NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
STATE FARM AUTOMOBILE )
INSURANCE COMPANY, )
)
Appellant, )
)
v. ) Case No. 2D17-1014
)
MARIELLE LYDE, )
)
Appellee. )
)
Opinion filed October 5, 2018.
Appeal from the Circuit Court for
Hillsborough County; William P.
Levens, Judge.
Anthony J. Russo and James Michael
Shaw, Jr., of Butler Weihmuller Katz
Craig, LLP, Tampa; and Robert L.
Kaleel of Kaleel & Kaleel, P.A., St.
Petersburg, for Appellant.
David M. Caldevilla of de la Parte &
Gilbert, P.A., Tampa; and Anthony D.
Martino of Clark & Martino, P.A.,
Tampa, for Appellee.
ROTHSTEIN-YOUAKIM, Judge.
State Farm Automobile Insurance Company (State Farm) appeals the final
summary judgment requiring it to pay the higher of the two limits for uninsured motorist
coverage (UM coverage) provided in the identical policies issued on Marielle Lyde's (the
daughter) vehicle and Margarita Nieves's (the mother) vehicle in connection with injuries
that the daughter sustained while driving her vehicle in a crash with an uninsured
motorist. State Farm argues that the trial court erred in disregarding an exclusion for
UM coverage under the mother's policy authorized under section 627.727(9), Florida
Statutes (2012). As explained below, we agree, reverse the final summary judgment
and the order granting the daughter's motion for summary judgment, and remand for
further proceedings consistent with this opinion.
I. Background
The mother and daughter reside together. The mother owns a Kia
Sorento, and the daughter owns a Kia Soul. State Farm issued an insurance policy for
the mother's vehicle that lists the mother as the only named insured on the declarations
page and that has a UM coverage limit of $100,000 per person. State Farm also issued
an insurance policy for the daughter's vehicle that lists both the daughter and mother as
named insureds on the declarations page and that has a UM coverage limit of $25,000
per person.
Apart from the amounts of coverage and the named insureds, the policies
are identical versions of State Farm Policy Form 9810A. Many of the terms used in the
policy are terms of art defined in the policy itself.1 In the general provisions, State Farm
1"You or Your" means, in pertinent part, "the named insured or named
insureds shown on the Declarations Page." The mother is "you" under the mother's
policy.
"Resident Relative" means, in pertinent part, "a person, other than you,
who resides primarily with the first person shown as a named insured on the
Declarations Page and who is [ ] related to that named insured . . . by blood, marriage,
or adoption[.]" The daughter is a "resident relative" under the mother's policy.
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agrees to provide insurance according to the terms of this policy based, in part, "on
payment of premium for coverages chosen." In the applicable UM coverage section,
the "Insuring Agreement" provides, "We will pay compensatory damages for bodily
injury an insured is legally entitled to recover from the owner or driver of an uninsured
motor vehicle" and specifies that the "bodily injury for which we will pay compensatory
damages must be," in pertinent part, "sustained by an insured" and "caused by an
accident that involves the operation, maintenance, or use of an uninsured motor
vehicle." The "Exclusions" section, however, provides, in pertinent part, that "THERE IS
NO COVERAGE . . . 2. FOR AN INSURED WHO SUSTAINS BODILY INJURY . . . a.
WHILE OCCUPYING A VEHICLE OWNED BY YOU OR ANY RESIDENT RELATIVE IF
IT IS NOT YOUR CAR OR A NEWLY ACQUIRED CAR." One of the sections that
follows is titled "If Other Uninsured Motor Vehicle Coverage Applies," and provides, in
pertinent part:
1. If Uninsured Motor Vehicle Coverage provided by
this policy and one or more other vehicle policies issued to
you or any resident relative by the State Farm Companies
apply to the same bodily injury, then:
a. the Uninsured Motor Vehicle
Coverage limits of such policies will not be
added together to determine the most that may
be paid; and
b. the maximum amount that may be
paid from all such policies combined is the
single highest applicable limit provided by any
"Your Car" means, in pertinent part, "the vehicle shown under 'YOUR
CAR' on the Declarations Page." The Sorento is "your car" under the mother's policy.
"Owned By" means "1. owned by; 2. registered to; or 3. leased[.]"
The UM coverage section also provides an additional definition of
"Insured," to mean, in pertinent part, "1. you[, and] 2. resident relatives[.]
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one of the policies. We may choose one or
more policies from which to make payment.
In May 2013, the daughter was driving her vehicle when she was involved
in a crash with an uninsured motorist. State Farm tendered $25,000 as the limit for UM
coverage on the daughter's policy. The daughter filed the underlying action against
State Farm, seeking, in pertinent part, declaratory relief and damages for breach of
contract. She claimed that she is an insured under both her policy and her mother's
policy and that she is therefore eligible for UM coverage under both policies. She
further claimed that under subsection 1.b. of the section titled "If Other Uninsured Motor
Vehicle Coverage Applies," she was entitled to claim the higher UM coverage limit
under the two policies. Thus, she claimed that she was entitled to the $100,000 limit
under the mother's policy and that State Farm had wrongfully denied her UM benefits in
excess of the $25,000 limit under her policy.2
State Farm admitted that the daughter was an insured under both policies
and that she was entitled to UM coverage under her policy, but it denied that she was
entitled to UM coverage under the mother's policy. In its operative third affirmative
defense, State Farm asserted that the mother's policy provides for "non-stacking" UM
coverage "pursuant to the named insured's execution of the Selection/Rejection Form
giving rise to a conclusive presumption of a knowing informed rejection of stacking
2In the operative complaint, the daughter purported to attach a copy of her
policy as Exhibit A, but she instead attached a copy of a signed "Florida Uninsured
Motor Vehicle Coverage - Selection/Rejection" form (Selection/Rejection Form)
pertaining to her policy. The daughter, however, did not refer to the Selection/Rejection
Form in her complaint.
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coverage under Florida Statute § 627.727(9)."3 State Farm further asserted that the
daughter was excluded from UM coverage under the mother's policy based on
exclusion 2.a. because she was occupying a vehicle that the daughter owned, not the
Sorento identified on the declaration's page of the mother's policy. State Farm also
claimed that the daughter's reliance on the "If Other Uninsured Motor Vehicle Coverage
Applies" provision is misplaced because UM coverage does not apply on the mother's
policy. Rather, as provided by section 627.727(9) and the Selection/Rejection Form,
that provision applies when occupying a motor vehicle "not in the household or owned
by a resident relative."
After filing its answer and affirmative defenses, State Farm moved for
summary judgment, again conceding the daughter's entitlement to $25,000 in UM
benefits under her policy but contending that she and her mother both had knowingly
rejected "stacking" coverage under both her policy and her mother's policy, as reflected
on the three Selection/Rejection Forms that State Farm attached to the motion and that
State Farm claimed had been approved by the Office of Insurance Regulation (OIR).
Thus, State Farm asserted, consistently with section 627.727(9)(b), the UM coverage
exclusion under 2.a.—for bodily injury that an insured sustains while occupying a vehicle
owned by a resident relative that was not "your car" or a newly acquired car—precluded
the daughter from recovering under the mother's policy.
The daughter did not formally respond to the motion but instead filed her
own motion for summary judgment. Relying on the provision of the policy that governs
3State Farm did not identify by date of signing the Selection/Rejection
Form to which it referred.
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"If Other Uninsured Motor Vehicle Coverage Applies," the daughter argued that she was
entitled to the $100,000 under the mother's policy because she was an insured under
both policies. The daughter argued further that exclusion 2.a. was not consistent with
627.727(9) and was therefore contrary to public policy. Alternatively, the daughter
argued that even if the exclusion were valid, reading it in conjunction with the "If Other
Uninsured Motor Vehicle Coverage Applies" provision created ambiguity in the contract
that required construction in her favor and allowed her to recover the $100,000 under
the mother's policy. The daughter's motion made no mention of any "application" or
Selection/Rejection Form.
In addition to the daughter's and the mother's policies and declarations
pages, the summary judgment evidence before the trial court included the three
Selection/Rejection Forms that State Farm had filed with its motion for summary
judgment: one for the mother's policy signed on September 14, 2010;4 one for the
daughter's policy signed on August 19, 2011; and another for the daughter's policy
signed on April 4, 2012.5 The template for those three forms was identical, and State
Farm also filed a September 24, 2010, letter from OIR approving that template. State
Farm also filed the affidavit of Kristin Spencer, the Florida underwriter for its automobile
policies. Spencer averred, among other things, that the mother had signed another
Selection/Rejection Form on April 2, 2012, which "has been separately filed with the
Court," and that "[a]t all times, the language in the Selection/Rejection Form has been
4This 2010 form pertained to a 2007 Kia Sportage. The record indicates
that the policy on the Sportage was later transferred to the Sorento.
5The April 4, 2012, form was the same form that the daughter had
attached to her operative complaint.
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approved by the State of Florida." Contrary to her averment, however, only the
mother's September 14, 2010, Selection/Rejection Form had been filed, and no other
version of it was subsequently filed.
After receiving State Farm's response in opposition to the daughter's
motion, the trial court granted the daughter's motion and denied State Farm's motion.
The court explained:
There is, at the very least, ambiguity within the
insurance policy contract. The defense argues that the
Exclusions section on page 28, which states "There is no
coverage for an insured who sustains bodily injury while
occupying a vehicle owned by you or any resident relative if
it is not your car . . . ", along with the non-stacking coverage
in this case, precludes coverage from the Plaintiff's mother's
UM policy.
But the more persuasive argument from Plaintiff's
counsel is found in the policy section on page 29 entitled If
Other Uninsured Motor Vehicle Coverage Applies. This is
not a stacking vs. non-stacking case because the Plaintiff
seeks "either/or" rather than "both/and".
Therefore, the trial court determined that the daughter "is entitled to the highest
applicable limits of coverage available between the two UM policies for which she is an
insured, to wit: $100,000." State Farm timely appeals the trial court's final judgment
awarding the daughter $75,000.
II. Discussion
State Farm argues that the trial court erred in granting the daughter's
motion for summary judgment because the unambiguous language of the mother's
policy excludes the daughter from UM coverage in this circumstance and, therefore,
rendered the election clause under "If Other Uninsured Motor Vehicle Coverage
Applies" inapplicable. State Farm also argues that the policy exclusion was an
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authorized limitation that complies with section 627.727(9). While we agree with these
arguments, we disagree with State Farm's argument that the trial court erred in denying
its motion for summary judgment and that we should remand for entry of a final
summary judgment in its favor. Rather, we decline to address the parties' arguments
regarding the Selection/Rejection Form and simply remand for further proceedings. We
review de novo the trial court's ruling on the parties' motions for summary judgment and
its construction of the insurance contract and the statute. See State Farm Mut. Auto.
Ins. Co. v. Smith, 198 So. 3d 852, 855 (Fla. 2d DCA 2016), review denied, No. SC16-
1682 (Fla. Jan. 18, 2017); Fla. Peninsula Ins. Co. v. Cespedes, 161 So. 3d 581, 584
(Fla. 2d DCA 2014).
A. The Policy
Courts generally construe an insurance policy in accordance with its plain
language as bargained for by the parties. See Auto-Owners Ins. Co. v. Anderson, 756
So. 2d 29, 34 (Fla. 2000). In so doing, "courts should read each policy as a whole,
endeavoring to give every provision its full meaning and operative effect." Cespedes,
161 So. 3d at 584 (quoting Wash. Nat'l Ins. Corp. v. Ruderman, 117 So. 3d 943, 948
(Fla. 2013)). But "[i]f the relevant policy language is susceptible to more than one
reasonable interpretation, one providing coverage and the other limiting coverage, the
insurance policy is considered ambiguous." Id. (quoting Anderson, 756 So. 2d at 34). If
ambiguous, "[t]he court interprets ambiguous provisions 'liberally in favor of the insured
and strictly against the drafter.' " N. Pointe Cas. Ins. Co. v. M & S Tractor Servs., Inc.,
62 So. 3d 1281, 1283 (Fla. 2d DCA 2011) (quoting State Farm Mut. Auto. Ins. Co. v.
Fischer, 16 So. 3d 1028, 1031-32 (Fla. 2d DCA 2009)). When the ambiguity arises
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regarding an exclusion clause, courts construe them "even more strictly against the
insurer than coverage clauses." Anderson, 756 So. 2d at 29.
Under the UM provision of the mother's insurance policy, State Farm
generally agrees to pay compensatory damages for bodily injury an insured is legally
entitled to recover. The daughter is an "insured" under the mother's policy because, as
the parties agree, she is a resident relative. Here, however, under an applicable
exclusion, the daughter is not "covered" under the UM provision in the mother's policy.
That exclusion provides, "THERE IS NO COVERAGE . . . FOR AN INSURED"—which is
the daughter, as a resident relative—"WHO SUSTAINS BODILY INJURY [ ] WHILE
OCCUPYING A VEHICLE OWNED BY . . . ANY RESIDENT RELATIVE . . . IF IT IS
NOT YOUR CAR," which invokes the exclusion because the resident-relative daughter
was occupying her own vehicle while injured and because the mother's Sorento is the
only vehicle listed on the mother's declarations page. Under the plain language of the
exclusion, therefore, and as argued in State Farm's motion for summary judgment and
on appeal, there is no UM coverage here for the daughter under the mother's policy.
Consequently, the daughter's reliance on the "If Other Uninsured Motor
Vehicle Coverage Applies" provision is misplaced, and the trial court erred in granting
her motion for summary judgment and denying State Farm's motion for summary
judgment on this basis, because that provision presumes that UM coverage applies
under two or more policies.6 Nothing in this provision expands the applicability of UM
coverage in the mother's policy; rather, it speaks to the maximum amount that may be
6Notably, the provision refers to other UM "coverage," not other UM
"insurance."
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paid when UM coverage under two or more policies otherwise applies. See Akel v.
Dorcelus, 793 So. 2d 1049, 1052 (Fla. 4th DCA 2001) ("The election clause only applies
if coverage is otherwise available. Obviously, the insured can only elect which
coverage to receive if there are two policies under which the insured may recover
benefits. In the instant policy, not only is the brother's vehicle excluded from the
definition of an uninsured vehicle, but the policy states twice that UM coverage is not
provided for bodily injury sustained while occupying a motor vehicle owned by the
named insured or a resident relative which is not a vehicle listed in the policy
declarations. There was no coverage under the insured's UM policy provisions;
therefore, there was no election to be made."). Here, UM coverage applies under only
one policy: the daughter's policy. Thus, this provision does not inform the meaning of
the exclusion, nor does it render the exclusion ambiguous—we simply do not get to it.
B. Compliance with the Statute
We also agree with State Farm that this policy exclusion is statutorily
authorized, and we reject the daughter's argument to the contrary.7 Historically, UM
coverage follows the person, not the vehicle, so as to afford that person protection
notwithstanding the particular circumstances resulting in the injury. See, e.g., Coleman
v. Fla. Ins. Guar. Ass'n, 517 So. 2d 686, 689 (Fla. 1988) ("[UM] protection does not
7Although the trial court did not expressly address the daughter's
argument in her motion for summary judgment on this point, we are bound to address it
because we must consider any basis in the record that could support affirmance, see
Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999) ("[I]f a trial
court reaches the right result, but for the wrong reasons, it will be upheld if there is any
basis which would support the judgment in the record." (emphasis added)), and
because it merely requires us to review the policy language that was before the trial
court in considering summary judgment.
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inure to a particular motor vehicle, but instead protects the named insured or insured
members of his family against bodily injury inflicted by the negligence of any uninsured
motorist under whatever conditions, locations, or circumstances any of such insureds
happen to be in at the time."); Mullis v. State Farm Mut. Auto. Ins. Co., 252 So. 2d 229,
233 (Fla. 1971) ("Whenever bodily injury is inflicted upon named insured or insured
members of his family by the negligence of an uninsured motorist, under whatever
conditions, locations, or circumstances, any of such insureds happen to be in at the
time, they are covered by uninsured motorist liability insurance . . . ."), superseded by
statute as recognized in Gov't Emps. Ins. Co. v. Douglas, 654 So. 2d 118, 120 (Fla.
1995). The legislature, however, has since statutorily authorized certain limitations on
this general application, see § 627.727(9); Douglas, 654 So. 2d at 120 ("Pursuant to . . .
section 627.727(9)(d), Florida Statutes (1987), insurers could issue motor vehicle
liability insurance policies which contained limited uninsured motorist coverage."); see
also Young v. Progressive Se. Ins. Co., 753 So. 2d 80, 85 (Fla. 2000) ("[S]ection
627.727(9) . . . provides a list of statutorily permissible policy exclusions to uninsured
motorist coverage."), but "provisions in uninsured motorist policies that provide less
coverage than required by the statute are void as contrary to public policy," Young, 753
So. 2d at 83.
"Determining whether a policy provision extends less coverage than
required by section 627.727 begins with the language of the statute," Smith, 198 So. 3d
at 858 (citing Travelers Commercial Ins. Co. v. Harrington, 154 So. 3d 1106, 1111 (Fla.
2014)), which provides, in pertinent part:
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Insurers may offer policies of uninsured motorist coverage
containing policy provisions, in language approved by the
office, establishing that if the insured accepts this offer:
(a) The coverage provided as to two or
more motor vehicles shall not be added
together to determine the limit of insurance
coverage available to an injured person for any
one accident, except as provided in paragraph
(c).
(b) If at the time of the accident the
injured person is occupying a motor vehicle,
the uninsured motorist coverage available to
her or him is the coverage available as to that
motor vehicle.
(c) If the injured person is occupying a
motor vehicle which is not owned by her or him
or by a family member residing with her or him,
the injured person is entitled to the highest
limits of uninsured motorist coverage afforded
for any one vehicle as to which she or he is a
named insured or insured family member.
Such coverage shall be excess over the
coverage on the vehicle the injured person is
occupying.
(d) The uninsured motorist coverage
provided by the policy does not apply to the
named insured or family members residing in
her or his household who are injured while
occupying any vehicle owned by such insureds
for which uninsured motorist coverage was not
purchased.
(e) If, at the time of the accident the
injured person is not occupying a motor
vehicle, she or he is entitled to select any one
limit of uninsured motorist coverage for any
one vehicle afforded by a policy under which
she or he is insured as a named insured or as
an insured resident of the named insured's
household.
In connection with the offer authorized by this
subsection, insurers shall inform the named insured,
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applicant, or lessee, on a form approved by the office, of the
limitations imposed under this subsection and that such
coverage is an alternative to coverage without such
limitations. If this form is signed by a named insured,
applicant, or lessee, it shall be conclusively presumed that
there was an informed, knowing acceptance of such
limitations . . . .
§ 627.727(9).
By limiting UM coverage to the coverage available as to the vehicle
involved and by precluding coverage for injuries sustained while occupying a vehicle for
which UM coverage was not purchased, subsections 627.727(9)(b) and (d) permit
departure from the general principle, see Coleman, 517 So. 2d at 689; Mullis, 252 So.
2d at 233, that UM coverage applies to the person.8 The exclusion in the mother's
policy precludes, in pertinent part, UM coverage for an insured who is injured while
occupying a vehicle that either the mother or the insured owns but is not the mother's
Sorento, which is the only vehicle for which UM coverage was purchased under the
mother's policy. In short, the exclusion complies with the statute because the mother's
vehicle was the only household vehicle for which the mother paid a premium under her
policy. See § 627.727(9); see also Swan v. State Farm Mut. Auto. Ins. Co., 60 So. 3d
514, 518 (Fla. 3d DCA 2011) (explaining that under the limitations provided in section
627.727(9), "UM coverage does not provide coverage for every vehicle that the insured
owns—it only provides coverage for the vehicle on which the UM premium was paid");
Akel, 793 So. 2d at 1053 ("Subsection (9)(d) provides that an insurance company may
exclude coverage for insureds or family members residing in the household, who are
8By
its clear terms, subsection (9)(c) does not apply here because the
daughter was indisputably occupying her own vehicle at the time of the injury, and we
are unpersuaded by the daughter's tortured reading of that subsection to assert
otherwise.
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injured while occupying any vehicle owned by such insured for which uninsured motorist
coverage was not purchased. The contemplation of this subsection is to exclude
coverage under the uninsured motorist provisions of a particular policy when injury is
suffered in a vehicle to which the particular policy does not apply.").
C. The Selection/Rejection Form
In its motion for summary judgment, State Farm relied solely on the
mother's 2010 Selection/Rejection Form in attempting to satisfy its burden of proving the
nonexistence of a genuine issue of material fact that would entitle it to the conclusive
presumption that the mother had made an informed, knowing acceptance of limited
coverage under section 627.727(9). See Larusso v. Garner, 888 So. 2d 712, 717 (Fla.
4th DCA 2004) ("Without approval of the form, SGI is not entitled to the conclusive
presumption of knowing acceptance."); Omar v. Allstate Ins. Co., 632 So. 2d 214, 216
(Fla. 5th DCA 1994) (holding that an insurer relying on the limitation authorized in
section 627.727(9) has the burden of proving its compliance with the notice provisions);
Gov't Emp. Ins. Co. v. Douglas, 627 So. 2d 102, 103 (Fla. 4th DCA 1993) (holding that
the section 627.727(9)(d) exclusion did not apply because the insurer failed to comply
with the notice requirement of obtaining a knowing acceptance of the subsection (9)(d)
limitation), approved, 654 So. 2d 118 (Fla. 1995). In addition, the daughter raises new
arguments for the first time on appeal that are based on the Selection/Rejection Form,
but the daughter's motion for summary judgment omitted even a mention of such a
form, which she also characterizes as an insurance policy "application."
We decline to address the parties' arguments regarding the
Selection/Rejection Forms for the first time on appeal, either as grounds for reversal or
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as grounds for affirmance under the tipsy coachman doctrine. See Loranger By &
Through Loranger v. State, Dep't of Transp., 448 So. 2d 1036, 1038 (Fla. 4th DCA
1983) (on rehearing) (rejecting appellee's argument that court should affirm because
summary judgment was correct for the wrong reason because appellee raised new
reason for the first time on appeal and court was "not certain precisely what legal and
factual issues may arise if and when the trial court is presented with an appropriate
pleading raising the issue"); see also Ambroglio v. McGuire, 247 So. 3d 73, 75 (Fla. 2d
DCA 2018) ("It is reversible error to enter summary judgment on a ground not raised
with particularity in the motion for summary judgment."); cf. State Farm Fire & Cas. Co.
v. Levine, 837 So. 2d 363, 365 (Fla. 2002) (explaining that tipsy coachman doctrine
permits a reviewing court to affirm a lower tribunal's decision that reaches the right
result for the wrong reason so long as "there is any basis which would support the
judgment in the record" (quoting Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So.
2d 638, 644-45 (Fla. 1999))). In the affidavit that State Farm filed in support of its
motion for summary judgment, Spencer averred that on April 2, 2012, the mother had
signed a second Selection/Rejection Form that applies to the Sorento and that the April
2, 2012, form was an OIR-approved form. But contrary to her further averment that the
April 2, 2012, form had previously been filed with the court, it does not appear to ever
have been filed. Thus, what is apparently the operative OIR-approved
Selection/Rejection Form applicable to the Sorento is not a part of the record, and
neither party, below or on appeal, has addressed its existence.
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III. Conclusion
Accordingly, we reverse the final summary judgment and the portion of the
trial court's order granting the daughter's motion for summary judgment because the
unambiguous language of the mother's policy excluded the daughter from UM coverage
and complied with section 627.727(9). In so doing, we neither address the parties'
arguments regarding the Selection/Rejection Form nor reverse the denial of State
Farm's motion for summary judgment but simply remand for further proceedings
consistent with this opinion.
Reversed and remanded.
LaROSE, C.J., and SILBERMAN, J., Concur.
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