Concord at the Vineyards Condominium Association, v. Empire Indemnity Insurance Company

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13881
Non-Argument Calendar
____________________
CONCORD AT THE VINEYARDS CONDOMINIUM
ASSOCIATION, INC.,
Plaintiff-Appellee,
versus
EMPIRE INDEMNITY INSURANCE COMPANY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:21-cv-00380-SPC-KCD
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2 Opinion of the Court 22-13881
____________________
Before WILSON, L UCK , and L AGOA , Circuit Judges.
PER CURIAM:
Empire Indemnity Insurance Company appeals the district
court’s order granting Concord at the Vineyards Condominium
Association, Inc.’s, motion to compel appraisal and staying the case
pending the appraisal process. This insurance contract dispute
arises from Concord’s first-party claim for property insurance ben-
efits following Hurricane Irma under an insurance policy (the “Pol-
icy”) issued to Concord for multiple buildings and structures in a
condominium complex it owns in Naples, Florida (the “Property”).
After Empire filed its appeal, we issued a jurisdictional ques-
tion to the parties asking them to address whether we had jurisdic-
tion to review the district court's order compelling appraisal and
staying the case pending completion of the appraisal process.
Then, during briefing in this appeal, this Court decided Posi-
tano Place at Naples I Condominium Association, Inc. v. Empire Indem-
nity Insurance Co., 84 F.4th 1241 (11th Cir. 2023), in which this Court
found that it lacked appellate jurisdiction over an interlocutory or-
der that compelled appraisal and stayed the proceedings pending
appraisal.
As explained below, we conclude that we lack jurisdiction
over the district court's order compelling appraisal and staying the
proceedings pending appraisal for the reasons stated in our decision
in Positano Place. Accordingly, we dismiss this appeal.
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22-13881 Opinion of the Court 3
I. BACKGROUND
We presume that the parties are familiar with the facts of the
case and only discuss those facts necessary for resolution of the ap-
peal. Empire issued the Policy to Concord for coverage of the
Property. The Policy contains the following appraisal provision:
Appraisal
If we and you disagree on the value of the property
or the amount of loss, either may make written de-
mand for an appraisal of the loss. In this event, each
party will select a competent and impartial appraiser.
The two appraisers will select an umpire. If they can-
not agree, either may request that selection be made
by a judge of a court having jurisdiction. The apprais-
ers will state separately the value of the property and
amount of loss. If they fail to agree, they will submit
their differences to the umpire. A decision agreed to
by any two will be binding. Each party will:
a. Pay its chosen appraiser; and
b. Bear the other expenses of the appraisal and
umpire equally.
If there is an appraisal, we will still retain our right to
deny the claim.
In September 2017, Hurricane Irma made landfall in south-
west Florida. Following Hurricane Irma, Concord filed a first-party
claim for property insurance benefits under the Policy the same
month, claiming that the hurricane damaged its Property and that
the damage was covered by the Policy. Empire investigated this
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4 Opinion of the Court 22-13881
loss and estimated the reported loss at $444,518.66 and paid Con-
cord $88,851.97 after applying the Policy’s deductibles. More than
two years later, on September 4, 2020, Concord submitted a quan-
tification of its loss in the amount of $15,398,747.40. According to
Concord, it disagreed with Empire’s evaluation and engaged with
its own consultants to evaluate the loss.
In May 2021, Concord, due to the disagreement between the
parties as to the amount of loss, filed suit against Empire in federal
court, alleging a single breach of contract claim. Empire filed an
answer and affirmative defenses to the complaint, which included
its denial of coverage of any additional damage beyond the
$88,851.97 it had already paid Concord and various coverage de-
fenses.1 Then, in April 2022, Concord moved to compel appraisal
under the Policy’s appraisal provision and stay the proceedings
pending the appraisal process. Empire opposed the motion, and
the motion was referred to a magistrate judge.
The magistrate judge issued an order on August 10, 2022,
granting Concord’s motion to compel appraisal and stay the pro-
ceedings and rejecting all of Empire’s arguments against ordering
appraisal. The magistrate judge ordered the parties to “expedi-
tiously conduct an appraisal,” to file joint status reports every
ninety days, and to notify the court when the appraisal process was
completed.
1 During the underlying proceedings, Empire reinspected the Property, com-
pleting the reinspection on August 2021 and finalizing its report in April 2022.
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22-13881 Opinion of the Court 5
Empire filed objections to the magistrate judge’s order.
The district court, however, overruled Empire’s objections to the
magistrate judge’s order. Reviewing the magistrate judge’s order
for clear error, the district court explained that “[c]ompelling ap-
praisal is not dispositive,” as appraisal “will only supply a calcula-
tion of the amount of loss without determining whether Empire
breached the contract or if Empire’s defenses stand.” The district
court also explained the appraisal process is not remedial because
it will not remedy the damages caused by Hurricane Irma; rather,
it was “a form of alternative dispute resolution that sets a disputed
loss amount” and was thus “but one step in this process, supplying
an extra-judicial mechanism to calculate the amount of loss.” And
the district court rejected Empire’s arguments over the timing of
the appraisal and whether “certain minimal guidelines” should be
imposed on the appraisal process.
Thus, the district court ordered the parties to appraisal and
stayed the case pending appraisal. The court stated that, within
seven days of the conclusion of the appraisal process, the parties
were directed to jointly notify it of “(a) what issues, if any, remain
for the Court to resolve; (b) whether the stay needs to be lifted; and
(c) how this action should proceed, if at all.” Empire then moved
to stay the district court’s order pending Empire’s interlocutory ap-
peal, which the district court granted.
Empire timely appealed. During this appeal, we issued a ju-
risdictional question to the parties asking them to address whether
we had appellate jurisdiction over an order that compelled
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6 Opinion of the Court 22-13881
appraisal, stayed the case pending appraisal, and directed the par-
ties to file status reports on the appraisal process. We also asked the
parties to address whether orders compelling appraisal are treated
the same as orders compelling arbitration for purposes of our ap-
pellate jurisdiction. We now resolve the jurisdictional question.
II. STANDARD OF REVIEW
We review de novo an order granting a party's motion to
compel appraisal. Positano Place, 84 F.4th at 1247. And we re-
view de novo our appellate jurisdiction. Id.
III. ANALYSIS
“We have a duty to assure ourselves of our jurisdiction at all
times in the appellate process.” Thomas v. Phoebe Putney Health Sys.,
Inc., 972 F.3d 1195, 1200 (11th Cir. 2020). Thus, “before we can
review the order compelling appraisal in this case, we must deter-
mine whether we have jurisdiction to do so.” Positano Place, 84
F.4th at 1247.
For an order to be appealable, it “must either be final or fall
into a specific class of interlocutory orders that are made appealable
by statute or jurisprudential exception.” CSX Transp., Inc. v. City of
Garden City, 235 F.3d 1325, 1327 (11th Cir. 2000); see 28 U.S.C. §§
1291–92. Section 1291 “provides us with appellate jurisdiction of
final decisions of the district courts, while § 1292 provides for re-
view of certain classes of interlocutory orders.” Positano Place, 84
F.4th at 1248. Further, “for an order disposing of a request to com-
pel arbitration, the FAA governs the appealability of such an or-
der.” Id.
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22-13881 Opinion of the Court 7
For the reasons stated in Positano Place, we conclude that we
lack jurisdiction over the order compelling appraisal and staying
the proceedings pending the appraisal process. As an initial matter,
the order compelling appraisal is not a final order reviewable under
§ 1291 because (1) the order contemplated further proceedings, (2)
appraisal existed for the limited purpose of determining the
amount of loss, and (3) “all issues other than those contractually
assigned to the appraisal panel are reserved for determination in a
plenary action.” Id. (quoting Citizens Prop. Ins. Corp. v. Mango Hill
Condo. Ass'n, 117 So. 3d 1226, 1230 (Fla. Dist. Ct. App. 2013)).
Next, the order compelling appraisal is not appealable under
one of the classes of appealable, interlocutory orders under
§ 1292—specifically, § 1292(a)(1), which provides for review of or-
ders “granting, continuing, modifying, refusing or dissolving in-
junctions, or refusing to dissolve or modify injunctions.” Id. at
1248–49, 1254. In Positano Place, we addressed a substantially simi-
lar appraisal order and found that the order was not an “explicit
grant of an injunction.” See id. at 1249. In finding so, we explained
that: (1) the insured had “simply moved to compel appraisal” based
on the insurance policy's appraisal provision, and had not moved
for an injunction nor sought any injunctive relief in its operative
complaint; (2) the district court had not made the requisite findings
of fact and conclusions of law that normally support an order grant-
ing injunctive relief; and (3) based on how the district court charac-
terized the appraisal order, it “did not intend to issue an injunc-
tion.” See id. (quoting Supreme Fuels Trading FZE v. Sargeant, 689
F.3d 1244, 1247 (11th Cir. 2012) (Pryor, J., concurring)). We also
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8 Opinion of the Court 22-13881
explained that “merely establishing that the order under consider-
ation is a court order commanding or preventing an action, and
enforceable by contempt, does not make it ‘an injunction’ un-
der § 1292(a)(1).” Id. at 1250 (quoting Alabama v. U.S. Army Corps of
Eng’rs, 424 F.3d 1117, 1128 (11th Cir. 2005)). Rather, “[t]he order
must also give ‘some or all of the substantive relief sought in the
complaint,’” and “[t]he § 1292(a)(1) exception [to the final judg-
ment rule] does not embrace orders that have no direct or irrepa-
rable impact on the merits of the controversy.” Id. (quoting U.S.
Army Corps, 424 F.3d at 1128–29). Critically, the order compelling
appraisal “did not dispose of any of the claims or defenses in th[e]
case” but “simply enforced the parties’ contractually-agreed-to, ex-
tra-judicial mechanism to calculate the amount of loss as to claims
made under” the insurance policy. Id. at 1251. We reasoned that
the “appraisal process is not remedial” and that the result of that
process did not entitle the insured to relief or judgment on its
claims against the insurer related to the claims for property insur-
ance benefits under the insurance policy. Id. The same holds true
for the order compelling appraisal here, and, as such, we conclude
that it is not the explicit grant of an injunction.
We also have appellate jurisdiction over “orders that have
the practical effect of granting or denying injunctions and have ‘se-
rious, perhaps irreparable, consequence.’” Id. (quoting Gulfstream
Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 287–88 (1988)). In
Positano Place, we summarized the requirements for such orders as
follows: (1) “if the relief sought is not actually an injunction, then
it must have the practical effect of an injunction”; and (2) “the
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22-13881 Opinion of the Court 9
appellant must show that the interlocutory order of the district
court ‘might have a serious, perhaps irreparable, consequence, and
that the order can be effectually challenged only by immediate ap-
peal.’” Id. at 1252 (quoting United States v. City of Hialeah, 140 F.3d
968, 973 (11th Cir. 1998)). Applying those requirements in Positano
Place, we found that the order compelling appraisal did not have
“serious, perhaps irreparable, consequence” such that it was effec-
tively challengeable “only by immediate appeal.” Id. We noted
that the order did not entitle the insured to judgment on its claims
against the insurer. Id. Additionally, we explained that “while the
appraisal process is binding on the parties as to the amount of the
loss, [the insurer] can still pursue its defenses of coverage denials as
a whole and to specific buildings owned by [the insured] in the dis-
trict court once the appraisal process concludes.” Id. And we
stated that if the insurer was “unsuccessful in the district court fol-
lowing the conclusion of the appraisal proceedings, it can still ob-
tain relief upon review after trial by appealing any final judgment
against it—meaning that the order is not effectively challengeable
only by immediate appeal.” Id.
Here, too, the district court’s order does not have “serious,
perhaps irreparable, consequence” such that it is effectively chal-
lengeable “only by immediate appeal.” Rather, the order here (1)
compelled the parties to submit their disagreement on the amount
of loss issue to an appraisal in accordance with the Policy, (2) stayed
the case pending completion of the appraisal process, and (3) re-
quired the parties to file a joint status reports detailing the status of
the appraisal process and the need for any further proceedings in
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10 Opinion of the Court 22-13881
the district court. The order, however, does not entitle Concord to
judgment on its claims against Empire. Indeed, the appraisal pro-
cess will only supply a calculation of the amount of loss without
determining whether Empire breached the Policy, and Empire will
be able to pursue its coverage defenses once the appraisal process
concludes. And if Empire does not succeed in the district court af-
ter the appraisal proceedings, it can still obtain relief upon review
after trial by appealing any final judgment against it—meaning that
the order is not effectively challengeable only by immediate appeal.
See id. We thus do not have appellate jurisdiction over the order
on this basis.2
Finally, as we explained in Positano Place, “even assuming
for the sake of argument that the order compelling appraisal here
fell within the definition of arbitration for purposes of the FAA, we
still lack appellate jurisdiction over the district court’s order.” Id. at
1255. Indeed, the order compelling appraisal is not a final order,
meaning that it is not appealable under 9 U.S.C. § 16(a)(3), which
provides that an appeal may be taken from “a final decision with
respect to an arbitration.” And because 9 U.S.C. § 16(b)(3) specifi-
cally states that “an appeal may not be taken from an interlocutory
order . . . compelling arbitration” and because § 16(b)(1) makes “an
2 In its reply brief, Empire makes several arguments criticizing our recent Posi-
tano Place decision. But under this Court’s prior precedent rule,
“a prior panel’s holding is binding on all subsequent panels unless and until it
is overruled or undermined to the point of abrogation by the Supreme Court
or by this court sitting en banc.” United States v. Archer, 531 F.3d 1347, 1352
(11th Cir. 2008).
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22-13881 Opinion of the Court 11
interlocutory order . . . granting a stay” pending referral of arbitra-
ble issues to arbitration not immediately appealable, “we lack ap-
pellate jurisdiction over the order compelling appraisal even if ap-
praisal were to be considered arbitration for purposes of the FAA.”
Positano Place, 84 F.4th at 1255.
IV. CONCLUSION
For all these reasons, we conclude that the district court's
order compelling appraisal and staying the proceedings pending ap-
praisal is an interlocutory order that is not immediately appealable
under either § 1292(a)(1) or the FAA. We therefore dismiss the ap-
peal for lack of appellate jurisdiction.
APPEAL DISMISSED.
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