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,

,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.

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)."

,-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.,

(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,

(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."

. "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,

(2009). This plausibility standard "asks for more than a sheer possibility that a

defendant has acted unlawfully."

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,

(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.,

(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.,

(Ariz. 1985); Old Am. Ins. Co. v. Tucker,

(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,

(Ariz. Ct. App. 2003); 1010 Potomac

Assocs. v. Grocery Mfrs. ofAm., Inc.,

(D.C. 1984); see also

RESTATEMENT (SECOND) OF CONTRACTS § 203(a) (1981) (cited in 1010 Potomac Assocs.,

) ("[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.,

(Ariz. Ct. App. 1989); Byrdv. Nationwide Mut. Ins. Co.,

(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,'"

~ 87, and that she is a third-party

beneficiary of this contract,

~ 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,

; 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.,

(Ariz. Ct. App. 2002); Sidibe v. Traveler's Ins. Co.,

(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

~~ 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,

. 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.,

(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,

(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."

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,

.

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 ....

. "[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,

(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.,

(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)."

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,

); 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.,

,246 (9th Cir. 1990)). Puffery cannot be the basis for a claim for unfair trade practice under the CPPA. See Pearson,

; see also Hoyte v. Yum! Brands, Inc.,

(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.,

,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."

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.

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,

(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,

; Trustmark Ins. Co. v. Bank One, Ariz., NA,

(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,"

Prayer for Relief (t), although she alleges that

the premiums she paid "reflected the royalties and other fees payable by United

HealthCare to AARP,"

~ 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.,

, 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.,

(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