[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 15-14439

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D.C. Docket No. 1:09-cv-20762-JAL

I.T.N. CONSOLIDATORS, INC., 

I.T.N. OF MIAMI, INC., 

 Plaintiffs - Appellees,

versus

NORTHERN MARINE UNDERWRITERS LTD.,

individually and as agents for Lloyds of London,

Watkins Syndicate (WTK/457), 

 Defendant - Appellant. 

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Appeals from the United States District Court

for the Southern District of Florida

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(June 28, 2017)

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Before MARCUS and BLACK, Circuit Judges, and COHEN,* District Judge.

PER CURIAM: 

This insurance coverage dispute is back before us for the second time. 

Northern Marine Underwriters Ltd. (“Northern Marine”) appeals the entry of 

summary judgment in favor of I.T.N. Consolidators, Inc. and I.T.N. Miami, Inc.

(“ITN”). ITN is a freight forwarding company that insured its shipments through 

an open cover policy (the “Policy”) issued by Northern Marine. Under the Policy, 

ITN could insure as many -- or as few -- cargo shipments as it chose. In November 

2007, ITN learned that it had failed to obtain coverage for a shipment that was 

hijacked. It subsequently filed a standard form in an attempt to obtain coverage for 

the shipment and filed a claim for the loss. Northern Marine denied the claim, ITN 

filed suit, and the district court granted summary judgment in favor of Northern 

Marine.

On initial review, a prior panel of this Court held that the Policy did not 

cover known losses. It nonetheless remanded for the district court to determine 

whether the parties might have entered into a new contract whereby Northern 

Marine agreed to cover the known loss in exchange for some additional 

consideration. On remand, the district court erred in reading the mandate to 

 * Honorable Mark H. Cohen, United States District Judge for the Northern District of Georgia, 

sitting by designation.

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preclude consideration of Northern Marine’s argument that any new agreement 

would have been void as a matter of public policy because that argument was 

based on intervening case law -- a well-established exception to the mandate rule.

Having the benefit of oral argument, we now reverse and remand for entry of final 

summary judgment in favor of Northern Marine.

I.

The essential facts are these. ITN is a freight forwarding company involved 

in cargo transportation. Northern Marine was its insurer. Under the terms of the 

Policy, when ITN wanted to insure a particular shipment it would enter 

information relevant to the shipment (cargo, value, route, etc.) into a form on 

Northern Marine’s website. Based on this information, a premium would be 

automatically calculated and a Certificate of Insurance (“COI”) would be 

generated.

On November 7, 2007, hijackers intercepted and stole an ITN shipment on

its way from Miami to Ciudad del Este, Paraguay. After learning that the shipment 

had been stolen, ITN reviewed its records and realized that it had failed to obtain a

COI for the shipment. ITN proceeded to use the online form to issue itself a COI 

and remit payment of the premium to the broker who handled billing for Northern 

Marine. The broker later remitted these funds to Northern Marine, which received 

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the funds on February 12, 2008. Northern Marine denied the claim on February 

15, 2008. 

ITN filed suit asserting Northern Marine’s denial was a breach of the 

insurance contract and seeking a declaratory judgment that the Policy covered the 

loss. Instead, the district court granted summary judgment in favor of Northern 

Marine, holding that the policy did not cover the loss because the COI was issued 

after ITN knew the loss had occurred. 

On appeal, this Court affirmed the district court’s conclusion that ITN’s 

claim was not insured under the Policy. I.T.N. Consolidators, Inc. v. Northern 

Marine Underwriters Ltd., 464 F. App’x 788, 791 (11th Cir. 2012). The panel 

nonetheless vacated the entry of summary judgment and remanded to the district 

court to determine “whether Northern [Marine] in fact agreed to insure the lost 

shipment” by accepting the premium after it knew that the loss had occurred, and 

thus “whether a contract was formed.” Id. at 795 & n.13. The panel offered that 

consideration for this new contract “might have been, for instance, the furtherance 

of Northern [Marine]’s relationship with ITN, or the encouragement of the practice 

ITN claims it followed: the invariable payment of premiums on every shipment.” 

Id. at 794. After that remand, the Florida First District Court of Appeals decided 

Interstate Fire & Cas. Co. v. Abernathy, 93 So. 3d 352 (Fla. 1st Dist. Ct. App. 

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2012), and held that contracts to insure known losses are unenforceable as a matter 

of Florida public policy.

On remand, the district court granted summary judgment in favor of ITN. It 

refused to consider Northern Marine’s argument that the contract was

unenforceable as against public policy under Interstate, holding that this argument 

was outside the scope of the mandate handed down by this Court. The district 

court found that ITN’s payment of a premium, occurring as it did after it learned of 

the hijacking, constituted an offer to enter into a new insurance contract that 

covered the known loss, which Northern Marine accepted by retaining the 

premium. The district court then found that there was consideration because the 

undisputed facts showed that ITN had continued to do business with Northern 

Marine after the claim. 

Northern Marine now appeals the district court’s entry of summary 

judgment, arguing in relevant part that the district court erred in failing to consider 

its argument that the hypothetical new contract was void as against public policy, 

and that if it had considered this argument, the district court would necessarily 

have entered summary judgment in Northern Marine’s favor. ITN defends the 

district court’s judgment on its terms, but cross-appeals the district court’s denial 

of its request for prejudgment interest.

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II.

We review de novo the question of whether a district court properly 

construed the mandate from this Court. See Ad-Vantage Tel. Directory 

Consultants, Inc. v. GTE Directories Corp., 943 F.2d 1511, 1517 (11th Cir. 1991).

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

all of the facts in the record in the light most favorable to the non-movant.” 

Haynes v. McCalla Raymer, LLC, 793 F.3d 1246, 1249 (11th Cir. 2015) (internal 

quotations omitted). Summary judgment is appropriate where “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).

Under the mandate rule, district courts must carry out any specific mandate 

issued by the appellate court. Litman v. Mass. Mut. Life Ins. Co., 825 F.2d 1506, 

1511 (11th Cir. 1987) (en banc). When an appellate court “remands for resolution 

of a narrow factual issue, the lower court may not circumvent the mandate by 

approaching the identical legal issue under an entirely new theory.” Barber v. Int’l 

Bhd. of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, & Helpers, Dist. 

Lodge No. 57, 841 F.2d 1067, 1070 (11th Cir. 1988) (quotation omitted); see also

Ellard v. Ala. Bd. of Pardons & Paroles, 928 F.2d 378, 381–82 (11th Cir. 1991). 

This doctrine ensures obedience from the lower courts and helps bring an end to 

litigation by foreclosing infinite redress of settled issues. United States v. 

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Williams, 728 F.2d 1402, 1406 (11th Cir. 1984). But, the mandate rule is not 

absolute. It does not apply when “an intervening change in the controlling law 

dictates a different result.” Piambino v. Bailey, 757 F.2d 1112, 1120 (11th Cir. 

1985). 

Here, Northern Marine argued that, based on Interstate Fire & Cas. Co. v. 

Abernathy, 93 So. 3d 352 (Fla. 1st Dist. Ct. App. 2012), a contract to insure a 

known loss is void as a matter of public policy. Interstate was decided after the 

mandate issued in this case. Given ITN’s contention that the new contract arose 

after the loss was known to both parties,1 the district court was required to at least 

consider whether Interstate reflected a change in controlling Florida law so that it 

fell within the exception to the mandate rule and thus rendered the new contract 

unenforceable. It was error for the district court to reject Northern Marine’s 

argument out of hand.

Because the record is clear, we will address whether Interstate renders any 

new contract unenforceable rather than remanding for a whole new round of 

district court proceedings. For purposes of this determination, we review all of the 

evidence in the light most favorable to ITN. See Chapman, 229 F.3d at 1023.

The dispute in Interstate arose out of a policy insurance company Interstate 

issued to Emerald Coast, an entertainment company whose business included 

 1 Northern disputes that it knew of the loss. 

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leasing out inflatable recreational gear for local events. 93 So. 3d at 354–55. The

policy also covered unnamed additional insureds with respect to liability arising 

out of Emerald Coast’s ongoing operations, provided that the additional insured’s 

coverage was “required by written contract.” Id. at 355. On April 14, 2007, 14-

year-old Dakota Abernathy was injured on an inflatable bungee run provided by 

Emerald Coast at a festival hosted by the Choctaw Touchdown Club (“the Club”). 

Id. at 354–55. The Club did not have liability insurance or a written contract with 

Emerald Coast at the time of the accident. Id. at 355. Nonetheless, four days after 

the accident, the insurance broker issued a certificate of insurance naming the Club 

as an additional insured, backdated to the date of the accident. Id. at 355 & n.4. In 

the litigation that ensued, the trial court denied the defendant’s motion for 

summary judgment and entered judgment in favor of the plaintiff, holding that the 

parties had formed a contract to insure the known loss and that such a contract was 

not forbidden. Id. at 356–57.

On appeal, the Florida First District Court of Appeal reversed. Id. at 360. 

The appellate court began its discussion by describing the concept of insurance and 

how it is defined under Florida law. Id. at 358. It emphasized that insurance 

necessarily involves contingencies so that payment for a non-contingent loss is 

contrary to the very idea of insurance. Id. The court then surveyed Florida laws 

regulating insurers and insurance markets. It noted that Florida law requires 

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insurers to maintain reserves and surpluses. Id. (citing Fla. Stat. §§ 624.404, 

624.408). The court also pointed out that the Florida legislature had enacted 

substantive protections to “avoid financial loss to claimants or policyholders 

because of the insolvency of an insurer.” Id. at 359 (quoting Fla. Stat. §

631.51(1)). These protections included the creation of the Florida Insurance 

Guaranty Association (FIGA), to handle the claims of insolvent insurers. Id.; see 

also Fla. Stat. 631.50, et seq. (establishing the powers and duties of FIGA).

From these and other provisions, the court divined a general public policy 

interest in protecting the public from insolvent insurers. Id. at 358–59. It reasoned 

that the rule against contracts to insure a known loss is “part and parcel” of that 

policy, because such agreements risk the solvency of the insurer. Id. The court 

explained:

This basic doctrine does not arise from a desire to protect an 

individual insurance company from something akin to fraud, . . . but 

from a recognition that the insured’s risk is, in a real sense, borne by 

the insurer’s policyholders as a group, from whose pool of premiums 

all claims must be paid if the insurer is to remain in business. In other 

words, because society as a whole relies on insurance, public policy 

will not permit a transaction that is anathema to the very concept of 

insurance which, if allowed in the aggregate, could put insurance at 

risk for all.

Id. at 359 (quoting Nourachi v. First Am. Title Ins. Co., 44 So. 3d 602, 610 

(Fla. 5th Dist. Ct. App. 2010) (Lawson, J., concurring)) (quotations omitted). 

Because the rule was not founded on fraud protection, the court rejected the 

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plaintiff’s contention that the contract was enforceable so long as the insurer also 

knew about the loss. Id.

Applying Interstate to our facts, the new contract hypothesized by the prior 

panel would be unenforceable because it would be an agreement to insure a known 

loss. Interstate squarely forbids enforcement of such an agreement.

When questioned at oral argument ITN argued that Interstate was 

distinguishable. Counsel argued that Interstate forbids coverage only under the 

original insurance contract; it has nothing to say about a new contract. This 

argument finds no support in the Interstate opinion. Just like in Interstate, ITN 

claims that the COI is the new contract. Both the Interstate contract and the new 

contract in this case would require the insurer to pay for a known loss. On these 

facts, Interstate is not distinguishable.

ITN also argued in district court -- but not in its briefing on appeal -- that 

Florida law is unsettled on this issue. It pointed to the majority opinions in

Nourachi, 44 So. 3d at 608, and National Life Ins. Co. v. Harriott, 268 So. 2d 397, 

400 (Fla. 2d Dist. Ct. App. 1972), both of which held that an agreement to insure a 

loss known to the insured is unenforceable where the insured does not disclose the 

loss to the insurer. But these cases do not conflict with Interstate. Neither case

held that an agreement to insure a known loss is enforceable if the insurer does

know about the loss, because that issue was never presented. Indeed, Interstate

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itself is based on a concurring opinion from Nourachi. In Nourachi, the majority 

held that the agreement to insure a known loss was unenforceable where the fact 

was not disclosed to the insurer. Id. at 608. The concurrence would have gone 

further and held that a contract to insure a known loss is never enforceable, even if 

the insurer had known. Id. at 610. Nothing about either the majority or concurring 

opinion suggests that those rules are in conflict. 

Interstate is on all fours with the case before us. Because agreements to 

insure a known loss are void as a matter of public policy in Florida, any 

hypothetical agreement to insure the hijacked shipment after it was known to be 

lost is unenforceable. In the absence of a holding on point from the Florida 

Supreme Court, “we are bound by the decisions of intermediate state courts unless 

there is some persuasive indication that the state’s highest court would decide the 

issue differently.” Media Servs. Grp., Inc. v. Bay Cities Commc’ns, Inc., 237 F.3d 

1326, 1329 n.5 (11th Cir. 2001). We are aware of no indication that the Florida 

Supreme Court would reject Interstate, and ITN has pointed us to none. 

Accordingly, we must apply Interstate, and Northern Marine is entitled to summary 

judgment.

The district court erred when it construed the mandate to preclude arguments 

based on intervening case law. Considering these arguments, we conclude that any

new contract would be unenforceable as a matter of Florida public policy. The 

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failure of this new contract theory eliminates the last remaining basis for recovery 

by ITN. Therefore, we reverse and remand to the district court with instructions to 

enter final summary judgment in favor of Northern Marine.

REVERSED AND REMANDED.

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