                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-19-2004

Camden Fire Ins v. KML Sales Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4114




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Recommended Citation
"Camden Fire Ins v. KML Sales Inc" (2004). 2004 Decisions. Paper 693.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/693


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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 02-4114
                                    ____________

                   CAMDEN FIRE INSURANCE ASSOCIATION,

                                           Appellant

                                          v.

                     KML SALES, INC.; ROBERT KEICHER;
                    GERALD KEICHER; DONALD KEICHER;
                    HENRY KEICHER, t/d/b/a KEICHER BROS.
                               ____________

                    On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                                (D.C. No. 99-cv-00362)
                    District Judge: Honorable Donetta W. Ambrose
                                    ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 1, 2004

              Before: ALITO, FISHER and ALDISERT, Circuit Judges.

                                 (Filed May 19, 2004)
                                    ____________

                             OPINION OF THE COURT
                                  ____________

FISHER, Circuit Judge.

      The Camden Fire Insurance Association (“Camden”) appeals a district court order

which appointed an umpire to oversee an arbitration process. The umpire was appointed
to decide between two estimates of the value of inventory destroyed by fire. This Court

dismisses the appeal because the order that appointed the umpire was not a final,

appealable order that would allow us to exercise jurisdiction.

       On June 20, 1997, a fire caused the destruction of KML Sales, Inc.’s (“KML”)

inventory. KML was insured under a policy issued by Camden, and the policy contained

an appraisal provision.1 When the parties disagreed as to the replacement cost of the

destroyed inventory, Camden requested that the parties resolve the dispute through the

appraisal provision in the insurance contract. KML challenged the applicability of the

appraisal provision. After a bench trial, the district court ordered that the dispute be

resolved through the appraisal process on August 11, 2000. KML appealed the order, and

this Court affirmed.

       The appraisal process called for each party to select an appraiser. Together, the

two appraisers would decide the replacement cost of the destroyed inventory. If the

appraisers could not come to an agreement, the district court would appoint an umpire

who would decide between the two appraisers’ proposed replacement costs.

       Each party selected an appraiser, and the appraisers could not reach an agreement.

On October 29, 2002, KML filed a motion to appoint an umpire and submitted three

individuals for the district court’s consideration. The district court appointed one of those




   1
    The parties both call this provision an “appraisal provision”, but it is in fact a form of
arbitration.

                                              2
individuals as umpire on October 30, 2002. Camden immediately filed a motion to vacate

the order and appoint a different umpire, and Camden submitted the names of three

additional individuals. In a November 4, 2002 memorandum order, the district court

(1) vacated the first order appointing the umpire, (2) stated that the court further

considered the qualifications and impartiality of both parties’ suggested umpires, and

(3) reappointed the original umpire.

       Camden claims that the district court’s order that appointed an umpire is a final

appealable order under 28 U.S.C. § 1291 because it “will fully resolve all claims

presented to the district court” and “after the decision has been issued, there will be

nothing further for the district court to do.” Camden brief at 1, quoting Aluminum Co. of

America v. Beaver East, Inc., 124 F.3d 551, 557 (3d Cir. 2001) (citations omitted).

       KML maintains that the instant order is not a final, appealable order, because the

August 11, 2000 district court order requiring the dispute to be resolved through the

appraisal process was the final order. KM L asserts the disputed order at issue here is

merely remedial and administrative.

       This Court agrees. The order of the district court that appointed the umpire is not

an appealable final order pursuant to 28 U.S.C. § 1291.

       “A final decision is one which ends the litigation on the merits and leaves nothing

for the Court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233

(1945). Here, the final decision which ended the last round of litigation on its merits was



                                              3
the decision to grant Camden specific performance on the insurance contract and send the

dispute to appraisal. That decision was the final decision, it was appealed, and it was

upheld by this Court.

       “[A] final decision is one which disposes of the whole subject, gives all the relief

which was contemplated, provides with reasonable completeness, for giving effect to the

judgment and leaves nothing to be done in the cause save to superintend, ministerially,

the execution of the decree.” Isidor Paiewonski Assocs., Inc. v. Sharp Properties, Inc.,

998 F.2d 145, 150 (3d Cir. 1993) (citations omitted) (emphasis in original). “[I]n

assessing the appealability of a post-judgment order, the appropriate inquiry is whether

the order is more than simply administrative in that it affects the rights or creates

liabilities not previously resolved by the adjudication on the merits.” Id.

       Camden originally came to court to enforce the insurance policy’s appraisal

process, and the district court did so. According to the insurance policy written by

Camden, once the parties entered the appraisal process, they had the right to an umpire if

the appraisers could not agree. When the appraisers did not reach an agreement, the

district court acted within the appraisal process and appointed the umpire.

       Camden is not without redress if it is unhappy with the outcome of the appraisal

process. It could institute a separate proceeding in the district court to vacate the

arbitration award on the basis of the umpire’s alleged bias. See 9 U.S.C. § 10(a)(2);




                                              4
Green Tree Financial Corp. v. Randolph, 531 U.S. 79, 86 (2000); Aluminum Co. of

America v. Beazer East Inc., 124 F.3d at 555-561.2

       Accordingly, we will dismiss this appeal for lack of appellate jurisdiction.

________________________




   2
    This Court reviewed additional cases cited by the parties and finds them
distinguishable. Both Pacific Reinsurance Mgmt. v. Ohio Reinsurance Corp., 814 F.2d
1324 (9th Cir. 1987), and Manze v. State Farm Ins. Co., 817 F.2d 1062 (3d Cir. 1987),
compelled the parties to enter arbitration and appointed an umpire or arbitrator within the
same order.
     Here, there are two separate orders. The August 11, 2000 final order compelled
arbitration. The November 4, 2002 administrative order at issue merely appointed the
umpire.

                                             5
