                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________                   FILED
                                                        U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                             No. 08-15842                    MARCH 26, 2009
                         Non-Argument Calendar             THOMAS K. KAHN
                       ________________________                 CLERK

                   D. C. Docket No. 08-01121-CV-BBM-1

ALEX MOORE, JR.,
                                                           Plaintiff-Appellant,

                                  versus

TRAVELERS,
                                                           Defendant,

THE TRAVELERS COMPANIES, INC.,
THE AUTOMOBILE INSURANCE COMPANY OF
     HARTFORD, CONN,
                                                           Defendants-
                                                           Appellees.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                             (March 26, 2009)

Before BLACK, BARKETT, and HILL, Circuit Judges.
PER CURIAM:

       Appellant Alex Moore, Jr. filed this class action against appellees, The

Travelers Companies, Inc. and The Automobile Insurance Company of Hartford,

Connecticut (AICOH), alleging breach of contract.1 Moore owned a home in

Alabama which was covered by an AICOH homeowners policy. The property was

damaged by Hurricane Katrina in 2005.

       In adjusting his claim, Moore claims that AICOH breached his contract as

the insurance payment issued to him for the “actual cash value” of his damages did

not include an additional allowance for twenty percent in general contractor costs.2

In response, AICOH filed a motion to dismiss, or, in the alternative, stay this

litigation and compel appraisal, thereby seeking to enforce the appraisal provision

of the insurance policy.3 It claims that the appraisal provision of the policy

       1
         The Travelers Companies, Inc. has filed its own motion to dismiss, arguing that it is not
properly before the court. The parties have agreed to stay the briefing of that motion pending
resolution of the issue presented here.
       2
          The policy states that “[a]ctual cash value is calculated as the amount it would cost to
repair or replace covered property, at the time of loss or damage, with material of like kind and
quality, subject to a deduction for deterioration, depreciation and obsolescence.”
       3
           The appraisal provision of the policy reads:

       If you and we fail to agree on the amount of loss, either one can demand that the
       amount of loss be set by appraisal. If either makes a written demand for appraisal,
       each shall select a competent, independent appraiser and notify the other of the
       appraiser’s identity within twenty days of receipt of the written demand. The two

                                                 2
precludes Moore’s suit, as complying with the appraisal provision is a condition

precedent to filing suit.

         The policy determines that coverage is decided by a court of law. The

policy determines that the value of damages is decided by appraisal. See note 3

supra.

         Moore claims that his suit is not a dispute as to the amount of loss or

valuation, but a dispute as to coverage. Therefore, he is not obligated to comply

with the appraisal provision of the homeowners policy, so it is not a condition

precedent.

         We have studied the entire record in this case, the briefs, and the arguments

of counsel contained therein. There is no question that the policy covers damage

done by Hurricane Katrina to Moore’s home. There is no question that the dispute

here is a fight about the dollar amount of the loss. The amount of that loss may or




         appraisers shall then select a competent, impartial umpire. If the two appraisers
         are unable to agree upon an umpire within fifteen days, you or we can ask a judge
         of a court of record in the state where the residence premises is located to select
         an umpire. The appraisers shall then set the amount of loss. If the appraisers
         submit a written report of an agreement to us, the amount agreed upon shall be the
         amount of the losses. If the appraisers fail to agree within a reasonable time, they
         shall submit their differences to the umpire. Written agreement signed by any two
         of these three shall set the amount of the loss. Each appraiser shall be paid by the
         party selecting that appraiser. Other expenses of the appraisal and the
         compensation of the umpire shall be paid equally by you and us.

                                                  3
may not include costs of brick, mortar, timber, and, perhaps “general contractor

costs.”

       Moore’s request for twenty percent general contractor costs in the

calculation of actual cash value is a request for an increase in the determination of

the loss. It does not relate to coverage in addition to the loss.

       Therefore, under the terms of the homeowners policy, Moore must first

comply with the appraisal provision to determine his amount of loss. He is

contractually bound to do so. At that time, he may or may not establish that

“twenty percent general contractor costs” be included in the “actual cash value” of

his damages.

       As no appraisal has as yet taken place to resolve this matter, Moore’s

complaint fails to state a claim upon which relief can be granted. The judgment

of the district court is

       AFFIRMED.




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