FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCT 16, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-11395

Non-Argument Calendar

________________________

D. C. Docket No. 07-00369-CV-JFK-1

OWNERS INSURANCE COMPANY, 

PlaintiffCounter-DefendantAppellee, 

versus

JUDY GORDON, et al., 

Defendants, 

ROBERT A. LEE, 

BRENDAN C. MURPHY, 

BCM CUSTOM HOMES, INC., 

a Georgia corporation, 

SARAH M. LEE, 

CHESAPEAKE DEVELOPMENT, INC., 

a Georgia corporation, 

RAL PROPERTIES AND DEVELOPMENT, INC., 

DefendantsCross-ClaimantsCounter-ClaimantsAppellants, 
TAYLOR & TURNER INSURANCE SERVICES INC., et al., 

Cross-Defendants. 

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(October 16, 2008)

Before TJOFLAT, BLACK and WILSON, Circuit Judges.

PER CURIAM:

Chesapeake Development, Inc. (“Chesapeake”) appeals the district court’s

grant of summary judgment in favor of Owners Insurance Company (“Owners”). 

The district court held that Chesapeake, the insured, failed to provide the requisite

notice of a potential copyright lawsuit to Owners, the insurer, and thus Owners

was not obligated under the policy to indemnify or defend Chesapeake when the

copyright lawsuit was later commenced. After a thorough consideration of the

parties’ briefs and the record, we affirm the district court. 

The insurance policy at issue required Chesapeake to notify Owners “of an

‘occurrence’ or an offense which may result in a claim” as a precondition for the

defense or indemnification of Chesapeake. Such notice was required to be made

2
“as soon as practicable.” In October 2002, Robert Lee, a principal of Chesapeake,

received three letters from Judy Gordon, a principal of Axio Design, LLC

(“Axio”), indicating potential legal action over Chesapeake’s future use of certain

residential designs. On October 7, Gordon wrote that the residential designs were

the property of Axio and that “a licensing fee of $17,500 must be paid to Axio” for

any future use of the designs. On October 15, Gordon wrote: “I am waiting for

your response to my recent counteroffer. Should it not be received by the close of

business on Friday, October 18th, I may . . . seek my remedy in court, which

would be an expensive and protracted process.” Finally, in response to an October

18 proposal by Lee, Gordon wrote, on October 28: “The fees in my earlier

proposal for the use of Axio-owned plans were based upon the fee schedules

commonly employed by registered architects in residential design. . . .

Furthermore, the house plans in question are the property of Axio. Any claims to

the contrary are false. Any and all future use of the plans include must

compensation to Axio.”

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

the evidence in the light most favorable to the party opposing the motion. Skrtich

v. Thornton, 280 F.3d 1295, 1299 (11th Cir. 2002). Summary judgment is

appropriate “if the pleadings, the discovery and disclosure materials on file, and

3
any affidavits show that there is no genuine issue as to any material fact and that

the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c); see

also Eberhardt v. Waters, 901 F.2d 1578, 1580 (11th Cir. 1990).

Under the applicable Georgia law, insurance policy provisions which

require the insured to provide prompt notice to the insurer of potential claims are

common and have been held to be enforceable. See, e.g., Canadyne-Georgia

Corp. v. Cont’l Ins. Co., 999 F.2d 1547, 1557 (11th Cir. 1993); South Carolina

Insur. Co. v. Coody, 957 F. Supp. 234, 237-38 (M.D. Ga. 1997); Richmond v.

Georgia Farm Bureau Mut. Ins. Co., 231 S.E.2d 245, 249-50 (Ga. Ct. App. 1976). 

“‘The purpose of a notice provision in an insurance policy is to enable an insurer

to investigate promptly the facts surrounding the occurrence while they are still

fresh and the witnesses are still available, to prepare for a defense of the action,

and, in a proper case, to determine the feasibility of settlement of the claim.’” 

Coody, 957 F. Supp. at 237 (quoting Richmond, 231 S.E.2d at 250).

We agree with the district court that Gordon made it clear in her letters that

she believed Axio owned the residential designs and that if Chesapeake wanted to

use any of the designs, it would be required to pay Axio a licensing fee. Because

the Copyright Act grants copyright protection to the owners of a work, Gordon’s

assertion of Axio’s ownership of the designs put Chesapeake on notice of the

4
potentiality of a copyright claim. Chesapeake was required, as a condition

precedent to coverage, to provide notice of the potential claim to Owners “as soon

as practicable.” Chesapeake, however, made no effort to put Owners on notice

until approximately three years later (August 2005), after the complaint had been

served. Owners, therefore, was not under a duty to indemnify or defend

Chesapeake in the lawsuit. Accordingly, we affirm.

1

AFFIRMED.

 Having held that Chesapeake failed to satisfy the condition precedent of giving 1

practicable notice in October 2002, we do not reach Chesapeake’s remaining arguments

regarding the sufficiency of notice in August 2005 and thereafter through Mark Verbeke, whom

Chesapeake asserts was an agent of Owners. 

5