USCA11 Case: 22-10713 Document: 59-1 Date Filed: 06/09/2023 Page: 1 of 5
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10713
____________________
THE BREAKWATER COMMONS
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. 2:20-cv-00031-JLB-NPM
USCA11 Case: 22-10713 Document: 59-1 Date Filed: 06/09/2023 Page: 2 of 5
2 Opinion of the Court 22-10713
____________________
Before LUCK, LAGOA, and TJOFLAT, Circuit Judges.
PER CURIAM:
This appeal concerns a pending insurance contract dispute
between The Breakwater Commons Association, Inc., and Empire
Indemnity Insurance Company, which issued an insurance policy
(the “Policy”) to Breakwater for coverage of multiple buildings that
Breakwater owns in Naples, Florida. We presume that the parties
are familiar with the facts of the case and only discuss those facts
necessary for resolution of the appeal.
Following Hurricane Irma, Breakwater filed a first-party
claim for property insurance benefits under the Policy, claiming
that Hurricane Irma damaged its property and that the damage was
covered by the Policy. After its investigation of the claim, Empire
found covered damages to some of Breakwater’s buildings, but a
dispute between the parties arose as to the amount of loss of the
claim.
Because of this dispute, Breakwater sought to invoke ap-
praisal based on the Policy’s appraisal provision. The appraisal pro-
vision provides that if the parties “[d]isagree on the value of the
property or the amount of loss, either may request an appraisal of
the loss, in writing,” sets forth the procedures of the appraisal pro-
cess, and states that “[i]f there is an appraisal, [Empire] will still re-
tain [its] right to deny the claim.” When Empire refused to go to
appraisal, Breakwater sued Empire in Florida state court, and
USCA11 Case: 22-10713 Document: 59-1 Date Filed: 06/09/2023 Page: 3 of 5
22-10713 Opinion of the Court 3
Empire removed the case to federal court based on diversity juris-
diction.
Following removal, Breakwater filed its complaint, alleging
one count for declaratory judgment and one count for breach of
contract. Breakwater later withdrew its count for declaratory judg-
ment. In response, Empire filed an answer asserting various de-
fenses against Breakwater’s complaint. Breakwater then filed a
motion to compel appraisal and to stay the proceedings pending
the completion of the appraisal process, which Empire opposed.
Breakwater’s motion to compel appraisal was referred to a
magistrate judge. The magistrate judge issued an order granting
Breakwater’s motion as to its request to compel appraisal as set
forth by the Policy but denied the motion as to its request to stay
the proceedings pending appraisal. In doing so, the magistrate
judge concluded that: (1) Breakwater did not waive its right to ap-
praisal because it timely invoked the appraisal provision and never
acted inconsistent with that right; (2) Breakwater was not required
to file a motion for summary judgment or injunctive relief to in-
voke appraisal; and (3) Breakwater’s lawsuit was not premature.
The magistrate judge, however, declined Breakwater’s request to
stay the proceedings because Breakwater did not present any argu-
ment in support of a stay beyond the title of its motion.
Empire objected to the magistrate judge’s order, but the dis-
trict court overruled Empire’s objections, declining to modify or
set aside any part of the order as “clearly erroneous” or “contrary
to law” under Federal Rule of Civil Procedure 72(a). The district
USCA11 Case: 22-10713 Document: 59-1 Date Filed: 06/09/2023 Page: 4 of 5
4 Opinion of the Court 22-10713
court explained that the parties could seek appraisal through a
breach of contract action and were not required to file for summary
judgment to invoke appraisal. The court further explained that,
under Florida law, appraisal determines only the amount payable
under an insurance policy, not whether there is an obligation to
pay that amount. The district court also found that Breakwater did
not waive its right to appraisal and that appraisal was not moot.
Empire timely appealed the district court’s order.
During this appeal, we issued a jurisdictional question to the
parties asking them to address whether this Court had appellate ju-
risdiction over an order that compelled appraisal but did not dis-
miss or stay the case. We also asked the parties to address whether
orders compelling appraisal are treated the same as orders compel-
ling arbitration for purposes of appellate jurisdiction.
After careful review, and with the benefit of oral argument,
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 recent decision in Positano Place at Na-
ples I Condominium Association v. Empire Indemnity Insurance Co.,
Nos. 22-11059, 22-10877, 22-11060, 22-10889 (May 31, 2023). In-
deed, the order compelling appraisal is an interlocutory order that
is not immediately appealable under
28 U.S.C. § 1292(a)(1) or un-
der the Federal Arbitration Act. See
id. at 3–4. Accordingly, we
dismiss the appeal for lack of appellate jurisdiction.
APPEAL DISMISSED.
USCA11 Case: 22-10713 Document: 59-1 Date Filed: 06/09/2023 Page: 5 of 5
22-10894 TJOFLAT, J., Dissenting 1
TJOFLAT, Circuit Judge, dissenting:
For the reasons expressed in my dissent in Positano Place at
Naples I Condominium Association v. Empire Indemnity Insurance Co.,
Nos. 22-11059, 22-10877, 22-11060, 22-10889 (May 31, 2023), I dis-
sent to the dismissal of this appeal.
