USCA11 Case: 21-13304 Date Filed: 09/29/2022 Page: 1 of 10
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13304
Non-Argument Calendar
____________________
GEICO GENERAL INSURANCE COMPANY,
Plaintiff-Counter Defendant-Appellee,
versus
EILEEN GONALEZ,
FRANK BENNAR,
Individually, and as parents and natural guardians,
DEVIN BENNAR,
A minor,
ZABRYNA HERNANDEZ ACUNA,
Individually,
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2 Opinion of the Court 21-13304
Defendants-Counter Claimants-Appellants,
LUIS O. CHIONG, et al.,
Defendants.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-cv-21549-KMW
____________________
Before GRANT, LUCK, and BRASHER, Circuit Judges.
PER CURIAM:
This appeal requires us to determine whether a golf cart
qualifies as a “private passenger auto,” as that term is defined in an
insurance policy. We conclude that the policy definition does not
exclude golf carts, and that the district court therefore erred in
entering judgment in favor of the insurance company. We reverse
in part, vacate in part, and remand for further proceedings.
I.
GEICO General Insurance Company filed this declaratory
action in the Southern District of Florida, seeking a ruling that an
insurance policy it issued to Monika and Jesse Acuna did not
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21-13304 Opinion of the Court 3
provide coverage for an accident allegedly caused by the insureds’
minor daughter, Zabryna Hernandez Acuna, while she was driving
a golf cart. The accident was the subject of a personal-injury
lawsuit brought against Zabryna and Monika Acuna and others by
the parents of Devin Bennar, a passenger in the golf cart who was
injured during the accident.
According to the personal-injury complaint, Zabryna was
driving a golf cart owned by Luis Chiong to or from a golf course
in south Florida when she caused a collision with a Dodge Caliber.
Devin was ejected from the golf cart and suffered a permanent
traumatic brain injury. Ultimately, Devin’s parents obtained a
consent judgment against Zabryna for $18 million.
Zabryna was covered under her parents’ liability insurance
policy with GEICO for bodily injury and property damage arising
from the use of, as relevant here, a “non-owned auto.” The policy
defined “non-owned auto” as “a private passenger, farm, or utility
auto or trailer not owned by, furnished or available for regular use
for either you or your relative.” GEICO contended that it was not
required to defend or indemnify the Acunas for the accident
because the golf cart was not a “private passenger auto,” a “farm
auto,” or a “utility auto” as defined in the policy.
The district court agreed. It granted GEICO’s motion for
summary judgment on the declaratory claim and on the
defendants’ counterclaim for breach of contract and denied the
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defendants’ motion for summary judgment on the declaratory
claim. This appeal followed. 1
II.
Florida law applies in this diversity-jurisdiction action
involving the interpretation of an insurance policy issued in
Florida. See Hegel v. First Liberty Ins. Corp.,
778 F.3d 1214, 1220
(11th Cir. 2015); Prime Ins. Syndicate, Inc. v. B.J. Handley
Trucking, Inc.,
363 F.3d 1089, 1091 & n.1 (11th Cir. 2004). We
review a district court’s interpretation of an insurance policy and
application of state law in a summary judgment ruling de novo.
Hegel, 778 F.3d at 1219; Horn v. Liberty Ins. Underwriters, Inc.,
998 F.3d 1289, 1293 (11th Cir. 2021). Summary judgment is
appropriate where “the movant shows that there is no genuine
1 We carried with the case the question of whether the district court’s failure
to enter a final default judgment against defendant Luis Chiong affected our
appellate jurisdiction. Upon consideration, we are satisfied that we have
jurisdiction over this appeal despite the omission because aside from the
procedural matter of a separate judgment, the claims against Chiong have
been resolved. See Arango v. Guzman Travel Advisors,
761 F.2d 1527, 1530–
31 (11th Cir. 1985). Chiong failed to answer GEICO’s complaint or enter an
appearance, and the district court directed the clerk to enter default against
Chiong and directed GEICO to file a motion for final default judgment.
Because GEICO sought only declaratory relief against Chiong, the district
court was not required to determine the amount of damages due from him.
In short, the district court’s order “clearly evidenced that it had entered its final
decision” with respect to Chiong.
Id. at 1531.
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dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a).
In diversity cases like this one, we must decide questions of
state law “the way it appears the state’s highest court would.”
Pincus v. Am. Traffic Sols., Inc.,
986 F.3d 1305, 1310 (11th Cir. 2021)
(quotation omitted). If the state’s highest court has not issued an
opinion on a question of state law, we must apply the relevant
decisions of the state’s intermediate appellate courts, “absent some
persuasive indication that the state’s highest court would decide
the issue otherwise.”
Id. (quotation omitted).
“Under Florida law, insurance contracts are construed
according to their plain meaning.” Garcia v. Fed. Ins. Co.,
969 So.
2d 288, 291 (Fla. 2007) (quotation omitted). Ambiguities in
insurance policies are construed against the drafter and in favor of
the insured.
Id. Thus, if “the relevant policy language is susceptible
to more than one reasonable interpretation, one providing
coverage and the other limiting coverage,” the policy will be
interpreted to provide coverage.
Id.
The dispute here involves the meaning of the term “private
passenger auto.” The policy defines “private passenger auto” as a
“four-wheel private passenger, station wagon or jeep-type auto,
including a farm or utility auto as defined.” A “farm auto” is
defined as “a truck type vehicle with a gross vehicle weight of
15,000 pounds or less, not used for commercial purposes other than
farming.” And the policy defines “utility auto” as “a vehicle, other
than a farm auto, with gross vehicle weight of 15,000 pounds or
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less of the pick-up body, van or panel truck type not used for
commercial purposes.”
Read in isolation, the policy definition of “private passenger
auto” includes golf carts like the one involved in the accident
here—the golf cart was a four-wheeled, privately owned, passenger
vehicle. And as one Florida appellate court has explained, the
undefined term “auto” can encompass golf carts. Fireman’s Fund
Ins. Cos. v. Pearl,
540 So. 2d 883, 884 (Fla. Dist. Ct. App. 1989).
Reading the definition of “private passenger auto” in context
to include the definitions of the terms “farm auto” and “utility
auto” results in a narrower interpretation—but one that still does
not exclude golf carts. In Martin v. Nationwide Mutual Fire
Insurance Company, Florida’s Second District Court of Appeal
interpreted a liability insurance policy with similar definitions for
the terms “private passenger automobile,” “farm automobile,” and
“utility automobile.”
235 So. 2d 14, 16–17 (Fla. Dist. Ct. App. 1970).
The court explained that those definitions revealed a common—
“albeit implicit”—element: all had “as an inherent design
characteristic the capacity to be driven legally and safely on public
highways.”
Id. at 16. The court determined that the insured’s
“jeep,” a “moveable vehicle” which he had “built from scratch”
from miscellaneous car parts and used to drive around his pasture,
was not an “automobile” within the meaning of the policy because
it “was not intended to be road operable” and was never driven on
the road.
Id.
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In contrast to the homemade vehicle at issue in Martin, golf
carts typically can be driven safely on public roads where their use
is allowed by law. Of course, golf carts are designed to be used
mainly “at low speed on a golf course or for similar sporting or
recreational purposes, or for transportation on private property”;
operation on the public roadway is not their principal purpose.
Herring v. Horace Mann Ins. Co.,
795 So. 2d 209, 211 (Fla. Dist. Ct.
App. 2001). Thus, one Florida appellate court has concluded that a
golf cart did not meet an insurance policy’s definition of a “motor
vehicle” where that term was defined to include only vehicles
“designed for use on public roads.”
Id. And a panel of this Court
has held that a golf cart was not a “car” under a policy that defined
that term as a four-wheeled motor vehicle “designed for use mainly
on public roads.” State Farm Mut. Auto. Ins. Co. v. Baldassini, 545
F. App’x 842, 843–44 (11th Cir. 2013) (unpublished).
But the Acunas’ insurance policy had no such limiting
language for liability coverage,2 and Martin’s interpretation does
not require that a “private passenger auto” be designed specifically
for roadway use—only that it have the capacity to be used legally
and safely on public roads. Martin,
235 So. 2d at 16. Golf carts do.
2 The policy did include similar language in the section providing personal in-
jury protection coverage, which among other things defined a “motor vehicle”
in part as “any self-propelled vehicle of four or more wheels which is of a type
both designed and required to be licensed for use on the highways of Florida.”
The defendants in the declaratory judgment action do not contend that the
golf cart qualified as a “motor vehicle” under that definition.
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Florida law allows golf cart use on designated county roads
and municipal streets, on certain state park roads, and to cross state
highways in specified locations.
Fla. Stat. § 316.212. Golf carts are
ubiquitous—and legal—on public roads in golfing and beach
communities throughout Florida. And they are frequently
encountered on neighborhood streets traveling to or from a nearby
golf course, just as Zabryna Acuna and her passengers apparently
were doing when the accident occurred.
GEICO argues that the golf cart Zabryna was driving on the
roadway could not have been driven legally on the road because it
lacked some of the equipment that Florida requires for cars, such
as windshield wipers and seatbelts. That argument fails for two
reasons. First, Florida law does not require the same equipment
on golf carts as it does on cars; a golf cart can be driven legally on
designated roads without windshield wipers or seatbelts. See
Fla.
Stat. § 316.212(6). And second, even if, as GEICO contends, the
golf cart lacked some of the equipment (a rearview mirror and red
warning stickers) that Florida requires for golf carts, it still had the
capacity to be driven legally and safely on the road if those
equipment deficiencies were corrected. Cf. Martin,
235 So. 2d at
16 (distinguishing the built-from-scratch “jeep” from “the situation
where an automobile is rebuilt, or undergoes major repairs or is
inoperable because of the temporary absence of an essential
component”).
In short, the district court erred in determining that the golf
cart did not qualify as a “private passenger auto” as defined in the
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insurance policy and that the policy did not provide liability
insurance coverage for the accident for that reason. It therefore
erred in granting GEICO’s motion for summary judgment on its
claim for declaratory relief, and in denying the defendants’ cross-
motion for summary judgment on GEICO’s declaratory claim.
The district court’s error in interpreting the insurance policy
also formed part of the basis for granting GEICO’s motion for
summary judgment on the defendants’ counterclaim for breach of
contract. The court adopted the magistrate judge’s report and
recommendation, which explained that since (under the erroneous
interpretation of the contract) GEICO had no contractual
obligation to provide liability coverage, it could not have breached
the contract by denying the claim for coverage. This conclusion
was faulty because of its faulty premise.
But the magistrate judge’s recommendation was also based
in part on his observation that the defendants’ counterclaim did not
set out a coherent claim for breach of contract—the defendants
seemed to be trying to disguise what was actually a premature bad-
faith failure-to-settle claim as a breach-of-contract claim. This
criticism appears justified; among other things, the defendants
sought extra-contractual damages that may be awarded on a
statutory bad-faith claim in Florida, but not in an action for breach
of an insurance contract. See Citizens Prop. Ins. Corp. v. Manor
House, LLC,
313 So. 3d 579, 582 (Fla. 2021). On remand, the
district court will need to reconsider GEICO’s motion for summary
judgment on the counterclaim in light of our decision on the
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coverage issue, the relief sought in the counterclaim, and defenses
to the counterclaim that were raised by GEICO but not reached by
the district court.
III.
For the reasons discussed above, we REVERSE the district
court’s order granting GEICO’s motion for summary judgment on
its claim for declaratory relief and denying the defendants’ motion
for summary judgment on that claim, VACATE the order granting
GEICO’s motion for summary judgment on the defendants’
counterclaim, and REMAND for further proceedings.
REVERSED IN PART, VACATED IN PART, AND
REMANDED.
