[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 16-14981

Non-Argument Calendar

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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 -

Appellee.

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Appeal from the United States District Court

for the Middle District of Florida

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(May 2, 2017)

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Before MARCUS, WILLIAM PRYOR and JULIE CARNES, Circuit Judges.

PER CURIAM: 

Highland Holdings, Inc., appeals the summary judgment in favor of its 

insurer, Mid-Continent Casualty Company. Highland sued Mid-Continent for 

refusing to indemnify Highland after it settled a dispute for its alleged infringement 

of copyrighted house designs. The district court ruled that 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 its Whitney, Owenburg, Casa Key II, Winchester, and Westin house

plans infringed copyrights for architectural designs by Home Design. Home 

Design demanded that Highland “immediately cease and desist the advertising, 

use, 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 constructing or entering into a contract to construct.”

In September 2013, Home Design filed in a Florida court a complaint that 

Highland had “infringed . . . copyrights by advertising, designing, constructing, 

and participating in the construction of one or more residences which were copied 

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largely or were exact duplicates of” three house plans registered by Home Design. 

Home Design identified the infringing plans 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 MidContinent, which provided a defense.

In June 2014, Highland filed in the district court a complaint for a 

declaration that it was entitled to indemnification from Mid-Continent. MidContinent had issued a commercial insurance policy to Highland that covered an 

“advertising injury” incurred between July 1, 2006, and July 1, 2007. MidContinent 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, products or services for the 

purpose of attracting customers or supporters.” The policy excluded from coverage 

“‘Personal 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 

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“‘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 inflict 

‘personal and advertising injury.’”

In April 2015, Highland rejected the defense provided by Mid-Continent and 

negotiated directly with Home Design. The two companies entered into a 

settlement in which Highland, without “admitting [any] liability,” agreed 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 house plans and their 

sales prices, which ranged from below $100,000 to almost $300,000.

Highland amended its complaint against Mid-Continent to add a claim for 

breach of contract for its failure to indemnify Highland. Mid-Continent answered

and counterclaimed for a declaratory 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 claims. Highland admitted in its reply that it began advertising the 

Whitney house plan on December 15, 2007, which was after the effective date of 

the policy. In response to interrogatories, Highland also admitted that “[t]he 

settlement amount was not apportioned.”

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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 an unspecified amount attributable 

to HDS’ claims of injunctive relief” and “all claims of attorneys’ fees.” He stated 

that the Westin and Winchester plans “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 moved for summary judgment, the district court granted 

summary judgment in favor of Mid-Continent. The district court ruled that MidContinent owed no duty to indemnify Highland for the full sum paid because the 

settlement agreement resolved “all claims” against Highland, not just “advertising 

injuries.” The agreement settled non-covered claims “of [Highland] creating a 

schematic plan . . . [and] constructing a home based on a copyrighted design” and 

claims that were excluded from coverage because they involved knowingly 

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causing “advertising injuries” 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 saw an advertisement before approving 

construction. The district court also ruled that Highland could not recover for any

claims of “advertising injury” that were covered. The district court explained that 

the settlement agreement “contain[ed] neither a schedule 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 each home” despite 

the variation 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 REVIEW

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[] 

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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. Alternatively, Highland argues that it provided “a 

straightforward, logical, and simple method of allocating the settlement between 

damages.” These arguments fail. 

A schematic plan by itself is not an “advertisement” under the MidContinent insurance policy. The Oxford English Dictionary defines “schematic” 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 building,” Plan, id. A drawing that shows the layout 

of a house does not provide “notice . . . about [the] products or services” provided 

by a homebuilder. And a schematic plan may be used for more practical purposes 

than “attracting 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.”

Highland failed to establish a causal connection between its infringement of 

the copyrights for house designs and its advertising that would warrant

indemnification for every claim that it settled with Home Design. The insurance 

policy states that Mid-Continent will indemnify Highland for “damages because of 

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. . . ‘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 “the 

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 (9th 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 copyrights and “constructing, and participating in the construction” of homes 

that infringed the copyrights. Highland argues that “common sense” and O’Toole’s 

testimony established 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. It 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 visiting 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. Highland offered no evidence that it 

caused “advertising injury” by using its infringing models or houses to market its 

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business like the homebuilders in Kirk King v. Continental Western Insurance 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). Those builders caused 

“advertising injury” by opening model homes, Kipp Flores, 602 F. App’x at 992, 

994, and by placing signs in front of copyright-infringing houses during their 

construction, id.; Kirk King, 123 S.W.3d at 262–63, 265–67. 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 did not prove that 

it marketed itself in that manner. Nor did Highland prove, as did the builder in 

Kipp Flores, that its “primary means 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-infringing 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 the settlement, or portions 

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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 its settlement 

payment by 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 received the cease and desist letter from Home 

Design. See id. (affirming the denial of damages attributable to claims excluded 

under the insurance policy). As the district court explained, Highland also fails 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 failed 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 MidContinent 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 

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attributable to the claims of advertising injury that were covered under its 

insurance policy. See Keller, 429 So. 2d at 780.

IV. CONCLUSION

We AFFIRM the summary judgment in favor of Mid-Continent.

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