IVFMD Florida, Inc. v. Allied Property & Casualty Insurance Company
679 F. App'x 769
| 11th Cir. | 2017Background
- Allied issued commercial general liability and umbrella policies to IVFMD Florida (formerly SFIRM) for 2012–2014; policies included coverage for "personal and advertising injury" but excluded knowing falsity and certain intellectual-property infringement, with a specific definition including "the use of another’s advertising idea" or "infringing upon another’s copyright, trade dress or slogan" in an advertisement.
- IVFMD Florida sued IVFMD Texas in 2013 for trademark infringement and related claims over the abbreviation "IVFMD." IVFMD Texas counterclaimed for declaratory judgments of trademark invalidity and non-infringement and sought attorneys’ fees under the Lanham Act.
- Allied denied coverage and refused to defend/indemnify IVFMD Florida in the Texas countersuit; the Texas action later settled and was dismissed.
- IVFMD Florida sued Allied in Florida state court for breach of contract; Allied removed to federal court and moved for summary judgment, arguing no duty to defend existed under the policies.
- The district court granted unopposed summary judgment for Allied (IVFMD Florida failed to timely respond), IVFMD Florida moved for reconsideration (arguing improper service of the summary-judgment motion), filed a notice of appeal before the reconsideration ruling, and the district court denied reconsideration.
- The Eleventh Circuit affirmed summary judgment, holding the Texas counterclaims did not allege an "advertising injury" covered by the policies and that the court lacked jurisdiction to review denial of the Rule 59(e) motion because IVFMD Florida did not amend its notice of appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Allied had a duty to defend IVFMD Florida against IVFMD Texas’s counterclaims under the policies’ "personal and advertising injury" coverage | Counterclaims attacking the trademark and seeking an exceptional-case Lanham Act ruling constitute "advertising injury" (use of another’s advertising idea or infringement in advertisement) | Counterclaims sought declaratory relief of invalidity/non-infringement—not misappropriation or use of Texas’s advertising idea or trade dress—so they fall outside the policy’s advertising-injury definition | Held: No duty to defend; counterclaims alleged non-distinctiveness and protection of Texas’s own use, not misappropriation or advertising-idea use, so outside coverage |
| Whether the district court erred by relying on IVFMD Texas’s initial answer instead of its later amended pleading when deciding coverage | IVFMD Florida: the most recent pleading contained additional allegations and incorporated advertisements, which could show covered "advertising injury" | Allied: later pleading did not change the substance—still sought invalidity/non-infringement and alleged bad-faith litigation tactics, not misappropriation | Held: Even if the district court erred in considering the earlier pleading, plain-error standard not met; the amended pleading would not have changed the coverage analysis |
| Whether a Lanham Act exceptional-case claim (attorneys’ fees) can trigger advertising-injury coverage | IVFMD Florida: exceptional-case allegations tied to Lanham Act meritless-suit conduct should qualify under prior cases recognizing Lanham Act-related advertising injury | Allied: Hyman and similar precedents are inapposite because those involved trade dress or misappropriation claims, not declaratory-invalidity defenses and fee requests | Held: Hyman is distinguishable; Lanham Act fee request based on alleged groundless suit did not plead covered advertising injury |
| Whether appellate review could include denial of Rule 59(e) motion for reconsideration | IVFMD Florida: timely filed Rule 59(e); court should review denial on appeal | Allied: IVFMD Florida failed to amend its notice of appeal to include the post-judgment motion, depriving appellate jurisdiction to review denial | Held: Court lacks jurisdiction to review denial of Rule 59(e) motion because IVFMD Florida did not amend its notice of appeal as required |
Key Cases Cited
- Stephens v. Mid-Continent Cas. Co., 749 F.3d 1318 (11th Cir.) (standard for de novo review of insurance-policy interpretation and summary judgment)
- Hyman v. Nationwide Mut. Fire Ins. Co., 304 F.3d 1179 (11th Cir. 2002) (construing "advertising idea" and trade dress as an advertising concept for coverage analysis)
- Auto–Owners Ins. Co. v. Anderson, 756 So.2d 29 (Fla. 2000) (policy language governs; ambiguous provisions construed for insured)
- Amerisure Ins. Co. v. Gold Coast Marine Distribs., Inc., 771 So.2d 579 (Fla. Dist. Ct. App.) (duty to defend is determined solely from the allegations in the complaint)
- State Farm Fire & Cas. Co. v. Steinberg, 393 F.3d 1226 (11th Cir.) (coverage determined from most recent amended pleading)
- Hesser v. United States, 800 F.3d 1310 (11th Cir.) (plain-error standard elements for civil appeals and requirement to show reasonable probability of a different result)