[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 16

- 1 4981 Non

- Argument Calendar

________________________ D.C. Docket No. 8:14

- cv - 01334

- SDM

- TBM
HIGHLAND HOLDINGS, INC., d.b.a. Highland Homes, Inc

. , Plaintiff

- Appellant,
ROBERT J. ADAMS , Plaintiff

- Counter Defendant ,
versus MID

- CONTINENT CASUALTY COMPANY , Defendant

- Counter Claimant

- A ppellee.

________________________ Appeal from the United States District Court for the Middle District of Flor i d a

________________________ (May 2, 2017) Case: 16-14981 Date Filed: 05/02/2017 Page: 1 of 112 Before MARCUS , WIL LIAM PRYOR and JULIE CARNES , Circuit Judges. PER CURIAM: Highland Holdings, Inc. , a ppeal s the summary judgment in favor of its insurer, M id

- Continent Casualty Company

. Highland sued Mid

- Continent for refusing to indemnify Highland after it settle d a dispute for its alleged infringement of copyrighted house designs

. The district court ruled th at Mid

- Continent owed no duty to indemnify because Highland could not prove how much it paid to settle any claims covered under its commercial general liability insurance policy. We affirm. I. BACKGROUND
In March 2013, Home Design Services, Inc., mailed Highland a letter warning that it s Whitney , Owenburg, Casa Key II, Winchester, and Westin ho use plan s infringed copyrights for architectural designs by Home Design. Home Design demanded that Highland “immediately cease and desist the advertising,

u se, copying, or sale of every one of [ the infringing ] models

. ” Home Design also requested that Highland produce “all documentation identifying the addresses and homeowner of every one of [the five] Models that [it] constructed, or [was] in the process of c onstructing or entering into a contract to construct.” In September 2013, Home Design filed in a Florida court a complaint that Highland had “ infringed . . . copyright s by advertising, designing, constructing, and participating in the construction of one or more residences which were copied

Case: 16-14981 Date Filed: 05/02/2017 Page: 2 of 113 largely or were exact duplicates of” three ho use plan s register ed by Home Design. Home Design identified th e infringing plan s as the Whitney, Owenburg, and Casa Key II

. Home Design sought injunctive and actual damages or, in the alternative, statutory damages. In December 2013, Highland sent the complaint to Mid

Cont inent, which provided a defense. In June 2014, Highland filed in the district court a complaint for a decl aration that it was entitled to indemnification from Mid

- Continent. Mid

Continent had issued a commercial insurance policy to Highland that covered an “advertising injury” incurred between July 1, 2006, and July 1, 2007. Mid

Continent agreed to “pay those sums that [Highland] becomes legally obligated to pay as damages because of ‘personal and advertising injury’ to which this insurance applies.” Section V of the policy defined “Personal and advertising injury” as including an “injury . . . arising out of” the “[i]nfringing upon another’s copyright, trade dress or slogan in your ‘advertisement

. ’” That section also stated that “ ‘ Advertisement ’ means a notice that is broadcast or published to the general public or specific market segments about your goods, pro ducts or services for the purpose of attracting customers or supporters.” The policy excluded from coverage

“‘ P ersonal and advertising injury’ arising out of the infringement of copyright . . . rights,” but that “exclusion [did] not apply to infringement , in your ‘advertisement’, or copyright, trade dress, or slogan

. ” The policy also excluded any

Case: 16-14981 Date Filed: 05/02/2017 Page: 3 of 114 “‘Personal and advertising injury’ caused by or at the direction of the insured with the knowledge that the act would violate the rights of another and would infli ct ‘personal and advertising injury.’” In April 2015, Highland rejected the defense provided by Mid

- Continent and negotiat ed directly with Home Design. The two companies enter ed into a settlement in which Highland , without “admitting [any] liability,” agre ed to pay $650,000 “as full and final settlement of all claims raised or that could have been
raised in the Suit , as more particularly described ” in Exhibit B to the agreement. Exhibit B listed more than 300 homes that Highland built of the Whitney, Owenburg, Casa Key, Casa Key II, Winchester, and Westin ho us e plan s and their sales prices , which ranged from bel ow $100,000 to almost $ 300 ,000

. Highland amended its complaint against Mid

- Continent to add a claim for breach of contract f o r its failure to i ndemnify Highland . Mid

- Continent answer ed and counterclaim ed for a declarat ory judgment that its policy did not cover any “advertising injury” incurred after the policy period and that it had no duty to indemnify because Highland failed to allocate its damages among covered and

non - covered claim s. Highland admitted in its reply that it began advertising the Whitney ho us e plan on December 15, 2007 , which was after the effective date of the policy. I n response to interrogatories, Highland also admitted that “[t]he settlement amount was not apportioned.”

Case: 16-14981 Date Filed: 05/02/2017 Page: 4 of 115 Mid

- Continent deposed Neil O’Toole, personal counsel for Highland, and its executive vice

- president, David Joel Adams. O’Toole testified that the settlement

“ was a negotiated lump sum , ” which “included a n unspecified amount attributable to HDS’ claims of injunctive relief” and “all claims of attorneys’ fees.” He stat ed that the Westin and Winchester plan s “were never a part of the lawsuit,” yet they were included in the settlement agreement . O’Toole also testified that Highland did “not build homes until [it had] people who have signed the contract to buy them” and “it almost verges on idiotic that we would have to somehow prove that a person who bought the home looked at the layout before they bought it.” O’Toole and Adams acknowledged that the Whitney plan was not covered under the insurance policy. Adams testified that Highland “continued to market” the Casa Key II, Owenburg, and Whitney plans and “ to move forward in the case” until September 2014. After both parties mo ved for summary judgment, the district court granted summary judgment in favor of Mid

- Continent. The district court ruled that Mid

Continent owed no duty to indemnify Highland f or the full sum paid because the settlement agreement reso lved “all claims” against Highland , not just “advertising injuries.” The agreement settled non - covered claims “ of [Highland] creat ing a schematic plan .

. . [and] construct ing a home based on a copyrighted design” and claims that were excluded from coverage because they involved knowingly

Case: 16-14981 Date Filed: 05/02/2017 Page: 5 of 116 caus ing “advertising injur ies ” after receiving the cease and desist order. The district court rejected the arguments of Highland that a schematic plan was an advertisement and that buyers invariably sa w an advertisement before approving construction. The district court also ruled that Highland could not rec over for any

c laims of “ advertising injury” that were covered. T he district court explaine d that
t he settlement agreement “contain[ed] neither a sche dule of amounts allocated to settling each claim nor any other indication of how Highland Holdings and Home Design chose $650,000

. ” The district court ruled that the estimation by Highland “assume[d] that the settling parties assigned the same value to eac h home” despite the va riation in their sales prices ; “fail[ed] to account for the many acts[] other than advertising . . . that allegedly infringed Home Design’s copyrights”; and “fail[ed] to subtract” non - covered and excluded claims. II. STANDARD OF REVIE W We review a summary judgment de novo

. Hyman v. Nationwide Mut. Fire
Ins. Co. , 304 F.3d 1179, 1185 (11th Cir. 2002)

. Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). III. DISCUSSION Highland contends that it is entitled to indemnification from Mid

- Continent. Highland argues that “the ‘layouts’ or ‘schematic plans’” are “advertisements[]

Case: 16-14981 Date Filed: 05/02/2017 Page: 6 of 117 because their very purpose was to broadcast [its] product (houses) to the public . . . and attract customers.” Highland argues that its entire liability “aris[es] out of ” a covered advertising injury. A lternatively, Highland argues that it provided “a straightforward, logical, and simple method of allocating the settlement between damages.” These arguments fail.
A schematic pl an by itself is not an “advertisement” under the Mid

Continent insurance policy. The Oxford English Dictionary defines “s chematic ” as a “diagrammatic representation,” Schematic , The Oxford English Dictionary (online ed.), and “ plan ” as “a drawing, sketch, or diagram . . . showing the layout of a building or one floor of a build ing , ” Plan , id. A drawing that show s the layout of a house does not provide “notice .

. . about [the] products or services” provid ed by a homebuilder . And a schematic plan may be used for more practical purposes than “ attract ing customers.” As stated aptly by the district court , “[a]lthough an advertisement might feature a schematic plan and although a prudent purchaser of a home would review a schematic plan before authorizing construction , a schematic plan . . . is not an advertisement.” Hig hland failed to establish a causal connection between its infringement of the copyright s for ho use design s and its advertising that would warrant indemnification for every claim that it settled with Home Design. The insurance policy states that Mid

- Contine nt will indemnify Highland for “damages because of

Case: 16-14981 Date Filed: 05/02/2017 Page: 7 of 118 . . . ‘advertising injury, ’ ” which is an “injury . . . arising out of” the “[i]nfringing upon another’s copyright, trade dress or slogan in your ‘advertisement.’” Not all of the damages claimed by Highland were “advertising injuries.” That is, not all “ t he injur [ies] for which coverage [was] sought [was] caused by the advertising itself

. ” Microtec Research, Inc. v. Nationwide Mut. Ins. Co. , 40 F.3d 968, 971 (9 th Cir. 1994) (interpreting an insurance policy defining “advertising injury” as “arising out of .

. . [i]nfringement of copyright”) (quoted in Hyman , 304 F.3d at 1191 ). The settlement agreement resolved claims about “designing” house plans that infringed the copyright s and “constructing, and participating in the construction” of homes that infringed the copyrights. Highland argues that “common sense ” and O’Toole’s testimony establishe d that “ each customer looked at the floor plan before purchasing a home,” but reviewing a floor plan is not the same as seeing an advertisement containing a copyright

- infringing plan. I t is equally plausible that a customer, as the district court stated, “view [ed] the ‘layout’ of a home” when

“ consulting Highland Holdings in person or visiti ng a model home.” That, as Highland argues, “a model home . . . or houses being constructed and after completion[] can be used as advertisements” does not affect our conclusion

. “Simply selling an infringing product is not sufficient to satisfy the causal connection.” Hyman , 304 F.3d at 1192. H ighland offered no evidence that it caused “advertising injury” by using its infringing models or houses to market its

Case: 16-14981 Date Filed: 05/02/2017 Page: 8 of 119 business like the h omebuilders in Kirk King v. Cont inental W estern Ins urance Co. , 123 S.W.3d 259 (Mo. Ct. App. 2003) , and Mid

- Continent Casualty Co. v. Kipp Flores Architects, LLC , 602 F. App ’ x 985 (5th Cir. 2015)

. Th os e builders caused “advertising injury” by opening model homes, Kipp Flores , 602 F. App’x at 992, 994, and by plac ing sign s in front of copyright

- infringing houses during their construction , id. ; Kirk King , 123 S. W .3d at 262

– 63 , 265

– 6 7

. Advertising injury may occur if there are signs identifying the homebuilder that “accompan[ y] the home construction ,” Kirk King , 123 S. W .3d at 267 , but Highland d id not prov e that it marketed its elf in that manner. Nor did Highland prove , as did the builder in Kipp Flores , that its “primary m eans of marketing its construction business was through the use of [its] homes,” 602 F. App’x at 994. It is undisputed that Highland constructed homes that infringed on house designs copyrighted by Home Designs, but “in isolation . . . home construction is not advertising , ” Kirk King , 123 S.W.3d at 265

. See Hyman , 304 F.3d at 1192 (“[T]he infringement must be committed in an advertisement rather than in the sale of a product in order to be covered.”). Highland failed to connect its construction of copyright

- infring ing homes to its advertising

. Highland failed to prove what amount of its settlement was attributable to the claims of advertising injury that were covered by its insurance policy. Highland

“ had the burden

. . . to apportion damages and show that t he settlement, or portions

Case: 16-14981 Date Filed: 05/02/2017 Page: 9 of 1110 thereof, represented costs that fell within the coverage provisions of the policy .” See Keller Indus., Inc. v. Employers Mut. Liab. Ins. Co. of Wis

. , 429 So. 2d 779, 780 (Fla. Dist. Ct. App. 1983)

. Highland proposes to allocate i ts settlement payment b y dividing it among the number of homes constructed using an infringing house plan, but its “ advertising injury ” must necessarily be a lesser
amount. Highland fails to account for reimbursing Home Design for its attorney’s fees or for the advertising injuries that were excluded from coverage for being knowingly caused after Highland receiv ed the cease and desist letter from Home Design

. See id. (affirming the denial of damages attributable to claims excluded under the insurance poli cy ). As the district court explained, H ighland also fail s to “account for the many acts . . . such as creating a schematic plan based on a copyrighted design and constructing a home . . . . that allegedly infringed Home Design’s copyrights. ” Highland faile d to satisfy its burden to determine what part of the settlement amount was attributable to its covered claims

. The district court did not err by entering summary judgment in favor of Mid

Continent and denying the motion filed by Highland

. Highland failed to prove, as it was required to do, that each claim that it settled with Home Design was an “advertising injury” under the Mid

- Continent insurance policy. See E. Fla

. Hauling, Inc. v. Lexington Ins. Co. , 913 So. 2d 673, 678 (Fla. Dist. Ct. App. 2005)

. And Highland failed to prove what portion of the settlement amount was

Case: 16-14981 Date Filed: 05/02/2017 Page: 10 of 1111 attributable to the claims of advertising injury that were covered under its insurance policy. See Keller , 429 So. 2d at 780

. IV. CONCLUSION
W e AFFIRM the summary judgment in favor of Mid

- Continent

. Case: 16-14981 Date Filed: 05/02/2017 Page: 11 of 11