[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 16-15127

Non-Argument Calendar

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D.C. Docket No. 1:15-cv-21175-JLK

IVFMD FLORIDA, INC., 

Plaintiff-Appellant,

versus

ALLIED PROPERTY & CASUALTY INSURANCE COMPANY, 

Defendant-Appellee.

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Appeal from the United States District Court

for the Southern District of Florida

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(February 8, 2017)

Before TJOFLAT, MARCUS, and WILLIAM PRYOR, Circuit Judges.

PER CURIAM: 

IVFMD Florida, Inc. (“IVFMD Florida”) appeals the district court’s grant of 

summary judgment in favor of Allied Property and Casualty Insurance Co. 

(“Allied”) on IVFMD Florida’s complaint claiming breach of contract for Allied’s 

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failure to defend and indemnify IVFMD Florida in an underlying countersuit filed 

by a Texas corporation, IVFMD, P.A. (“IVFMD Texas”). IVFMD Florida argues 

that the district court misinterpreted its insurance policies with Allied and abused 

its discretion by denying a motion for reconsideration and to set aside the order of 

summary judgment. After careful review, we affirm.

I.

The basic facts are these. From September 2012 to September 2014, Allied

issued general liability insurance policies to IVFMD Florida, then known as South 

Florida Institute for Reproductive Medicine, P.A. (“SFIRM”). Allied also issued 

umbrella policies during the relevant time. The general liability policies provided:

We will pay those sums . . . that the insured becomes legally 

obligated to pay as damages because of “personal and advertising 

injury” to which this insurance applies. We will have the right and 

duty to defend the insured against any “suit” seeking those damages 

for which there is coverage under this policy.

HOWEVER, we will have no duty to defend the insured against any 

“suit” seeking damages for “personal and advertising injury” to 

which this insurance does not apply.

The policies did not apply to “personal and advertising injury” that involved 

knowing violations of another’s rights or material that was published with 

knowledge of its falsity. The general liability policy for 2013-2014 also excluded 

injury that arose “out of the infringement of copyright, patent, trademark, trade 

secret or other intellectual property rights.” However, “other intellectual property 

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rights” did not include use of another’s advertising idea in an advertisement. The 

policies defined “personal and advertising injury” as “injury . . . arising out of one 

or more of the following offenses,” which included “[t]he use of another’s 

advertising idea in your ‘advertisement’” and “[i]nfringing upon another’s 

copyright, trade dress or slogan in your ‘advertisement.’” According to the 

policies, a “suit” was “a civil proceeding in which damages because of . . . 

‘personal and advertising injury’ to which this insurance applies are alleged.” 

In 2013, IVFMD Florida sued IVFMD Texas in the Northern District of 

Texas, alleging that the abbreviation “IVFMD” was subject to a trademark that 

belonged to IVFMD Florida. The complaint as amended asserted trademark 

dilution, trademark infringement and related claims. In its initial answer to the 

complaint, IVFMD Texas asserted three counterclaims, seeking declaratory

judgments of trademark invalidity, non-infringement, and an exceptional case 

under the Lanham Act. It also sought attorneys’ fees under the Lanham Act. 

IVFMD Texas alleged that IVFMD Florida’s 2013 trademark application 

for the abbreviation “IVFMD” was rejected by the U.S. Patent & Trademark 

Office (“USPTO”) because the abbreviation was not distinctive, and IVFMD 

Florida failed to provide evidence of acquired distinctiveness through a secondary 

meaning. It also claimed that IVFMD Florida used SFIRM, and not “IVFMD,” as 

its source indicator. According to IVFMD Texas, the only thing the parties had in 

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common was that both provided in vitro fertilization services and “both 

employ[ed] the unprotectable ‘IVFMD’ abbreviation in connection with their 

businesses.” The parties operated in distinct geographic markets, and no market 

overlap or likelihood of confusion existed. IVFMD Texas thus asserted that it had

not infringed on a valid trademark, and that IVFMD Florida had brought a 

groundless and unreasonable trademark action in bad faith. 

IVFMD Texas later amended its answer and counterclaims. The most 

recent answer raised the same counterclaims, but included new factual allegations 

that IVFMD Florida had increased its use of “IVFMD” in advertisements after the 

lawsuit was filed in order to “shore up its litigation position.” It also 

acknowledged that IVFMD Florida’s 2014 trademark application was published 

by the USPTO, but the opposition proceedings were suspended pending 

disposition of the Texas lawsuit. In May 2014, Allied rejected IVFMD Florida’s 

request for defense and indemnification. And in November 2014, IVFMD Florida 

and IVFMD Texas reached a settlement and dismissed the case.

In December 2014, IVFMD Florida filed the instant complaint against Allied

in state court. Allied removed the case to the United States District Court for the 

Southern District of Florida based on diversity of citizenship. Allied moved for 

summary judgment and submitted a statement of material facts and exhibits, which 

included IVFMD Texas’s initial answer but did not include its most recent answer. 

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It argued that there was no coverage for the counterclaims because IVFMD Texas 

sought no damages, there was no claim for bodily injury or property damage, the 

claims did not qualify as “personal and advertising injury,” the claims were not 

caused by an “occurrence,” the claims were excluded from coverage under the 

general policies, and the umbrella policies did not provide coverage. Over one 

month after the deadline for responding to the motion had passed, the district court 

granted the unopposed motion. The court adopted Allied’s legal arguments and 

found that the policies did not afford coverage for a countersuit for declaration of 

non-infringement of a trademark. 

On the same day the district court granted Allied’s motion for summary 

judgment, IVFMD Florida moved for an extension of time to respond because

IVFMD Florida’s counsel never received the motion. One week after judgment 

was entered in Allied’s favor, IVFMD Florida moved for reconsideration and to set 

aside summary judgment, pursuant to Fed. R. Civ. P. 59(e) and 60(b), arguing that 

its pretrial counsel, who was not listed as IVFMD Florida’s lead counsel, had not 

been served with the summary judgment motion due to an error in the electronic

filing system. Before the district court ruled on the motion for reconsideration, 

IVFMD Florida filed its notice of appeal from the district court’s order granting 

summary judgment. After the district court denied IVFMD Florida’s motion for 

reconsideration, IVFMD Florida did not amend its notice of appeal. 

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II.

We review a district court’s grant of summary judgment de novo, viewing 

all the evidence and drawing all reasonable factual inferences in favor of the 

nonmoving party. Stephens v. Mid-Continent Cas. Co., 749 F.3d 1318, 1321 

(11th Cir. 2014). Summary judgment is appropriate if “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). The interpretation of a provision in an insurance contract is a 

question of law subject to de novo review. Stephens, 749 F.3d at 1321. 

Because federal jurisdiction over this matter is based on diversity, Florida 

law governs the determination of the issues on appeal. Davis v. Nat’l Med. Enters., 

Inc., 253 F.3d 1314, 1319 n.6 (11th Cir. 2001). In insurance coverage cases under 

Florida law, courts look at the insurance policy as a whole and give each provision 

its “full meaning and operative effect.” Hyman v. Nationwide Mut. Fire Ins. Co.,

304 F.3d 1179, 1186 (11th Cir. 2002) (citing Dahl–Eimers v. Mutual of Omaha 

Life Ins. Co., 986 F.2d 1379, 1381 (11th Cir. 1993); Excelsior Ins. Co. v. Pomona 

Park Bar & Package Store, 369 So.2d 938, 941 (Fla. 1979)). Courts start with the 

plain language of the policy, and unambiguous language governs. Id.; Auto–

Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla. 2000). If 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 

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“ambiguous,” and must be “interpreted liberally in favor of the insured and strictly 

against the drafter who prepared the policy.” Auto–Owners, 756 So. 2d at 34.

Under Florida law, an insurance company’s duty to defend an insured is 

determined solely from the allegations in the complaint against the insured, not by 

the true facts of the cause of action against the insured, the insured’s version of the 

facts or the insured’s defenses. Amerisure Ins. Co. v. Gold Coast Marine Distribs., 

Inc., 771 So.2d 579, 580 (4th Fla. Dist. Ct. App. 2000). If the allegations in the 

complaint state facts that bring the injury within the policy’s coverage, the insurer 

must defend regardless of the merits of the lawsuit. Id. Coverage is determined 

from examining the most recent amended pleading, not the original pleading. State 

Farm Fire & Cas. Co. v. Steinberg, 393 F.3d 1226, 1230 (11th Cir. 2004) (applying 

Florida law in appeal concerning an insurer’s duty to defend and indemnify). 

Here, IVFMD Florida argues that the district court misinterpreted the 

policies because IVFMD Texas’s counterclaim for a declaratory judgment of 

trademark invalidity was an attack on IVFMD Florida’s trademark, which falls 

under the policies’ definition of “advertising injury.” It says that IVFMD Texas’s 

attack on its trademark arose out of either the use of another’s advertising idea in 

its advertisement or infringing on another’s copyright, trade dress or slogan in its

advertisement. We disagree. 

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In pertinent part, the policies define “personal and advertising injury” as an 

injury arising out of “the use of another’s advertising idea” or “infringing upon 

another’s copyright, trade dress or slogan” in an advertisement. The policies do 

not define “advertising idea,” but, applying Florida law, we have construed the 

term to mean “any idea or concept related to the promotion of a product to the 

public.” Hyman, 304 F.3d at 1188. The language is otherwise unambiguous. See 

Auto–Owners, 756 So.2d at 34. In its counterclaims, IVFMD Texas did not allege 

that the use of “IVFMD” was its idea or concept for promotion of in vitro 

fertilization services. Nor did it allege that it had a copyright, trade dress, or 

slogan related to the abbreviation. Rather, IVFMD Texas alleged that “IVFMD” 

was not distinctive, and, therefore, both parties could use the abbreviation in the 

promotion of their services. IVFMD Texas did not attack IVFMD Florida’s use of 

the abbreviation, but sought to protect its own use of it. Thus, as the district court 

properly found, IVFMD’s allegations did not bring its injury within the policies’ 

coverage. Amerisure,771 So.2d at 580.

We are also unpersuaded by IVFMD Florida’s argument that IVFMD 

Texas’s request for a declaratory judgment of an exceptional case under the 

Lanham Act was an “advertising injury” within the meaning of the policies. It 

cites Hyman, 304 F.3d at 1193-94, to show that we’ve previously held that 

Lanham Act violations could give rise to advertising injury coverage, but Hyman is 

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inapposite. In Hyman, the plaintiff was sued for trade dress infringement under the 

Lanham Act. Id. at 1187. The policy at issue stated that “advertising injury” 

included “misappropriation of advertising ideas or style of doing business.” Id. 

We determined that trade dress -- defined as “the total image of a product and may 

include features such as size, shape, color or color combinations, textures, 

graphics, or even particular sales techniques,” id. at 1189 (quotation omitted) -- is 

an advertising idea, and trade dress infringement requires a showing of 

misappropriation of that idea. Id. But in this case, IVFMD Texas did not allege 

trade dress infringement. Rather, it sought attorney’s fees under the Lanham Act 

because IVFMD Florida’s trademark infringement action was unfounded. 

Finally, IVFMD Florida argues that the district court misinterpreted the 

policies and the corresponding duty to defend by examining IVFMD Texas’s initial 

answer and counterclaims, rather than its most current pleading. IVFMD Florida 

recognizes that it did not raise this issue below, but it asserts that the district 

court’s failure to examine IVFMD Texas’s most current pleading is plain error. 

We generally decline to consider an issue raised for the first time on appeal in civil 

cases. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 

2004). However, even if we were to apply the plain-error standard in this case, 

which we have said “rarely applies in civil cases,” Ledford v. Peeples, 657 F.3d 

1222, 1258 (11th Cir. 2011), IVFMD Florida has not satisfied its burden. 

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Under the plain-error standard, the appellant has the burden to establish that: 

(1) an error occurred; (2) the error was plain; (3) the error affected its substantial 

rights; and (4) not correcting the error would seriously affect the fairness, integrity, 

or public reputation of the judicial proceeding. Farley v. Nationwide Mut. Ins. Co., 

197 F.3d 1322, 1329 (11th Cir. 1999). Substantial rights are affected if there is a 

reasonable probability of a different result absent the error. United States v. 

Hesser, 800 F.3d 1310, 1325 (11th Cir. 2015). Although the district court failed to 

examine the proper pleading in its examination of Allied’s summary judgment 

motion, State Farm, 393 F.3d at 1230, IVFMD Florida has failed to show that there 

is a reasonable probability that summary judgment would not have been granted 

absent the error. Hesser, 800 F.3d at 1325. 

Like the counterclaims examined by the district court, IVFMD Texas’s most 

recent pleading sought declaratory judgment for trademark invalidity, 

non-infringement, and an exceptional case warranting attorney’s fees. IVFMD 

Florida says that the most recent pleading differed from the initial pleading

because it included more information about the parties’ use of “IVFMD” and 

incorporated advertisements into the pleading. However, these facts did not 

suggest the IVFMD Florida used IVFMD Texas’s advertising idea in its 

advertisement or that it infringed on IVFMD Texas’s intellectual property rights. 

Instead, IVFMD Texas alleged that IVFMD Florida’s increased use of “IVFMD” 

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was a bad-faith attempt to bolster its unfounded claims of trademark infringement 

and dilution. Because the facts added to the most recent pleading did not bring 

IVFMD Texas’s injury within the policies’ coverage, examination of this pleading 

would not have altered the district court’s ruling on the motion for summary 

judgment. Amerisure,771 So.2d at 580; Hesser, 800 F.3d at 1325. 

In short, IVFMD Texas’s pleading did not allege facts that constituted an 

“advertising injury” as defined in the policies. As a result, the district court 

correctly determined that Allied did not have a duty to defend IVFMD Florida in 

the countersuit. Amerisure, 771 So.2d at 580.1

III.

Finally, we are compelled to conclude that we lack jurisdiction to review the 

denial of IVFMD Florida’s motion for reconsideration. A Rule 59(e) motion is a 

tolling motion under Fed. R. App. P. 4(a)(4)(A). See Fed. R. App. 4(a)(4)(A)(iv). 

A party intending to challenge an order disposing of a timely Rule 4(a)(4)(A) 

motion must file a timely notice of appeal, or amended notice of appeal, from the 

 1 Allied also argued before the district court, and the district court found by adopting the 

argument, that the counterclaims were outside the scope of the policies because: (1) IVFMD 

Texas did not seek damages; (2) there was no claim for additional types of injury covered by the 

policies; (3) the counterclaims were not caused by an “occurrence”; (4) the policy otherwise 

excluded the claims; and (5) the umbrella policies did not provide coverage. However, IVFMD 

Florida does not argue that the counterclaims alleged injury other than “advertising injury,”

which is the only relevant basis for coverage under the policies here. It also does not argue that 

the umbrella policies, which did not expand the definition of “advertising injury” in any way 

relevant to the instant case, provided coverage. Moreover, because we agree that the 

counterclaims alleged injury outside the scope of the policies, we need not decide whether the 

relief sought for the injury was outside the scope of the policies, whether the injury was caused 

by an “occurrence,” or whether the policies otherwise excluded the injury. 

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entry of the order disposing of the last Rule 4(a)(4)(A) motion. Fed. R. App. P. 

4(a)(4)(B)(ii); Weatherly v. Ala. State Univ., 728 F.3d 1263, 1271 (11th Cir. 2013) 

(noting that to seek appellate review of a timely post-trial motion for relief under 

Fed. R. Civ. P. 50(b) or 59(b) a party must file a separate notice of appeal or 

amended notice of appeal to designate the motion as subject to appeal). IVFMD 

Florida timely filed its motion for reconsideration, under Rule 59(e), within 28 

days of the entry of the judgment, Fed. R. Civ. P. 59(e), but it failed to amend its 

notice of appeal as required. Therefore, we lack jurisdiction to decide this issue.

AFFIRMED.

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