             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                                                        [DO NOT PUBLISH]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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