[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-13304

Non-Argument Calendar

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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

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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 injury 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’ crossmotion 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 badfaith 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. 

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