Van Zanen v. Qwest Wireless, L.L.C.

FILED
United States Court of Appeals
Tenth Circuit

April 18, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PATRICK VAN ZANEN; VICKI VAN
ZANEN,

Plaintiffs - Appellants,
v. No. 07-1219
QWEST WIRELESS, L.L.C., a
Delaware corporation; QWEST
SERVICES CORPORATION, a
Colorado corporation; QWEST
COMMUNICATIONS
INTERNATIONAL, INC., a Delaware
corporation,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 06-cv-2546-LTB)

Jerry C. Bonnett (Francis J. Balint, Jr. and Kathryn A. Jann with him on the
briefs), of Bonnett, Fairbourn, Friedman & Balint, P.C., Phoenix, Arizona, for
Plaintiffs - Appellants.

Christopher J. Koenigs (Michael B. Carroll with him on the brief), of Sherman &
Howard, L.L.C., Denver, Colorado, for Defendants - Appellees.

Before HARTZ, McKAY and KELLY, Circuit Judges.

HARTZ, Circuit Judge.
 Plaintiffs Patrick and Vicki Van Zanen appeal the dismissal of their claim

for unjust enrichment against Qwest Wireless, LLC; Qwest Services Corporation;

and Qwest Communications International, Inc. (collectively, Qwest). The Van

Zanens, who are Arizona residents, allege that Qwest has acted as an unlicensed

seller of insurance in violation of the laws of Arizona and 13 other states where it

markets and sells handset insurance to its wireless customers. They assert that

Qwest has been unjustly enriched by its receipt of sales commissions in violation

of the licensing statutes and seek to recover the portion of the handset-insurance

premium that compensates Qwest for its sales efforts. The district court, after

determining that the Arizona licensing statute provides no private right of action,

ruled that the Van Zanens had not stated a claim for unjust enrichment on their

own behalf. Because violation of a licensing statute, without more, is generally

insufficient to support an unjust-enrichment claim against one who has performed

as promised, we affirm the dismissal.

I. BACKGROUND

On review of a dismissal for failure to state a claim, we accept the

allegations of the complaint as true. Sutton v. Utah State Sch. for Deaf & Blind,

173 F.3d 1226, 1236 (10th Cir. 1999). According to the complaint, the Van

Zanens purchased handset insurance from Qwest in May 2005 and had continued

to subscribe to it until the complaint was filed. Qwest, which is not licensed to

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sell or solicit insurance in any of the 14 states in which it operates, markets and

sells the handset insurance to its customers. The insurance policy itself is

administered and underwritten by a third party, lock/line, LLC. Customers are

billed for the insurance through Qwest, and Qwest retains a portion of the

monthly payments as compensation for its sales efforts.

In December 2006 the Van Zanens filed suit in the United States District

Court for the District of Colorado, alleging that Qwest’s sales of the handset

insurance violate the licensing laws of Arizona and 13 other states. They sought

certification of the suit as a class action. Pleading implied statutory causes of

action and common-law unjust enrichment, they prayed for an injunction against

Qwest, a declaration that Qwest’s conduct is unlawful, the imposition of a

constructive trust on Qwest’s share of the insurance payments, and disgorgement

of that share.

The parties agreed that Arizona law governed the Van Zanens’ statutory

claim on their own behalf. Section 282 of the Arizona insurance code prohibits

selling, soliciting, or negotiating insurance without a license. Ariz. Rev. Stat.

Ann. § 20-282 (2001). Section 298 of that code prohibits receiving commissions

without a license. Id. § 20-298(B). The only remedy explicitly provided by the

statute is administrative recourse: if the director of insurance believes that a

violation is occurring or is about to occur, the director may order the violator to

cease and desist or may file a complaint to enjoin the violation. See id. § 20-292.

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 The district court first examined the Arizona licensing statute and decided

that it implies no private right of action. Van Zanen v. Qwest Wireless, L.L.C.,

No. 06-cr-02546-LTB-PAC, 2007 WL 1160010, at *2–5 (D. Colo. April 19,

2007). Turning to the unjust-enrichment claim, the court held that the Van

Zanens had not stated a claim for unjust enrichment because they had suffered

“no detriment, expense, or impoverishment.” Id. at *6. Rather, the court said, the

Van Zanens “obtained a valuable product for which they bargained and which

they intend to keep.” Id. Because the Van Zanens had failed to state any proper

claims on their own behalf, the court dismissed the class-action claims as well.

Id. The Van Zanens appeal only the ruling on unjust enrichment.

II. DISCUSSION

We review de novo the dismissal of a complaint on a Rule 12(b)(6) motion

for failure to state a claim. Sutton, 173 F.3d at 1236. We will affirm the

dismissal only if the complaint “lacks ‘enough facts to state a claim to relief that

is plausible on its face.’” Trentadue v. Integrity Comm., 501 F.3d 1215, 1236

(10th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1974

(2007)). The service contract between Qwest and its customers provides that

Colorado law governs disputes, and the parties agree that we must apply Colorado

law to the unjust-enrichment claim.

The sole question on appeal is whether the Van Zanens have stated a claim

for unjust enrichment. Under Colorado law, to establish a claim of unjust

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enrichment a plaintiff must show that “(1) at plaintiff's expense (2) defendant

received a benefit (3) under circumstances that would make it unjust for

defendant to retain the benefit without paying.” DCB Constr. Co., Inc. v. Cent.

City Dev. Co., 965 P.2d 115, 119–120 (Colo. 1998). As explained by the

Colorado Supreme Court, unjust enrichment is “a judicially created remedy

designed to avoid benefit to one to the unfair detriment of another.” Salzman v.

Bachrach, 996 P.2d 1263, 1265 (Colo. 2000). “The concept of unjust enrichment

centers attention on the prevention of injustice.” Ninth Dist. Prod. Credit Ass'n v.

Ed Duggan, Inc., 821 P.2d 788, 795 (Colo. 1991) (en banc) (internal quotation

marks omitted).

The Van Zanens assert that they have satisfied the elements of an unjust-

enrichment claim because (1) they paid a sales commission to Qwest, (2) which

Qwest has retained, (3) which is unjust because Qwest is prohibited by law from

accepting a sales commission. The district court erred, they contend, in ruling

that they have suffered no “detriment, expense, or impoverishment,” Van Zanen,

2007 WL 1160010, at *6; they state that the payment for the sales commission

was an expense. We agree that the Van Zanens incurred an expense, but we think

that they have misconceived the district court’s decision. The clear import of the

decision is not that the Van Zanens failed to incur an expense; rather, it is that the

Van Zanens received value for their money and that in the absence of any unfair

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detriment, there is no injustice to prevent. In other words, the third element of

their claim—unjustness—is missing. 1

We therefore turn to whether a violation of the Arizona insurance-licensing

statute by itself is sufficient to establish that Qwest’s retention of the sales

commission is unjust. The parties have not cited, nor have we found, any case in

which the Colorado Supreme Court has addressed whether a licensing violation of

this type may form the basis of an unjust-enrichment claim. Thus, we must

predict how that court would rule. See Rash v. J.V. Intermediate, Ltd., 498 F.3d

1201, 1206 (10th Cir. 2007) (“Where the state’s highest court has not addressed

the issue presented, the federal court must determine what decision the state court

would make if faced with the same facts and issue.” (internal quotation marks

omitted)). To assist us in making this prediction, we examine the views

expressed by other courts and authoritative sources.

When an unlicensed person has been paid by the plaintiff but has not yet

performed, the plaintiff can often recover the payment. See 2 George E. Palmer,

1
We note one peculiarity of the Van Zanens’ unjust-enrichment claim.
They do not contend that the price of the headset insurance that they obtained
from lock/line is above market price or even that it costs more than the value to
them. Indeed, if Qwest were licensed or if lock/line did not pay any commission
to Qwest, they would be making no claim for a refund. Their complaint is simply
that part of what they pay for the insurance goes to Qwest as a commission. We
are unsure whether an unjust-enrichment claim against the seller of a product or
service can be based on how the seller elects to use the sales proceeds (at least,
absent an affirmative promise or representation about how it would use them).
But Qwest has not argued the point, so we need not resolve it. We mention it
only to clarify that we have not implicitly decided it in favor of the Van Zanens.

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The Law of Restitution § 8.3(b), at 186 (1978). But the general rule is to the

contrary when the plaintiff has received the promised services. “When services

contracted for have been performed by an unlicensed person, courts nearly always

have denied restitution of payments made for such services.” Id. at 184. See

generally Maurice T. Brunner, Annotation, Recovery Back of Money Paid to

Unlicensed Persons Required by Law to Have Occupational or Business License

or Permit to Make Contract, 74 A.L.R. 3d 637, §3[a]-[b] (1976) (collecting

cases).

Various rationales have been offered for this rule. They include: (1) that

recognizing a claim for unjust enrichment would provide a remedy not intended

by the licensing statute, see Comet Theatre Enters., Inc., v. Cartwright, 195 F.2d

80, 81 (9th Cir. 1952); Main v. Taggares, 504 P.2d 309, 312–13 (Wash. Ct. App.

1972); (2) that restitution would itself be inequitable by affording a windfall to

the plaintiff, see Gallagher v. Leary, 674 A.2d 787, 788 (Vt. 1996); (3) that a

plaintiff has adequate remedies at law if performance by the unlicensed person is

substandard, see Bentivegna v. Powers Steel & Wire Prods., Inc., 81 P.3d 1040,

1047 (Ariz. Ct. App. 2003); and (4) that a party who has rendered performance

under a contract is not unjustly enriched because it has not retained a benefit

without paying for it, see Reg’l Props., Inc., v. Fin. & Real Estate Consulting Co.,

678 F.2d 552, 564 (5th Cir. 1982); Comet Theatre, 195 F.2d at 83; Citaramanis v.

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Hallowell, 613 A.2d 964, 972 (Md. 1992); Bowlerama, Inc. v. Woodside Realty

Co., 752 P.2d 1377, 1382, 1383–84 (Wyo. 1988).

The majority view is echoed in current scholarship that has been tentatively

approved by the American Law Institute. Addressing agreements that are “illegal

or otherwise unenforceable for reasons of public policy,” the Tentative Draft of

the Restatement (Third) of Restitution and Unjust Enrichment states: “There is

no unjust enrichment if the claimant receives the counterperformance specified by

the parties’ unenforceable agreement.” § 32(2) (Tentative Draft No. 3, 2004).

Comment f to § 32 explains:

So long as the defendant’s obligation of performance remains
executory, restitution is ordinarily available . . . . By contrast, where
the defendant’s obligation has already been performed, it is the
allowance of the claim in restitution (rather than its refusal) that will
result in forfeiture, penalizing the defendant rather than the claimant.
In this setting, moreover, the claimant will rarely be able to
demonstrate that the alternative to restitution is the unjust enrichment
of the defendant.

Thus, even if we assume that contracts in violation of the insurance-licensing

statute are unenforceable under Arizona law, the Van Zanens are not entitled to

restitution because they have received counterperformance—namely, the receipt

of the insurance. As comment f suggests, it is granting restitution to the Van

Zanens that would effect an injustice. If the Van Zanens were allowed to recover

the fees that they paid to Qwest, they would, as the district court noted, be

allowed to retain a benefit without paying for it. Indeed, if the unlicensed party

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has performed but has not been paid, that party may have a claim in restitution for

the benefit conferred. See id., § 32 cmt (e) (“[T]he fact of noncompliance [with a

regulatory requirement]—with rare exceptions—will not be evidence of the moral

turpitude or inequitable conduct that forecloses a claim in restitution” to an

unlicensed party that has performed its part of the bargain). That the law will

sometimes aid the unlicensed party to collect payment supports the conclusion

that it will not step in to recover from that party compensation for performance

already rendered.

The Van Zanens contend that a number of cases recognize unjust-

enrichment claims against unlicensed persons who have performed as promised.

But most of the cases cited by the Van Zanens are distinguishable from this case.

In some, it appears that the courts were recognizing an implied cause of action in

a statute, rather than recognizing an unjust-enrichment claim based on a violation

of the statute. See Ransburg v. Haase, 586 N.E.2d 1295, 1300 (Ill. App. Ct.

1992) (the purpose of the act can be best effectuated by allowing recovery);

Mascarenas v. Jaramillo, 806 P.2d 59, 62–63 (N.M. 1991) (searching for

legislative intent and concluding that allowing recovery served the purposes of

the statute); Cooper v. Paris, 413 So. 2d 772, 774 (Fla. Dist. Ct. App. 1982)

(denying recovery would eviscerate the purpose of the statute). In none of these

cases did the court use the term unjust enrichment. Other cases cited by the Van

Zanens are distinguishable because the purchaser seeking restitution had not

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received or retained any benefit from the service or product. See Wineman v.

Blueprint 100, Inc., 75 Misc.2d 665, 667 (N.Y. Civ. Ct. 1973); Kansas City

Comty. Ctr. v. Heritage Indus., Inc., 972 F.2d 185, 189–90 (8th Cir. 1992); Lund

v. Cooper, 324 P.2d 62, 64–65 (Cal. Dist. Ct. App. 1958).

To be sure, a few cases, a small minority, adopt the Van Zanen’s view. See

Kowalski v. Cedars of Portsmouth Condo. Ass’n, 769 A.2d 344, 346–48 (N.H.

2001) (plaintiff can recover commissions paid to an unlicensed real-estate

broker); Vista Designs, Inc. v. Silverman, 774 So. 2d 884, 886 (Fla. Dist. Ct. App.

2001) (attorney must disgorge legal fees paid to him because he was not

authorized to practice law in that state). But we predict that Colorado would

follow the majority view. First, that majority is a substantial one. Second, it is

the view of the draft of the Restatement of Restitution and Unjust Enrichment,

tentatively approved by the membership of the American Law Institute. We note

that Colorado courts have repeatedly relied on the previous version of the

Restatement of Restitution. See, e.g., DCB Constr. Co., Inc. v. Cent. City Dev.

Co., 965 P.2d 115, 121–22 (Colo. 1998) (en banc); In re Marriage of Allen, 724

P.2d 651, 656–57, 658, 659–60 (Colo. 1986) (en banc); Bankers Trust Co. v. Int’l

Trust Co., 113 P.2d 656, 665 (Colo. 1941). We doubt that the Colorado Supreme

Court would wish to swim against this tide.

The Van Zanens contend that even if we adopt what we take to be the

majority rule, their claim is nevertheless cognizable under recognized exceptions

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to that rule. First, they contest the district court’s characterization of Qwest’s

sales efforts as a “valuable product” and suggest that they have alleged deficient

performance by Qwest of the sales task. We do not so read their complaint.

Moreover, in their response to Qwest’s motion to dismiss, the Van Zanens did not

argue that Qwest was unjustly enriched because its performance was flawed; the

unjust enrichment claim was based solely on Qwest’s being unlicensed. We

therefore agree with the district court that the Van Zanens had not alleged “that

Qwest performed its insurance sales efforts negligently or with any other level of

malfeasance.” Van Zanen, 2007 WL 1160010, at *5. Because Qwest performed

its sales function, restitution is improper.

Second, the Van Zanens contend that the rule we have adopted applies only

when the parties are in pari delicto, or equally in the wrong, and that they are not

in pari delicto with Qwest. They point to the general rule that when the parties to

an illegal bargain are in pari delicto, a court will not “aid either to enforce,

revoke, or rescind.” Potter v. Swinehart, 184 P.2d 149, 151 (Colo. 1947). In

other words, the court will leave equally culpable parties where they stand. But

the rationale for not allowing recovery of money paid to an unlicensed defendant

who has performed as promised is not that the plaintiff and the unlicensed

defendant are in pari delicto. Rather, it is that the defendant has not been

unjustly enriched. The only case cited by the Van Zanens that granted relief and

could be read as suggesting that the sole reason for denying recovery would be

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the in pari delicto doctrine is Kowalski, 769 A.2d at 348. As previously

observed, however, Kowalski represents the view of only a small minority of

courts. 2

III. CONCLUSION

We AFFIRM the judgment below. Qwest’s motion for attorney fees is

DENIED.

2
A century-old decision by a Colorado intermediate appellate court denied
relief to a school district seeking repayment of salary paid to an unlicensed
teacher who had performed her duties. See Sch. Dist. No. 46 v. Johnson, 143 P.
264 (Colo. Ct. App. 1914). The court stated that the school district was in pari
delicto with the teacher because it was statutorily prohibited from employing the
unlicensed teacher and therefore could not bring suit against her. See id. at 266.
But the court did not indicate that the district could have recovered if it had not
been in pari delicto. On the contrary, before mentioning the in pari delicto
doctrine, the court said,
The [teacher] having been qualified at the time the contract of
employment was entered into, and the board having accepted her
services without objection and paid for the same, there are few, if
any, authorities, and no good reasons, which would permit the
district to recover for money already paid, notwithstanding the terms
of the statute, which provide that, if the term of school for which the
teacher is employed extends more than one month after the expiration
of such certificate, the teacher shall secure a new certificate, or a
renewal of the one held, while it is in force.
Id. (emphasis added). One could infer that even if the parties were not in pari
delicto, the court would have ruled that the teacher had not been unjustly enriched
by payment for services she had rendered.

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