Creekside Crossing Condominium Association, Inc. v. Empire Indemnity Insurance Company ( 2023 )

USCA11 Case: 22-10894 Document: 46-1 Date Filed: 06/09/2023 Page: 1 of 5
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10894
____________________
CREEKSIDE CROSSING 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. 2:20-cv-00136-JLB-MRM
____________________
USCA11 Case: 22-10894 Document: 46-1 Date Filed: 06/09/2023 Page: 2 of 5
2 Opinion of the Court 22-10894
Before LUCK, LAGOA, and TJOFLAT, Circuit Judges.
PER CURIAM:
This appeal concerns a pending insurance contract dispute
between Creekside Crossing Condominium Association, Inc., and
Empire Indemnity Insurance Company, which issued an insurance
policy (the “Policy”) to Creekside for coverage of multiple build-
ings that Creekside owns in Bonita Springs, Florida. We presume
that the parties are familiar with the facts of the case and only dis-
cuss those facts necessary for resolution of the appeal.
Following Hurricane Irma, Creekside 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 Creekside’s buildings, but a dis-
pute between the parties arose as to the amount of loss of the claim.
Because of this dispute, Creekside sought to invoke appraisal
based on the Policy’s appraisal provision. The appraisal provision
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 process, and
states that “[i]f there is an appraisal, [Empire] will still retain [its]
right to deny the claim.” When Empire refused to go to appraisal,
Creekside sued Empire in Florida state court, and Empire removed
the case to federal court based on diversity jurisdiction.
Following removal, Creekside amended its complaint, alleg-
ing one count for declaratory judgment and one count for breach
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22-10894 Opinion of the Court 3
of contract. Creekside then filed a motion to compel appraisal and
to stay the proceedings pending the completion of the appraisal
process, which Empire opposed. Empire also filed an answer as-
serting various defenses against Creekside’s complaint, as well a
motion to dismiss the complaint. The district court denied Em-
pire’s motion.
Creekside’s motion to compel appraisal was referred to a
magistrate judge. The magistrate judge issued a report and recom-
mendation, which recommended the district court grant
Creekside’s motion to compel appraisal as set forth by the Policy.
The magistrate judge found that Creekside was not required to
prove the elements of specific performance nor move for summary
judgment for the court to compel appraisal under Florida law.
The magistrate judge also declined Empire’s request to “impose
guidelines or require specific processes during appraisal as that
would amount to rewriting the parties’ Policy to add conditions for
the appraisal process that were not part of the parties’ bargain.”
Empire objected to the magistrate judge’s report and recom-
mendation, but the district court overruled Empire’s objections
and adopted the report. In doing so, the district court explained
that the parties can seek appraisal through breach of contract and
declaratory judgment actions and that a summary judgment mo-
tion was not a requirement for a party to move for appraisal, as
appraisal—which only determined the amount payable under the
Policy, and not the obligation to pay that amount—did not entitle
any party to judgment. The court also found that a stay of the case
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4 Opinion of the Court 22-10894
pending appraisal would not unduly prejudice or tactically disad-
vantage Empire, noting that “discovery, of course, may resume
upon completion of the appraisal process.” The district court thus
ordered the parties to appraisal and stayed the case pending com-
pletion of the appraisal process. Empire timely appealed the dis-
trict 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, stayed the case
pending appraisal, and directed the parties 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 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.
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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.