice ... in judicial proceedings or inquiry before the courts ... or other tribunals_" (Emphasis mine.)
. Art. 5, § 46, Okl.Const., see supra note 8. This constitutional provision condemns as offending “'special” legislation all enactments that prescribe disparate procedure for a single and indivisible litigation class. See also Reynolds v. Porter, Okl., 760 P.2d 816, 823 (1988); Maule v. Independent School Dist. No. 9, Okl., 714 P.2d 198, 203-204 (1986).
. U.S. Const., Amend. 14, § 1 provides in part:
“ * * * nor shall any State ... deny to any person within its jurisdiction the equal protection of the laws. * * *”
See infra Part V for a detailed discussion of the United States Supreme Court’s equal protection jurisprudence.
. To those whose property was insured by the policy I refer collectively as "the Insured” and use the masculine pronoun “he”.
. The Insured’s appraiser set the loss at $113,-000; the Insurer’s appraiser at $49,000. The umpire’s judicially unconfirmed fire loss award was $49,146.
. See supra note 4.
. Allen v. McCurry, supra note 4, 449 U.S. at 95, 101 S.Ct. at 414-415; Veiser v. Armstrong, supra note 4 at 799-800 n. 7; see also Underside v. Lathrop, supra note 4; Benham v. Plotner, Okl., 795 P.2d 510, 512 (1990).
. When an issue of law or fact is finally decided in an action after a full and fair inquiry by a court of competent jurisdiction, the same question cannot thereafter be revisited and decided differently in another subsequent and different suit or proceeding. Veiser v. Armstrong, supra note 4 at 800.
. For amounts of the two appraisals and the umpire’s fire loss award, see supra note 12.
. The law’s only condition on the Insured’s right to dismiss the state-court action without prejudice was that the dismissal come before final submission of the case to the jury or to the court. 12 O.S.1991 § 683.
The pertinent terms of 12 O.S.1991 § 683 provide:
An action may be dismissed, without prejudice to a future action: First, By the plaintiff, before the final submission of the case to the jury, or to the court, where the trial is by the court. * * * "
Under § 683, “final submission” occurs after law and facts are fully and fairly litigated. In a case tried to the court, where the evidentiary process has been concluded and time given to counsel for future argument or future filing of briefs, the cause is not finally submitted and the plaintiff may dismiss without prejudice. Firestone Tire & Rubber Co. v. Barnett, Okl., 475 P.2d 167, 170 (1970), quoting Tiffany v. Tiffany, 200 Okl. 670, 199 P.2d 606 (syllabus 1) (1948).
.The Insured’s voluntary dismissal without prejudice of his state-court action before it had gone to submission is but a "failure of the action otherwise than on the merits” under 12 O.S.1991 § 100. The terms of 12 O.S.1991 § 100, variously called the "savings," "recommencement-of-action” or "renewal” statute, provide:
"If any action is commenced within due time, and a judgment thereon for the plaintiff is reversed, or if the plaintiff fail in such action otherwise than upon the merits, the plaintiff, or, if he should die, and the cause of action survive, his representatives may commence a new action within one (1) year after the reversal or failure although the time limit for commencing the action shall have expired before the new action is filed.” (Emphasis mine.)
. Insurer's argument presents an intermixture of selective strands drawn from issue preclusion and judicial estoppel concepts. Neither of these two theories, which Insurer seems to advance as an integrated legal doctrine, will avail here. Issue preclusion is uninvocable without some antecedent adjudication and a full and fair opportunity to litigate, Allen v. McCurry, supra note 4, Underside v. Lathrop, supra note 4. Judicial estoppel, which prevents a party who knowingly assumed a given position from taking an inconsistent stand in the course of the same judicial proceeding, Messler v. Simmons Gun Specialties, Inc., Okl., 687 P.2d 121, 128 (1984), is equally unavailable. The latter doctrine’s application came to be more fully elucidated in Panama Processes v. Cities Service Co., . Okl., 796 P.2d 276, 286 (1990), where we stated that it does not prevent a party from asserting a legal theory contrary to one advanced earlier in the litigation. The mechanism we are to declare in this case as legally proper for settling the amount of Insured’s fire loss is a matter of law, not a fact that could bind the Insured by judicial estoppel. Panama, supra at 286.
. See Firestone Tire & Rubber Co. v. Barnett, supra note 17; Tiffany v. Tiffany, supra note 17.
. For the pertinent terms of Art. 2, § 19, Okl. Const., see supra note 2.
. The prudential rule of strict necessity, adhered to by all state and federal courts, holds that constitutional issues must not be resolved in advance of strict necessity. I.N.S. v. Chadha, 462 U.S. 919, 937, 103 S.Ct. 2764, 2776, 77 L.Ed.2d 317 (1983); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring); In Re Initiative Petition No. 347 State Question No. 639, Okl., 813 P.2d 1019, 1037 (1991) (Opala, C.J., concurring); Smith v. Westinghouse Elec. Corp., Okl., 732 P.2d 466, 467 n. 3 (1987); Schwartz v. Diehl, Okl., 568 P.2d 280, 283 (1977); Dablemont v. State, Department of Public Safety, Okl., 543 P.2d 563, 564-565 (1975); see also In re Initiative Petition No. 348, Okl., 820 P.2d 772, 781, 782 n. 4 (1991) (Opala, C.J., concurring in result); Johnson v. Walters, Okl., 819 P.2d 694, 708, 712 n. 26 (1991) (Opala, C.J., concurring in part and dissenting in part); State ex rel. Okl. Bar Ass’n. v. Lobaugh, supra note 3; In Re Initiative Petition No. 341, Okl., 796 P.2d 267, 275 (1990) (Opala, V.C.J., concurring in result).
The question certified to us does not call for constitutional testing. We are asked to give our answer to but one question: whether the umpire’s loss award may be accorded preclusive effect. See the end of Part I for the complete text of the certified question.
. The long-standing history of appraisal clauses can be traced to the time of our statehood. See Home Ins. Co. of New York v. Ballard, 32 Okl. 723, 124 P. 316 (1912); Rochester German Ins. Co. of Rochester, N.Y. v. Rodenhouse, 36 Okl. 378, 128 P. 508 (1912).
. For a definition of "usage of trade” see 25 O.S.1991 § 19; its pertinent terms are:
"Usage is a reasonable and lawful public custom concerning transactions of the same nature as those which are to be affected thereby, existing at the place where the obligation is to be performed, and either known to the parties, or so well established, general and uni*890form, that they must be presumed to have acted with reference thereto."
See also 12A O.S.1991 § 1-205(2); its terms are;
“(2) A usage of trade is any practice or method of dealing having such regularity of observance in a place, vocation or trade as to justify an expectation that it will be observed with respect to the transaction in question. The existence and scope of such a usage are to be proved as facts. If it is established that such a usage is embodied in a written trade code or similar writing the interpretation of the writing is for the court.”
.A usage is a practice or method regularly observed. Hull v. Sun Refining and Marketing Co., Okl., 789 P.2d 1272, 1278 (1990); see also Braden Winch Co. v. Surface Equipment Co., 196 Okl. 444, 165 P.2d 640, 643 (1946). A declaratory statute is expressive of pre-existing common law. In re Ungaro's Will, 88 N.J.Eq. 25, 102 A. 244, 246 (1917); Nelson v. Sandkamp, 227 Minn. 177, 34 N.W.2d 640, 642 (1948).
Unabrogated common law stands side by side with its legislative modification. Waggoner v. Town and Country Mobile Homes, Inc., Okl., 808 P.2d 649, 655 (1991) (Opala, V.C.J., concurring in part and dissenting in part); State Mut. Life Assur. Co. of Amer. v. Hampton, Okl., 696 P.2d 1027, 1031-1032 (1985); Hood v. Hagler, Okl., 606 P.2d 548, 552-553 (1980).
. Although Art. 2, § 19, Okl.Const., supra note 2, may be invoked to trump government-erected barriers to the constitutional guaranty of trial by jury, its reach does not extend to executory contractual waivers.
. For the terms of Art. 23, § 8, Okl.Const., see supra note 7.
. Raines v. Independent School Dist. No. 6, Okl., 796 P.2d 303, 304-305 (1990) (Opala, V.C.J., concurring); Dean Witter Reynolds, Inc. v. Shear, Okl., 796 P.2d 296, 298 (1990); Long v. DeGeer, Okl., 753 P.2d 1327, 1330 (1988) (Opala, J., concurring).
. For the pertinent terms of Art. 5, § 46, Okl. Const., see supra note 8.
. For the pertinent terms of Art. 5, § 46, Okl. Const., see supra note 8. See also Reynolds v. Porter, supra note 9; Board of County Com’rs. v. Muskogee, Okl., 820 P.2d 797, 806 (1991); Maule v. Indep. School Dist. No. 9, supra note 9.
. Reynolds v. Porter, supra note 9.
. Baxstrom v. Herold, 383 U.S. 107, 111, 86 S.Ct. 760, 762-763, 15 L.Ed.2d 620 (1966); Humphrey v. Cady, 405 U.S. 504, 508-512, 92 S.Ct. 1048, 1051-1054, 31 L.Ed.2d 394 (1972); Cascio v. State Dept. of Pub. Safety, Okl., 686 P.2d 282, 284 (1984).
. Baxstrom v. Herold, supra note 32, 383 U.S. at 111, 86 S.Ct. at 763; Humphrey v. Cady, supra note 32, 405 U.S. at 512, 92 S.Ct. at 1053; Cascio v. State Dept. of Pub. Safety, supra note 32.
. Baxstrom v. Herold, supra note 32; Humphrey v. Cady, supra note 32; Wilson v. Foster, Okl., 595 P.2d 1329, 1332 (1979); see also Cascio v. State Dept. of Pub. Safety, supra note 32.
. U.S. Const., Amend. 14, § 1, supra note 10. The Oklahoma Constitution does not include an equal protection clause similar to that found in its federal counterpart, but this court has identified a functional equivalent of that clause in the anti-discrimination component of our state constitution’s due process section. Art. 2, § 7, Okl. Const. See Fair Sch. Finance Coun. of Okta. v. State, Okl., 746 P.2d 1135, 1148 n. 48 (1987).
The terms of Art. 2, § 7, Okl.Const., provide:
“No person shall be deprived of life, liberty, or property, without due process of law.”
.See, e.g., Astoria Federal Sav. & Loan Ass’n v. Solimino,—U.S.-, 111 S.Ct. 2166, 2169-2171, 115 L.Ed.2d 96 (1991), where the Court noticed that Congress "is understood to legislate against a background of common-law adjudicatory principles,” which include the rules of preclusion, but nonetheless held judicially unre-viewed state administrative findings to be without preclusive effect on age-discrimination proceedings in federal court, because raising the bar of preclusion would be inconsistent with Congress’ intent in enacting the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. Were we today to conclude that preclusive effect could be given in this case to a judicially unapproved umpire’s award, our holding would be inconsistent with the unequivocal text of and jurisprudence construing 12 O.S.1991 § 100. That section requires the presubmission dismissal like that of the plaintiffs here to he treated as a disposition "otherwise than on the merits.”