Juana Aleman v. Ace American Insurance Company , 564 F. App'x 1016 ( 2014 )

Case: 13-13818 Date Filed: 05/07/2014 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-13818
________________________
D.C. Docket No. 1:12-cv-20857-JG
JUANA ALEMAN, a Florida resident, as Assignee of
Joanglia Howard, individually and as Personal
Representative of the Estate of Jasper Tyrone Howard,
deceased,
f.k.a. Juana Montalvo,
Plaintiff - Counter
Defendant - Appellant,
versus
ACE AMERICAN INSURANCE COMPANY,
a Pennsylvania corporation,
Defendant - Counter
Claimant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 7, 2014)
Case: 13-13818 Date Filed: 05/07/2014 Page: 2 of 4
Before WILSON and JORDAN, Circuit Judges, and ROTHSTEIN, * District
Judge.
PER CURIAM:
Following a de novo review of the record, see Weeks v. Harden Mfg. Corp.,
291 F.3d 1307, 1311 (11th Cir. 2002), and with the benefit of oral argument, we
affirm the district court’s grant of summary judgment in favor of Ace American
Insurance Company.
We reject Ms. Aleman’s contention that the Ace Policy provided primary
coverage and was therefore subject to Florida’s financial responsibility law, Fla.
Stat. § 324.021. The operative complaint and the parties’ joint status report
stipulated that the Budget Policy served this function and that the Ace Policy
merely provided excess coverage. The district court denied Ms. Aleman leave to
amend her complaint and the joint status report to assert that the Ace Policy also
provided primary coverage, and Ms. Aleman acknowledged at oral argument that
she did not appeal the denial of leave to amend.
Even if the issue were properly before us, the language of the Ace Policy
provides sufficient notice that the policy afforded excess rather than primary
coverage. Because Ms. Aleman was entitled only to excess coverage under the
Ace Policy, Florida’s public policy requiring primary financial responsibility
*
Honorable Barbara Jacobs Rothstein, United States District Judge for the District of Columbia,
sitting by designation.
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coverage for accidents involving unauthorized drivers does not apply here. See
Ins. Co. of N. Am. v. Avis Rent-A-Car Sys., Inc., 348 So. 2d 1149, 1154 (Fla. 1977)
(explaining that “[t]he underlying policy of the [financial responsibility] statute is
satisfied once the law's minimum financial protection is provided to injured
members of the public”).
We likewise find unpersuasive Ms. Aleman’s argument that Ace cannot rely
on the unauthorized driver exclusion because the Ace Policy was not delivered
within 60 days of its effective date, as required under Fla. Stat. § 627.421.
Untimely delivery of a rental policy does not invalidate an exclusion where notice
of the exclusion appears “in large print, in plain language, in the rental agreement”
and the insured cannot show prejudice stemming from the insurer’s failure to
deliver. See T.H.E. Ins. Co. v. Dollar Rent-A-Car Sys., Inc., 900 So. 2d 694, 695-
96 (Fla. 5th DCA 2005).
The Rental Agreement references the unauthorized driver exclusion
explicitly and in all capital letters. See D.E. 18-2 ¶ 14 (“A VIOLATION OF THIS
PARAGRAPH, WHICH INCLUDES USE OF THE CAR BY AN
UNAUTHORIZED DRIVER, WILL AUTOMATICALLY TERMINATE YOUR
RENTAL, VOID ALL LIABILITY PROTECTION AND ANY OPTIONAL
SERVICES THAT YOU HAVE ACCEPTED, INCLUDING SUPPLEMENTAL
LIABILITY INSURANCE....”). It goes on to clarify that, as relevant here, the
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driver “must be at least 25 years old and must be a capable and validly licensed
driver.” Id. at ¶ 15. This language was sufficiently conspicuous and
comprehensible to provide notice of the terms of the Ace Policy. Moreover, the
underlying accident occurred mere days after the car was rented and insurance was
purchased, and long before the close of the 60-day delivery period, and Ms.
Aleman has identified no prejudice resulting from Ace’s failure to deliver the
policy. See T.H.E. Ins. Co., 900 So. 2d at 695.
Because the Ace Policy is not subject to Florida’s financial responsibility
law, and Ace’s failure to deliver the policy was harmless, the district court’s grant
of summary judgment is affirmed.
AFFIRMED.
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