(dissenting).
I would reverse the court of appeals and find that the plaintiff is not barred by collateral estoppel from trying his action in the district court.
In Johnson v. Consolidated Freightways, Inc., 420 N.W.2d 608, 613 (Minn.1988), we declined to determine whether, as a matter of law, collateral estoppel applies to an issue determined in insurance arbitra*655tion. We did, however, determine that, even if the doctrine did apply, the facts in Johnson did not warrant estoppel. Id. at 613. We noted: “[Njeither collateral estop-pel nor res judicata is rigidly applied. * * * As a flexible doctrine, the focus is .on whether its application would work an injustice on the party against whom estoppel is urged.” Id. at 613-14.
Such an injustice is present here'. Even if the parties to the arbitration waived a later trial, why should such waiver benefit third parties who were not parties to the original arbitration? Insurance carriers could abuse the ruling of the court in this case by placing mandatory arbitration clauses in insurance policies. If such clauses become standard, they could effectively deny the constitutional right to trial by jury: Plaintiffs would lose the option to litigate first and, therefore, the doctrine of collateral estoppel would preclude plaintiffs from presenting to a jury issues decided in arbitration. Although neither of the parties raised the issue of a potential denial of the right to a jury trial, we must bear it in mind in future cases.
Moreover, the majority allows arbitrated issues to have collateral estoppel effect in later litigation even though previously litigated issues do not have collateral estoppel effect in a later arbitration according to Milwaukee Mutual Ins. Co. v. Currier, 310 Minn. 81, 245 N.W.2d 248 (1976). As a practical consequence of this holding, plaintiffs who expect an unfavorable arbitration finding will maneuver to set trial before arbitration. That certainly would not save the court’s time or the parties’ money and, indeed, would defeat the very purpose of arbitration to serve as an alternative to litigation. Further, it seems basically unfair where, in a situation as here, the court trial, for some reason, is delayed until after the arbitration date, thus forcing plaintiffs to manuever to postpone the arbitration in order to avoid waiving their right to a jury trial on the issue of damages.
For all of these reasons, I would reverse the court of appeals.