Unpublished Eleventh Circuit opinion affirms Florida excess insurance carriers’ “substantial compliance” with UM coverage requirement is sufficient to avoid liability


By: Jessica Cauley

On January 27, 2022, the Eleventh Circuit filed an unpublished opinion interpreting Florida law to the benefit of insurance carriers who provide umbrella UM coverage. The Circuit Court held that insurance carriers’ responsibility under Fla. Stat. 627.727(2), to make umbrella UM coverage available to insureds, does not require strict compliance. Rather, courts are satisfied with “substantial compliance” with the statute, resulting in less liability exposure. 

The case at issue found that Geico failed to make umbrella UM coverage available to an insured upon the transfer of her policy from New Jersey to Florida. Later at the time of policy renewal, Geico did offer umbrella UM coverage, which the insured rejected. Within the new policy period, Plaintiff was unfortunately injured in an accident and her subsequent claim for umbrella UM coverage was denied, resulting in litigation. The federal courts found that while Geico did not substantially comply with section 627.727(2) upon the policy transfer to Florida and during the first Florida policy period, it did comply for the second policy period wherein the accident occurred. Geico’s “substantial compliance” with the law was fulfilled by the offer at the time of renewal due to the timing of the car accident in the second policy period. Thus, summary judgment in favor of the excess insurer was appropriate. 

It is imperative that excess insurance carriers make all efforts to wholly comply with Fla. Stat. § 627.727(2)’s requirements. However, the interpretation by the federal courts in this matter encourages excess insurers to remedy any errors that may inadvertently occur upon first notification that an insured has not been properly offered umbrella UM coverage, potentially without liability exposure for the error. Lapham v. Gov’t Emples. Ins. Co., No. 8:19-cv-02016-CEH-AAS, 2022 U.S. App. LEXIS 2602 (11th Cir. Jan. 27, 2022). Depending on the factual circumstances, excess carriers may be able to eliminate, or at least lessen liability exposure, where they show substantial compliance with the Florida statute as illustrated above. 

For further information or inquiries please contact Jessica Cauley at or FMG’s Insurance Coverage Team for any assistance in understanding and complying with Florida’s statutes and requirements for primary and excess insurance carriers.