Case: 20-10476    Date Filed: 09/23/2020   Page: 1 of 7



                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 20-10476
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:17-cv-23201-KMW



MARIA THERESA GUANIRO ZAMORA,
ALEX TANTALEAN,
CECILIA DELGADO,
SONIA CARRANZA,

                                                         Plaintiffs - Appellants,

                                   versus

ACE AMERICAN INSURANCE COMPANY,

                                                         Defendant - Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                            (September 23, 2020)

Before MARTIN, NEWSOM, and BRANCH, Circuit Judges.

PER CURIAM:
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      This appeal arises out of a car rental. Maria Theresa Guaniro Zamora, an

Alamo Rent-A-Car customer, purchased an insurance policy from Ace American

Insurance Company. Zamora’s policy included $100,000 of excess

uninsured/underinsured motorist (UM) coverage that had been issued by Ace to the

named insured, Enterprise Holdings, Inc. Zamora rejected additional excess UM

coverage beyond the limits set forth in Enterprise Holdings’ policy with Ace.

      Florida Statute § 627.727(2) requires insurers to “make available . . . limits

[of excess UM coverage] up to the bodily injury liability limits contained in such

policy or $1 million, whichever is less.” After an uninsured/underinsured motorist

and Zamora were involved in an accident resulting in serious injuries, Zamora

demanded payment. Ace responded that only $100,000 in excess UM coverage

was available.

      The question on appeal is whether Ace complied with § 627.727(2). The

district court granted Ace’s motion for summary judgment and denied Zamora’s,

holding that Ace complied with § 627.727(2) because: (1) Ace offered excess UM

coverage to its named insured, Enterprise Holdings, and (2) the rental car

customer, Zamora, signed a rental agreement accepting the terms of Enterprise

Holdings’ excess UM coverage. On appeal, Zamora contends that the district court

erred because (1) Enterprise Holdings was not the purchaser or renter of the

vehicle and had no “insurable interest,” and (2) § 627.727(2) required Ace to make


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excess UM coverage available to Zamora. After a review of the record, we

affirm.1

                                               I

       To determine whether Ace complied with § 627.727(2), we must address

two distinct but related questions: (1) whether Ace made excess UM coverage

available to Enterprise Holdings, the named insured, and (2) whether, assuming it

had an obligation to do so, Ace made excess UM coverage available to Zamora,

the customer.

                                              A

       “Section 627.727, Florida Statutes, governs the extent to which motor

vehicle liability insurance policies delivered or issued for delivery in Florida must

make uninsured motor vehicle coverage available.” O’Brien v. State Farm Fire &

Cas. Co., 

, 1083 (Fla. Dist. Ct. App. 2009). Neither party disputes

that § 627.727(2) is the applicable provision of the statute here:

       [A]n insurer issuing [an excess motor vehicle] policy shall make
       available as a part of the application for such policy, and at the written
       request of an insured, limits [of excess UM coverage] up to the bodily
       injury liability limits contained in such policy or $1 million, whichever
       is less.




1
 We review the district court’s decision to grant summary judgment de novo. Ellis v. England,

, 1325 (11th Cir. 2005).
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Florida courts have interpreted “make available” in § 627.727(2) as meaning

“to offer,” and we agree. See Nieves v. N. River Ins. Co., 

, 814

(Fla. Dist. Ct. App. 2010).

      Enterprise Holdings, faced with (1) completely rejecting excess UM

coverage, (2) selecting $100,000 of coverage, or (3) selecting $1,000,000 of

coverage, made the second choice. Zamora nonetheless argues, for several

reasons, that Enterprise Holdings could not properly accept the excess UM

coverage offer within the meaning of § 627.727(2).

      First, Zamora argues that § 627.727(2)’s text requires “insurers to

offer or inform the purchaser of a policy (that will become binding and

effective) of the availability of UM coverage[.]” Br. of Appellant at 19

(emphasis added). Because Zamora—not Enterprise Holdings—was the

purchaser or renter of the vehicle, Zamora argues, Ace did not comply with

§ 627.727(2). But § 627.727(2) doesn’t use the terms “purchaser” or

“renter,” and Zamora hasn’t identified any specific portion of § 627.727 that

supports this restrictive interpretation of § 627.727(2). As the district court

noted, several Florida courts have recognized rental car agencies’ right to

reject UM coverage on behalf of other insureds under the policy. See, e.g.,




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Diversified Servs., Inc. v. Avila, 

, 366–367 (Fla. 1992); Kohly

v. Royal Indem. Co., 

, 822 (Fla. 3d DCA 1966).2

       Second, Zamora contends that before an insurer (here, Ace) can make

available excess UM coverage to an insured customer (Zamora), the named

insured (Enterprise Holdings) must have an “insurable interest.” As Zamora

concedes, and the district court noted, Zamora has identified no legal

authority for this proposition. Further, “[t]he majority of courts that have

considered the issue of who may question the lack of an insurable interest

hold that only the insurer can raise the objection of want of an insurable

interest.” Couch on Insurance 3d § 41:5, n. 1 (Dec. 2019 Update) (emphasis

added). Here, it is Zamora—the insured customer—that raises the insurable-

interest objection. Because Florida courts have not, to our knowledge,

applied the insurable-interest doctrine offensively—that is, by the insured

customer, against the insurer—we decline to do so here.

                                          B

       The second question is whether Ace made excess UM coverage

available to Zamora. Zamora signed a rental agreement stating that




2
  Florida courts’ interpretations of other portions of § 627.727 also cast doubt on Zamora’s
argument. The Supreme Court of Florida has concluded, with respect to § 627.727(9), that “a
waiver executed by the named insured electing non-stacking UM coverage is binding on all
insured[.]” Travelers Commercial Ins. Co. v. Harrington, 

, 1114–15 (Fla. 2014).
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“OWNER AND RENTER REJECT ANY ADDITIONAL UM/UIM

COVERAGE TO THE EXTENT PERMITTED BY THE LAW.” This

satisfied § 627.727(2) because Ace offered the insured customer, Zamora,

the opportunity to either (1) accept the $100,000 in excess UM coverage by

signing the rental agreement or (2) opt for higher excess UM coverage by

rejecting the rental agreement. Ace’s offer was entirely compliant with the

manner in which courts have interpreted § 627.727(2), which “require[s] an

excess liability insurer at least to inform its insureds” of the option of

acquiring excess UM coverage. State Farm Fire & Cas. Co. v. Walker, No.

16-cv-14043, 

, at *2 (S.D. Fla. Feb. 28, 2017),

subsequently aff’d, 749 F. App’x 839 (11th Cir. 2018); Tres v. Royal Surplus

Lines Ins. Co., 

, 645 (Fla. 3d DCA 1998) (“[S]ection

627.727(2) . . . only requires an issuer of a non-primary policy to notify an

applicant of the availability of UM coverage.”).

      Zamora’s reliance on Ferreiro v. Philadelphia Indem. Ins. Co., 

(Fla. 3d DCA 2002), is misplaced. In Ferreiro, the plaintiff purchased excess

coverage when she rented a car, but her written policy specifically excluded excess

UM 

. Here, ACE’s policy with Enterprise Holdings,

and the terms incorporated by Zamora in the rental agreement, included excess UM

coverage in the amount of $100,000.


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      Our decision is also consistent with Nieves. In Nieves, the plaintiff

made a claim for excess UM coverage after her husband was killed in an

automobile accident while driving in his employer’s 

. The excess insurer had offered the employer excess UM coverage,

subject to it purchasing a primary policy, but the employer declined to

purchase a primary policy.

Nieves held that the excess

insurer had complied with § 627.727(2), stating that “the insurance company

offered excess UM/UIM coverage to its insured, who simply elected not to

accept it under the terms 

. As in Nieves, here the

excess insurer, Ace, offered excess UM coverage to the named insured,

Enterprise; the named insured simply chose to purchase the lower limit of

the policy. Accordingly, Ace complied with § 627.727(2).

                                      II

      For the foregoing reasons, we conclude that Ace complied with

§ 627.727(2) by making excess UM coverage available both to Enterprise

Holdings and Zamora. We affirm the judgment of the district court.

      AFFIRMED.




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