UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SUSAN WHITING, )
)
Plaintiff, )
)
v. ) Civil Case No. 09-455 (RJL)
)
AARP and UNITED HEAL THCARE )
INSURANCE COMPANY, )
)
Defendants. ~)
MEMORANDUM OPINION
(MarchU, 2010) [#15 and #17]
Plaintiff, Susan Whiting ("Whiting"), brings this action against AARP and United
HealthCare Insurance Company ("United HealthCare" and, together with AARP,
"defendants") alleging breach of contract, violation of the District of Columbia Consumer
Protection Procedures Act ("CPPA"), and unjust enrichment. Currently before the Court
are AARP's Motion to Dismiss Counts II, III, and IV of the Complaint for failure to state
a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6) and United
HealthCare's Motion to Dismiss Counts I, II, and III of the Complaint, also pursuant to
Rule 12(b)(6). Upon consideration of the parties' pleadings, relevant law, and the entire
record herein, the Court GRANTS both defendants' motions.
BACKGROUND
I. The AARP Medical Advantage Plan
Plaintiff is a resident of Arizona and a member of AARP. CompI.,-r 6. In or
around August 2007, Whiting received a letter signed by the Vice President of Member
Services, AARP Health Care Options that described the AARP Medical Advantage Plan,
which has been underwritten by United HealthCare since 2003 and characterized by the
defendants as "an affordable alternative to major medical insurance." Id. ,-r,-r 11, 12, 14;
see also Deci. of Scott M. Edson in Support of Def. United HealthCare Ins. Co.' s Mot. to
Dismiss ("Edson DecI.") Ex. A.l Indeed, in the letter that Whiting received in 2007, the
AARP Medical Advantage Plan was described as suitable "if you're between jobs, retired
early, or find yourself needing primary health insurance." CompI.,-r 14; see also Edson
Deci. Ex. B. Enclosed with the letter were marketing materials for the plan that stated,
the "AARP Medical Advantage Plan is not a major medical health plan, but is a good
option if you need essential health benefits today at an affordable price." Edson Deci. Ex.
C. The marketing materials also acknowledged that AARP "is not the insurer" but
instead "contracts with insurers to make coverage available to AARP members." Id.
On September 12,2007, at the age of 59, Whiting applied for the AARP Medical
Advantage Plan and selected the Gold level of coverage. CompI.,-r 20. She received a
letter dated September 25,2007, welcoming her to AARP Health Care Options and
confirming her enrollment in the AARP Medical Advantage Plan. Id. ,-r 21. The
A court may consider materials outside the complaint on a motion to dismiss if the
documents are "incorporated into the complaint and are central to the plaintiffs claim."
Cole v. Powell, 605 F. Supp. 2d 20,23 n.l (D.D.C. 2009). As plaintiff failed to attached
to the Complaint the documents she extensively referenced in her Complaint, United
HealthCare submitted authenticated versions with its Motion to Dismiss, which the Court
will consider in this Memorandum Opinion. See United HealthCare's Mot. to Dismiss 3
n.2; Edson Deci. (authenticating referenced documents attached as exhibits).
2
Certificate of Insurance for the AARP Medical Advantage Plan was included with this
letter. Id.
The first page of the Certificate of Insurance states, "Benefits are payable as
shown in the Schedule of Benefits for" eight listed categories of medical costs, including
Radiology Services and LaboratorylPathology Services. CompI.,-r 35. In a section
entitled "WHAT IS COVERED," the Certificate provides that "United HealthCare will
pay the Applicable Benefit shown in the Schedule of Benefits for the following covered
stays and services which are not otherwise excluded (see WHAT IS NOT COVERED)."
Id. ,-r 39; Edson Deci. Ex. D at 5. The Certificate of Insurance then specifies what is
covered in each of the eight listed categories of medical costs, including the two at issue
in this case:
Radiology Benefit - If you incur a charge for a Radiology Service
performed in an outpatient setting, a Radiology Benefit is payable, up to a
maximum of $2,700.00 per procedure ....
Note: If you are admitted to the Hospital as an inpatient directly from
the emergency room or observation room, no Radiology Benefits are payable
for services performed while you were confined in the emergency room or
observation room.
LaboratorylPathology Benefit - If you incur a charge for a
Laboratory/ Pathology Service performed in an outpatient setting, a
LaboratorylPathology Benefit is payable, up to a maximum of$1,600.00 per
procedure ....
Note: If you are admitted to the Hospital as an inpatient directly from
the emergency room or observation room, no LaboratorylPathology Benefits
are payable for services performed while you were confined in the emergency
room or observation room.
3
Edson Deci. Ex. D at 7 (italicized emphasis added); Compi. ~ 39. The Certificate next
identifies a series of exclusions under the heading "WHAT IS NOT COVERED,"
including:
Inpatient Confinements That Are Not Covered - An inpatient Hospital
confinement is not covered if the primary purpose of the confinement is to
provide any of the following types of care: (1) care of the type provided in a
clinic, rest home, convalescent home, home for the aged or assisted living
center; (2) skilled nursing care; (3) intermediate care, extended care or
custodial care; (4) residential care or care of the type provided in a domiciliary
unit; (5) care of the type provided in a hospice; (6) care of the type provided
in an Ambulatory Surgical Center or dialysis center; or (7) care consisting
primarily of scheduled classes, training, education and/or recreation ....
Edson Deci. Ex. D at 8; Compi. ~ 42. The Certificate also included a Schedule of
Benefits, which is a detailed list of the rates at which specific rates will be paid. Edson
Deci. Ex. D at 12-17; Compi. ~~ 46-47. The first two pages of the Schedule of Benefits
set forth the benefits payable under each of the eight categories of medical costs listed in
the "WHAT IS COVERED" section. Edson Decl. Ex. D at 5, 12-13. For both the
Radiology Benefit and the LaboratorylPathology Benefit, the Schedule of Benefits refers
to additional tables that more specifically enumerate the rates at which covered benefits
will be paid. Id. at 17. The monthly premium for the Gold level of coverage was $247.00
for individuals ages 55 through 59 and $264.25 for individuals ages 60 through 64.
Compi. ~ 23. Whiting has timely paid her monthly premiums since her enrollment in the
AARP Medical Advantage Plan. Id.
4
II. Whiting's Medical Costs and Insurance Claims
On September 23,2008, Whiting was admitted to the emergency room at Banner
Desert Medical Center ("Medical Center") in Phoenix, Arizona, for medical problems
later found to be related to her gall bladder. Compl. ~ 24. She was admitted as an
inpatient to the Medical Center from the emergency room the same day. Id. ~ 25. On
September 26,2008, Whiting underwent surgery to remove her gall bladder. Id. ~ 26.
She was released from the hospital the following day. Id. ~ 27.
On or about November 24, 2008, Whiting received a bill from the Medical Center
in the amount of $44,368.95. Compl. ~ 28. The bill included items related to her
hospitalization, including room and board, pharmacy, drugs, supplies, laboratory/
pathology services, and radiology services. Id. United HealthCare paid $4500.00 of this
bill, based on a rate of$1500.00 per day in the hospital. Id. ~ 29. United HealthCare also
paid separately for the surgeon who performed Whiting's surgery and for a total often
physician visits in the Medical Center. Id. United HealthCare did not pay for, among
other things, any laboratory/pathology services or radiology services, leaving the plaintiff
with an outstanding bill of $39,868.95. Id. ~ 30.
After United HealthCare refused to pay the remainder of her hospital bill, Whiting
submitted claims to United HealthCare for the medical expenses she incurred, including
the radiology and laboratory services. Compl. ~ 31. In response to her claims, United
HealthCare stated, "As the services by associated radiologists on 9/23/08-9/24/08 were
5
performed in an inpatient setting, no benefits are payable." Id. ,-r 32. She received a
similar response to an inquiry she submitted on the AARP website: "The bills received
are for services not eligible under your plan. Benefits are only payable when performed
on an outpatient basis. As the services by Dr. Cook [with Pathology Specialists] on
9/26/08 were rendered in an inpatient setting, no benefits are payable." Id. ,-r 33
(alteration in original).
On March 5, 2009, plaintiff filed this suit as a purported class action against
United HealthCare and AARP.2 Whiting asserts four causes of action: (1) breach of
contract against United HealthCare only; (2) breach of a third-party contract against both
United HealthCare and AARP; (3) violation of the CPPA against both United HealthCare
and AARP; and (4) unjust enrichment against AARP only. Both defendants move to
dismiss the counts filed against them.
ANALYSIS
I. Standard of Review
Federal Rule of Civil Procedure 12(b)(6) provides that a district court shall dismiss
a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ.
P. 12(b)(6). Although all factual allegations in a complaint are assumed to be true when
deciding a Rule 12(b)(6) motion, and all reasonable inferences are drawn in a plaintiffs
2 All issues relating to class certification were stayed until further notice of the
Court. Minute Order Granting Unopposed Mot. for Extension of Time to File Mot. for
Class Certification, June 2, 2009.
6
favor, the Court need not accept either inferences "unsupported by the facts laid set out in
the complaint" or "legal conclusions cast in the form of factual allegations." Kowal v.
MCI Commc'ns Corp., 16 F.3d 1271,1276 (D.C. Cir. 1994). "While a complaint
attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a
plaintiffs obligation to provide the grounds of his entitle[ment] to relief requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do." Bell At!. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in
original) (citations and internal quotation marks omitted). To survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted as true, to "state a claim to
relief that is plausible on its face." Id. at 570. "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937,
1949 (2009). This plausibility standard "asks for more than a sheer possibility that a
defendant has acted unlawfully." Id. In addition, "when the allegations in a complaint,
however true, could not raise a claim of entitlement to relief, 'this basic deficiency should
... be exposed at the point of minimum expenditure of time and money by the parties and
the court.'" Twombly, 550 U.S. at 558 (quoting 5 WRIGHT & MILLER § 1216 at 233-234)
(alteration in original).
II. Count I: Breach of Contract
Plaintiff alleges in Count I of her complaint that by "reject[ing] Mrs. Whiting's
7
demand for payment for radiology and laboratory/pathology services that were performed
during her confinement as an inpatient in the Medical Center ... Defendant United
HealthCare breached its contract with Mrs. Whiting." CompI. ~ 83. As a result of United
HealthCare's alleged breach, Whiting asserts that she has been "injured in that Defendant
United HealthCare has refused to pay for services covered under the AARP Medical
Advantage Plan." Id. ~ 84. I disagree.
As an initial matter, Whiting and United HealthCare disagree as to whether
Arizona or District of Columbia law should apply. See Def. United HealthCare's Mot. to
Dismiss ("United HealthCare's Mot.") 11 n.4; PI.'s Opp'n to United HealthCare's Mot.
14-19. However, the Court need not determine which jurisdiction's law prevails at this
point because there is no conflict of law regarding the specific pleading deficiency
asserted in United HealthCare's motion to dismiss Count I. See YWCA v. Allstate Ins.
Co., 275 F.3d 1145, 1150 (D.C. Cir. 2002). Under both Arizona and District of Columbia
law, the text of an insurance contract controls if it is unambiguous. See Roberts v. State
Farm Fire & Cas. Co., 705 P.2d 1335, 1336-37 (Ariz. 1985); Old Am. Ins. Co. v. Tucker,
223 A.2d 334, 336 (D.C. 1966). Here, plain language of the Certificate of Insurance is
clear and unambiguous that it does not provide the radiology and laboratory/pathology
benefits that plaintiff seeks, and thus United HealthCare's denial of coverage of these
services was not a breach of contract because they were not owed to Whiting under the
Certificate of Insurance. How so?
8
Whiting asserts that the radiology and laboratory/pathology services perfonned
"during her confinement as an inpatient" were covered under the AARP Medical
Advantage Plan. Compl. ~ 83. However, nothing in the Certificate provides for the
payment of radiology, laboratory, or pathology services perfonned during inpatient
confinement. In fact, the Radiology Benefit and LaboratorylPathology Benefit provisions
in the "WHAT IS COVERED"section of the Certificate expressly states that radiology
and laboratory/pathology benefits are payable when such services are "perfonned in an
outpatient setting." Edson Decl. Ex. D at 7 (emphasis added). Plaintiff herself quotes
this same language in the Complaint. See Compi. ~~ 39(a), 40.
Moreover, the Certificate of Insurance, when read as a whole, is unambiguous with
respect to this limitation of coverage. In fact, the Radiology Benefit and the
LaboratorylPathology Benefit provisions in the "WHAT IS COVERED" section include a
"Note" that there shall be no benefit payable for such services perfonned in the
emergency room or observation room, both of which are outpatient settings, if the insured
is later admitted as an inpatient directly from the emergency or observation room. See
Edson Decl. Ex. D at 7. If the Court were to use the plaintiffs interpretation of the
Certificate, this Note would produce a nonsensical result: benefits would be payable for
services perfonned both on an outpatient basis and on an inpatient basis, but not for
services perfonned on an outpatient basis when the insured is later admitted as an
inpatient. Such an interpretation is unreasonable and thus cannot control. See Am.
9
Family Mut. Ins. Co. v. White, 65 P.3d 449,453 (Ariz. Ct. App. 2003); 1010 Potomac
Assocs. v. Grocery Mfrs. ofAm., Inc., 485 A.2d 199,205 (D.C. 1984); see also
RESTATEMENT (SECOND) OF CONTRACTS § 203(a) (1981) (cited in 1010 Potomac Assocs.,
485 A.2d at 205) ("[A]n interpretation which gives a reasonable, lawful, and effective
meaning to all the terms is preferred to an interpretation which leaves a part unreasonable,
unlawful, or of no effect ... "). Rather, the Note confirms United HealthCare's
interpretation that under Certificate of Insurance for the AARP Medical Advantage Plan,
there is no inpatient benefit for radiology, laboratory, and pathology services.
Finally, Whiting's argument that such services are necessarily covered because the
"WHAT IS NOT COVERED" section fails to include an explicit exclusion of inpatient
radiology or laboratory/pathology services is similarly to no avail. See Pl.'s Opp'n to
United HealthCare's Mot. 25-26. The purpose of the "WHAT IS NOT COVERED"
section, including the more specific provision "Inpatient Confinements That Are Not
Covered," is to exclude those benefits that were not otherwise excluded: "United
HealthCare will pay the Applicable Benefit shown in the Schedule of Benefits for the
following covered stays and services which are not otherwise excluded (see WHAT IS
NOT COVERED)." Edson Decl. Ex. D at 5. Because the Certificate already explicitly
excludes inpatient radiology and laboratory/pathology services in the respective benefits
provisions in the "WHAT IS COVERED" section, it is immaterial that the list of
exclusions in the "WHAT IS NOT COVERED" section does not also mention such
10
servIces. See Us. Fid. & Guar. Corp. v. Advance Roofing & Supply Co., 788 P.2d 1227,
1234 (Ariz. Ct. App. 1989); Byrdv. Nationwide Mut. Ins. Co., 415 A.2d 807,808-09
(D.C. 1980).3
Therefore, Whiting's breach of contract claim against United HealthCare must fail
as a matter of law because the contract on which she relies-i.e., the Certificate of
Insurance-gives her no entitlement to the coverage she seeks, and thus United
Healthcare's denial of coverage was not a breach. Absent any breach of contract, Count I
must be dismissed for failure to state a claim upon which relief may be granted.
III. Count II: Third Party Beneficiary Claim for Breach of Contract
In Count II, Whiting alleges that the defendants "entered into a contract pursuant
to which United HealthCare issued Group Policy No. G-36000-5 to the Trustees of The
AARP Insurance Plan." Compi. ~ 86. 4 She claims that the purpose of this contract was
"to 'make coverage available to AARP members,'" id. ~ 87, and that she is a third-party
beneficiary of this contract, id. ~ 88. She alleges that United HealthCare's failure to pay
for her inpatient radiology and laboratory/pathology services was a breach of its
Whiting also argues that if the Court determines that the Certificate is ambiguous
with respect to the coverage of inpatient radiology, laboratory, and pathology services,
any doubt must be resolved against United HealthCare. See PI. 's Opp'n to United
HealthCare's Mot. 26. This argument is unavailing as well, having already determined
the Certificate is unambiguous. See Roberts, 705 P.2d at 1336-37; Old Am. Ins. Co., 233
A.2d at 336.
4 In dismissing Count II, the Court does not consider whether AARP, as opposed to
the AARP Trustees, is the proper party with respect to the third-party beneficiary claim.
11
agreement with AARP and that she was thus injured as a third-party beneficiary. Id.
,-r,-r 89-90. I disagree.
Whiting's third-party beneficiary claim against United HealthCare and AARP
must be dismissed because United HealthCare did not fail to provide Whiting coverage
owed to her. 5 Her allegations of harm as a third-party beneficiary to a contract between
the defendants are entirely redundant of her breach of contract claim against United
HealthCare. See Compl. ,-r 89 ("By virtue of United HealthCare's failure to pay for
covered services under the AARP Medical Advantage Plan, including radiology and
laboratory/pathology services administered in an inpatient setting, United HealthCare
breached its agreement with AARP. "). As I concluded above, United HealthCare
provided all coverage owed to Whiting under her plan. The fact that Whiting desires
more coverage beyond what her policy provides does not give rise to a legally cognizable
cause of action against either defendant. Therefore, her third-party beneficiary claim for
breach of contract against United HealthCare and AARP must be dismissed for failure to
state a claim upon which relief can be granted.
Because Whiting has not identified the specific contract under which she claims to
be a third-party beneficiary, the Court cannot determine whether Arizona or District of
Columbia law applies. This distinction is irrelevant for the purposes of dismissing Count
II, however, because both jurisdictions require a third-party beneficiary to plead facts
showing that she is the intended beneficiary of the contract at issue and that the defendant
breached a duty to her created by the third-party contract. See Sherman v. First Am. Title
Ins. Co., 38 P.3d 1229, 1232 (Ariz. Ct. App. 2002); Sidibe v. Traveler's Ins. Co., 468 F.
Supp. 2d 97,100-01 (D.D.C. 2006) (applying District of Columbia law).
12
IV. Count III: Violation of the District of Columbia's Consumer Protection
Procedures Act
Whiting next alleges that both defendants violated the District of Columbia's
CPPA by misrepresenting the extent of coverage provided under the AARP Medical
Advantage Plan. The alleged misrepresentations fall into two categories: (1) that the
AARP Medical Advantage Plan provided comprehensive or major medical insurance, see
Compi. ~~ 52-55, 96, and (2) that the plan covered inpatient radiology, laboratory, and
pathology services, see id. ~~ 56-58, 97-98.
As an initial matter, United HealthCare and Whiting again dispute whether the
District of Columbia's CPPA or the comparable Arizona statute, ARIZ. REv. STAT. ANN.
§ 44-1522, governs this claim. 6 Given the different pleading requirements under District
of Columbia and Arizona law, the Court must determine which law to apply to this claim.
See YWCA, 275 F.3d at 1150. In a diversity case such as this one, the law of the forum
state supplies the applicable choice-of-Iaw standard. See Klaxon Co. v. Stentor Elec. MIg.
Co., 313 U.S. 487, 496 (1941). Under District of Columbia law, courts employ a
"modified governmental interests analysis which seeks to identify the jurisdiction with the
most significant relationship to the dispute." Washkoviak v. Student Loan Mktg. Ass 'n,
900 A.2d 168, 180 (D.C. 2006) (internal quotation marks omitted). In this analysis, the
6 AARP accepts Whiting's allegation that she is properly proceeding under the
District of Columbia's CPPA for the purposes of AARP's motion to dismiss. See
AARP's Mot. to Dismiss ("AARP's Mot.") 12 n.S.
13
Court "evaluate[s] the governmental policies underlying the applicable laws and
detennine[s] which jurisdiction's policy would be more advanced by the application of its
law to the facts of the case under review." Id. The Court also considers the four factors
listed in the Restatement (Second) of Conflict of Laws § 145: (1) where the injury
occurred; (2) where the conduct causing the injury occurred; (3) the parties' domicile,
residence, nationality, place of incorporation, and place of business; and (4) the place
where the relationship is centered. Id.
Using this framework, I find that the District of Columbia's CPPA does apply to
this case. As for the governmental policies underlying the applicable laws, both the
District of Columbia and Arizona have a strong and equal interest in ensuring that its
corporate citizens refrain from misrepresentations. With respect to the four Restatement
factors, neither Whiting nor United HealthCare is a resident of the District of Columbia,
but the Complaint, the factual assertions of which are accepted as true, states that
"Defendant AARP is located in this District and Defendants AARP and United
HealthCare have, at all relevant times, transacted business in this District." Compi. ~ 10.
In addition, the Complaint asserts that "the Certificate of Insurance states that the policy
is 'delivered in and governed by the laws of the District of Columbia. '" Id. Based on
these facts, the District of Columbia has a qualitatively greater interest in this controversy,
and thus District of Columbia law applies. See Washkoviak, 900 A.2d at 182.
The District of Columbia's CPPA makes it a violation to:
14
(a) represent that goods or services have a source, sponsorship, approval,
certification, accessories, characteristics, ingredients, uses, benefits, or
quantities that they do not have;
(d) represent that goods or services are of particular standard, quality, grade,
style, or model, if in fact they are of another;
(e) misrepresent as to a material fact which has a tendency to mislead;
(f) fail to state a material fact if such failure tends to mislead ....
D.C. Code § 28-3904. "[A] claim of an unfair trade practice [under the CPPA] is
properly considered in terms of how the practice would be viewed and understood by a
reasonable consumer." Pearson v. Chung, 961 A.2d 1067, 1075 (D.C. 2008).
Regarding the first alleged category of misrepresentations, that the AARP Medical
Advantage Plan provided comprehensive or major medical insurance, Whiting has failed
to identify any conduct actionable under the CPPA. All statements that she points to as
misleading are in fact either accurate, not misleading to a reasonable consumer, or mere
puffery. For instance, Whiting takes issue with language stating that the AARP Medical
Advantage Plan provides an "alternative" to "major medical insurance"; that the plan was
appropriate for individuals who were "between jobs, [had] retired early, or [found
themselves] needing primary health insurance"; and that it was a "good option for
individuals who are looking for an alternative or otherwise lack access to major medical
insurance" or for those who need a "bridge between now and when [they] become eligible
for Medicare benefits." See Compi. ~ 96. This language, especially when viewed in
context, would not have misled a reasonable consumer into thinking that the AARP
Medical Advantage Plan constituted comprehensive, major medical health insurance.
15
The letter that Whiting received infonning her of the AARP Medical Advantage Plan
described it as "an alternative plan that is not major medical, yet provides essential health
benefits at an affordable price." Edson Decl. Ex. B (emphasis added). The marketing
materials enclosed with the letter stated, "The AARP Medical Advantage Plan is not a
major medical health plan, but is a good option if you need essential health benefits today
at an affordable price." Edson Deci. Ex. C (emphasis added). The first page of the
Certificate of Insurance states, in all capital letters, "THIS CERTIFICATE PROVIDES
LIMITED BENEFITS AND DOES NOT MEET THE STANDARDS OF A MEDICARE
SUPPLEMENT, A LONG TERM CARE, OR A MAJOR MEDICAL PLAN." Edson
Decl. Ex. D at 1 (emphasis added). Surely a reasonable consumer would have concluded
from reading these documents that the AARP Medical Advantage Plan was not a major
medical plan and instead conferred, to quote the Certificate of Insurance directly, "limited
benefits." Quite simply, there is no misrepresentation here, and no reasonable consumer
would have been mislead. These documents accurately portrayed that the AARP Medical
Advantage Plan was an "alternative" plan to a major medical plan. As such, it would not
provide comprehensive coverage like that of a major medical plan. 7
7 Furthennore, even when viewed in isolation, other statements that Whiting
cites-that the policy provides "peace of mind" and "essential health benefits" or "is a
smart option"-are too general and subjective in nature to be considered
misrepresentations. See Compi. ~~ 14, 16. Instead, these representations are, at most,
mere puffery, i.e., "the exaggerations reasonably to be expected of a seller as to the
degree of quality of his product, the truth or falsity of which cannot be precisely
detennined." Tietsworth v. Harley-Davidson, Inc., 677 N.W.2d 233,245 (Wis. 2004)
16
As to the second category of alleged misrepresentations, that the AARP Medical
Advantage Plan covered inpatient radiology, laboratory, and pathology services, I have
already concluded that the Certificate of Insurance is clear and unambiguous in not
covering these services. 8 In addition, the marketing materials that Whiting received
before she enrolled in the AARP Medical Advantage Plan included a chart delineating the
covered benefits under the Bronze, Silver, and Gold levels of coverage. See Edson Decl.
Ex. C. This chart expressly excludes inpatient laboratory/pathology and radiology
services from coverage by listing the amounts available under the plan for "Lab/
Pathology (Outpatient Only)" and "Radiology (Outpatient Only)." Id. In light of these
clear descriptions of what was covered under the AARP Medical Advantage Plan, none
of the "misrepresentations" that the plaintiff alleges are sufficient to establish a violation
(quoted in Pearson, 961 A.2d at 1076); see also Margolis v. U-Haul Int'l Inc., Case No.
2007 CA 005245 B, slip op. at 19-20 (D.C. Super. Ct. Dec. 17,2009) (defining puffery as
"outrageous generalized statement ... that [is] so exaggerated as to preclude reliance by
consumers") (internal quotation marks omitted) (quoting Cook, Perkiss & Liehe, Inc. v. N
Cali. Collection Servo Inc., 911 F.2d 242,246 (9th Cir. 1990)). Puffery cannot be the
basis for a claim for unfair trade practice under the CPPA. See Pearson, 961 A.2d at
1076; see also Hoyte v. Yum! Brands, Inc., 489 F. Supp. 2d 24,30 (D.D.C. 2007)
("KFC's claims that its restaurants serve the 'best food' is a non-measurable, 'bald
statement of superiority' that is non-actionable puffery."); Wells v. Allstate Ins. Co., 210
F.R.D. 1,3 n.3 (D.D.C. 2002) (citing summary judgment ruling that "the slogan 'You're
in good hands with Allstate' is mere puffery not actionable as false or misleading
advertising") .
8 Whiting does not allege any advertisement of a specific benefit that was not
covered. In fact, she expressly acknowledges receiving coverage for many expenses,
including a portion of her hospital stay, the surgeon who performed her surgery, and ten
physician visits in the Medical Center. Compl. ~ 29.
17
of the CPPA under the reasonable consumer standard. Therefore, Whiting's claims under
the CPPA against both United HealthCare and AARP must be dismissed. 9
V. Count IV: Unjust Enrichment
Finally, Whiting alleges AARP was unjustly enriched by virtue of the "royalties
and other fees [it received] from United HealthCare in connection with the sale of the
AARP Medical Advantage Plan with the AARP brand name." Compl.,-r 102. Whiting
asserts that "[t]he insurance premiums United HealthCare set, charged and accepted from
Mrs. Whiting ... reflected the royalties and other fees payable by United HealthCare to
AARP." Id. Whiting claims that because she paid her premiums under the AARP
Medical Advantage Plan but "received scant coverage and incurred unreimbursed medical
costs," AARP was improperly benefitted. Id. Not quite.
Unjust enrichment is an equitable doctrine under which a plaintiff may recover
"when: (1) the plaintiff conferred a benefit on the defendant; (2) the defendant retains the
benefit; and (3) under the circumstances, the defendant's retention of the benefit is
unjust." News World Commc'ns, Inc. v. Thompsen, 878 A.2d 1218,1222 (D.C. 2005).\0
9 Because the Court finds that Whiting has failed to allege any actionable conduct,
the Court does not consider AARP's arguments regarding nonprofit organization activity
or the definition of "merchant" under the CPPA.
IO
The Court need not choose between District of Columbia and Arizona law because
they are consistent with respect to the issues presented in regarding Count IV. See News
World Commc 'ns, 878 A.2d at 1222; Trustmark Ins. Co. v. Bank One, Ariz., NA, 48 P.3d
485,491 (Ariz. Ct. App. 2002) ("To establish a claim for unjust enrichment, a party must
show: (1) an enrichment; (2) an impoverishment; (3) a connection between the
enrichment and the impoverishment; (4) the absence of justification for the enrichment
18
Under the facts of this case, it is clear that AARP was not unjustly benefitted by the
premiums that Whiting paid to United HealthCare under the AARP Medical Advantage
Plan.11
Whiting's alleged injuries on her unjust enrichment claim against AARP arise
from the same alleged breach of her contract with United HealthCare. Compare Compi.
~ 90 ("As a direct and proximate result of United HealthCare's breach of its contract with
AARP, Mrs. Whiting and member of the Class ... have failed to receive coverage for
services for which benefits were payable and have been paying premiums for scant
coverage."), with Compi. ~ 102 ("Mrs. Whiting and the members of the Class paid their
premiums, but received scant coverage and incurred unreimbursed medical costs that
United HealthCare [sic]."). In short, she is seeking both reimbursement for "premiums
paid" to United HealthCare, Compi. Prayer for Relief (c), and "restitution by AARP of
amounts unjustly received as royalties," id. Prayer for Relief (t), although she alleges that
the premiums she paid "reflected the royalties and other fees payable by United
HealthCare to AARP," id. ~ 102. Plaintiff does not allege how her premium amounts
and the impoverishment; and (5) the absence of a legal remedy.").
1J AARP does not assert that Whiting's unjust enrichment claim should be dismissed
because an express contract already governs the relationship between Whiting and AARP.
See AARP's Mot. 22-24 (discussing how Whiting had an express contract with United
HealthCare); Reply Mem. in SUpp. of AARP's Mot. 16 (same). As such, the Court does
not consider whether Whiting's membership in AARP indicates the existence of an
express contract that precludes Whiting's unjust enrichment claim against AARP. See,
e.g., Schiffv. Am. Ass 'n of Retired Pers., 697 A.2d 1193, 1194 & n.2 (D.C. 1997).
19
were calculated.
Having already found that there was no breach of contract and no
misrepresentation of coverage in violation of the CPPA, Whiting cannot prevail on her
unjust enrichment claim against AARP. Simply put, AARP was justly enriched by
whatever royalties it received from United HealthCare that were derived from the
premiums Whiting paid under the AARP Medical Advantage Plan. Whiting received the
benefits she paid for, and AARP thus received the royalties it was due. Moreover,
Whiting was aware prior to her enrollment in the AARP Medical Advantage Program that
AARP would "receive[] an annual royalty from United HealthCare for the use of the
AARP trademark." Compl. ~ 18. In other words, she knew from the outset that AARP
would be paid royalties by United HealthCare and that United Healthcare would
underwrite Plaintiff's indemnity policy. Thus, regardless of whether United HealthCare
improperly denied coverage as alleged, Whiting did not confer any unexpected or
unanticipated benefit on AARP. See Jordan Keys & Jessamy, LLP v. St. Paul Fire &
Marine Ins. Co., 870 A.2d 58, 65-66 (D.C. 2005) (finding no unjust enrichment when the
benefit was contemplated from the outset). Because United HealthCare did not
improperly deny coverage of her inpatient radiology and laboratory/pathology services, it
is even clearer that AARP was not unjustly enriched by virtue of the royalty it received
20
from United HealthCare. 12 Thus, as with her other claims, Whiting's claim for unjust
enrichment must be dismissed under Rule 12(b)(6).
CONCLUSION
For all of the foregoing reasons, the Court GRANTS the defendant's Motion To
Dismiss and DISMISSES the action in its entirety. An order consistent with this decision
accompanies this Memorandum Opinion.
United States District Judge
12 Because the Court finds no unjust enrichment, the Court does not consider whether
plaintiffs efforts to recover whatever portion of her premiums reflect royalties paid by
United HealthCare to AARP should be denied as too remote.
21