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Marbella at Spanish Wells 1 Condominium Association, Inc. v. Empire Indemnity Insurance Company

Court: Court of Appeals for the Eleventh Circuit
Date filed: 2023-10-23
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USCA11 Case: 22-11782   Document: 57-1    Date Filed: 10/23/2023   Page: 1 of 5




                                                [DO NOT PUBLISH]
                                 In the
                United States Court of Appeals
                        For the Eleventh Circuit

                         ____________________

                              No. 22-11782
                         ____________________

       MARBELLA AT SPANISH WELLS 1 CONDOMINIUM
       ASSOCIATION, INC.,
                                                    Plaintiff-Appellee,
       versus
       EMPIRE INDEMNITY INSURANCE COMPANY,


                                                Defendant-Appellant,


       ZURICH AMERICAN INSURANCE COMPANY,


                                                          Defendant.


                         ____________________
USCA11 Case: 22-11782      Document: 57-1      Date Filed: 10/23/2023     Page: 2 of 5




       2                      Opinion of the Court                  22-11782

                  Appeal from the United States District Court
                       for the Middle District of Florida
                   D.C. Docket No. 2:21-cv-00641-SPC-MRM
                           ____________________

       Before WILLIAM PRYOR, Chief Judge, and LUCK and HULL, Circuit
       Judges.
       PER CURIAM:
               On our own motion, we vacate our prior opinion, and sub-
       stitute it with the following opinion. Empire Indemnity Insurance
       Company’s motion for panel rehearing is denied as moot.
               Empire appeals the district court’s order granting Marbella
       at Spanish Wells 1 Condominium Association, Inc.’s motion to
       compel appraisal of damage to its buildings caused by Hurricane
       Irma. This appeal presents the same jurisdictional issue as Positano
       Place at Naples I Condominium Association, Inc. v. Empire Indemnity In-
       surance Co., --- F.4th ----, No. 22-11059, 2023 WL 6937601 (11th Cir.
       Oct. 20, 2023). Like in Positano, we dismiss Empire’s appeal for lack
       of jurisdiction.
                                  *      *       *
              Marbella is a condominium association in Bonita Springs,
       Florida. Empire issued Marbella a property damage insurance pol-
       icy covering sixteen buildings. The policy contained an appraisal
       provision identical to the policy provision in Positano. Under the
       provision, if Empire and Marbella “[d]isagree[d] on the value of the
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       22-11782               Opinion of the Court                          3

       property or the amount of [a] loss, either [could] request an ap-
       praisal of the loss, in writing.”
              Marbella’s buildings were damaged during Hurricane Irma,
       and, in January 2021, the association executed a sworn proof of loss
       asserting over $4 million in actual cash value damage, including
       over half a million dollars for a “supplemental claim.” After its in-
       spector found only about $1,500 in roof damage—an amount be-
       low Marbella’s deductible—Empire, according to Marbella, “re-
       fused to admit coverage and pay all insurance proceeds due and
       owing for the loss.” So, in June 2021, Marbella sued for breach of
       contract. When mediation failed, Marbella demanded appraisal in
       July 2021.
              Empire removed the action to federal court, then answered,
       asserting four policy-provision defenses, failure to mitigate, and a
       statute-of-limitations defense to Marbella’s supplemental claim.
       Marbella moved to compel appraisal (and for a stay pending ap-
       praisal), arguing that Empire didn’t wholly deny coverage and so it
       was bound to submit the amount-of-loss question for appraisal.
       Empire opposed appraisal as improper absent summary judgment
       or injunctive relief; it also argued that the scope of appraisal should
       exclude the untimely supplemental claim.
              The magistrate judge recommended granting Marbella’s
       motion. The magistrate judge concluded that Marbella didn’t need
       to plead and prove entitlement to injunctive relief—or move for
       summary judgment—because appraisal isn’t remedial and
       wouldn’t dispose of any claims or defenses on the merits. The
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       4                      Opinion of the Court                 22-11782

       magistrate judge also concluded that appraisal should include Mar-
       bella’s supplemental claim, because the claim likely was timely and
       because Empire could litigate its affirmative defense after appraisal.
       Finally, the magistrate judge recommended staying the action be-
       cause “appraisal may resolve a majority, if not all, of the parties’
       dispute.”
               Empire objected to the magistrate judge’s report, but the
       district court overruled those objections, adopted the report, and
       ordered the parties to appraisal. The district court ruled that, like
       mediation, “the appraisal process is not remedial” but rather “one
       step in th[e] process” of Marbella obtaining a money judgment. Be-
       cause appraisal wouldn’t dispose of any claims or defenses—but in-
       stead “suppl[ied] an extra-judicial mechanism to calculate the
       amount of loss”—the district court declined to treat Marbella’s mo-
       tion as one for summary judgment. The district court concluded—
       based on its discretion to sequence appraisal before litigating de-
       fenses—that the supplemental claim should be included in the ap-
       praisal. Finally, the district court concluded that “a stay [wa]s ap-
       propriate as appraisal may resolve the parties’ dispute,” noting that
       otherwise “the stay [could] be lifted” post-appraisal because “the
       [district c]ourt contemplates post-appraisal proceedings” to litigate
       Empire’s defenses. In the meantime, the district court ordered the
       parties to (1) file periodic joint reports on the status of appraisal,
       and (2) file a joint notice, once appraisal was completed, indicating
       “what issues, if any, remain for the [district c]ourt to resolve” and
       “how th[e] action should proceed.”
USCA11 Case: 22-11782      Document: 57-1     Date Filed: 10/23/2023     Page: 5 of 5




       22-11782               Opinion of the Court                         5

              Empire timely appealed the order compelling appraisal. In
       response to our jurisdictional question, Marbella argued that nei-
       ther 28 U.S.C. section 1291 nor section 1292(a)(1) confers appellate
       jurisdiction and that the Federal Arbitration Act bars jurisdiction
       because an order compelling appraisal should be equated with an
       unappealable order compelling arbitration.
              We construed Marbella’s response as a motion to dismiss
       the appeal and now conclude that its motion is due to be granted
       in light of Positano. In Positano, we held that we lacked jurisdiction
       to hear Empire’s appeal of the district court’s order compelling ap-
       praisal. We concluded that the Positano order compelling appraisal
       (1) wasn’t final, because “the district court explicitly contemplated
       further proceedings”; (2) wasn’t immediately appealable under sec-
       tion 1292(a)(1), because the order neither “explicitly grant[ed] an
       injunction” nor had “some serious, perhaps irreparable, conse-
       quence” making it “effectively challengeable only by immediate
       appeal”; and, assuming appraisal was arbitration, (3) wasn’t appeal-
       able under the Federal Arbitration Act, which expressly precludes
       immediate appeal of interlocutory orders compelling arbitration
       and staying the case. 2023 WL 6937601, at *4–11 (cleaned up). For
       the same reasons, we lack jurisdiction over the largely identical ap-
       praisal order in this case. Accordingly, we dismiss Empire’s appeal
       for lack of appellate jurisdiction.
             APPEAL DISMISSED.