I.T.N. Consolidators, Inc. v. Northern Marine Underwriters Ltd., 699 F. App'x 880

ITN, a freight forwarder, used an online open-cover policy from Northern Marine to insure cargo by generating Certificates of Insurance (COIs) and paying premiums per shipment.
On November 7, 2007, an ITN shipment was hijacked and stolen; ITN later discovered it had not obtained a COI for that shipment.
After learning of the loss, ITN completed the online form, issued a COI for that shipment, and paid the premium; Northern Marine received the premium on February 12, 2008 and denied the claim on February 15, 2008.
The district court originally granted summary judgment for Northern Marine because the COI was issued after ITN knew of the loss; this court affirmed noncoverage but remanded to determine whether a new contract was formed when Northern Marine accepted the premium.
On remand, the district court found a new contract and granted summary judgment for ITN; Northern Marine argued the remand court should have considered intervening Florida case law (Interstate) holding agreements to insure known losses void as against public policy.
This Eleventh Circuit panel held the district court erred in refusing to consider the intervening law and concluded any hypothetical post-loss contract is unenforceable under Florida public policy, reversing and directing entry of final summary judgment for Northern Marine.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a COI issued after the insured knew of the loss can form an enforceable contract	ITN: issuance and premium payment after loss constituted an offer accepted by Northern Marine (retention of premium) and there was consideration (ongoing business)	Northern: such a post-loss agreement is unenforceable as against public policy under intervening Florida law	Held: unenforceable — agreements to insure known losses violate Florida public policy; summary judgment for Northern Marine reversed and entered
Whether the district court could refuse to consider Northern Marine’s public-policy argument based on this Court’s prior mandate	ITN: remand restricted to whether a new contract existed; subsequent public-policy argument was outside mandate	Northern: Interstate was decided after the mandate and fits the exception to the mandate rule (intervening change in controlling law)	Held: district court erred to ignore intervening law; exception to mandate rule applies
Whether there was sufficient consideration to support the alleged new contract	ITN: continued business relations and insurer’s retention of premium supplied consideration	Northern: even assuming consideration, the agreement would be void as against public policy	Held: consideration dispute rendered moot because public-policy bar makes any such contract unenforceable

I.T.N. Consolidators, Inc. v. Northern Marine Underwriters Ltd., [citation="464 F. App'x 788"] (11th Cir. 2012) (earlier panel affirmed noncoverage but remanded to assess whether acceptance of premium created a new contract)
Interstate Fire & Cas. Co. v. Abernathy, 93 So. 3d 352 (Fla. 1st DCA 2012) (contracts to insure known losses are unenforceable as a matter of Florida public policy)
Nourachi v. First Am. Title Ins. Co., 44 So. 3d 602 (Fla. 5th DCA 2010) (discussion of enforceability of post-loss insurance agreements; provided concurring reasoning relied on by Interstate)
Piambino v. Bailey, 757 F.2d 1112 (11th Cir. 1985) (mandate rule exception where intervening change in controlling law dictates a different result)