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Anderson v. Travelex Insurance Services Inc.

United States District Court, D. Nebraska

May 1, 2019

MICHELLE ANDERSON, an individual, on behalf of herself and all others similarly situated, Plaintiff,



         The plaintiff alleges a class action claim for damages regarding the defendants' refusal to return the pro rata share of her travel insurance premium that can be attributed to post-departure risks. The defendants move for dismissal pursuant to Fed.R.Civ.P. 12(b)(6) arguing that the plaintiff failed to state a claim for relief. For the reasons that follow, the Court will deny the defendants' motion.


         To survive a Rule 12(b)(6) motion to dismiss, a complaint must set forth a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2). This standard does not require detailed factual allegations, but it demands more than an unadorned accusation. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint must provide more than labels and conclusions; and a formulaic recitation of the elements of a cause of action will not suffice. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         A complaint must also contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. Iqbal, 556 U.S. at 678. 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. Id. Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief. Id. at 679.

         In assessing a motion to dismiss, a court must take all the factual allegations in the complaint as true, but is not bound to accept as true a legal conclusion couched as a factual allegation. Twombly, 550 U.S. at 555. The facts alleged must raise a reasonable expectation that discovery will reveal evidence to substantiate the necessary elements of the plaintiff's claim. See Id. at 545. The court must assume the truth of the plaintiff's factual allegations, and a well-pleaded complaint may proceed, even if it strikes a savvy judge that actual proof of those facts is improbable, and that recovery is very remote and unlikely. Id. at 556.

         A motion to dismiss under Rule 12(b)(6) tests only the sufficiency of the allegations in the complaint, not the sufficiency of the evidence alleged in support of those allegations. Stamm v. Cty. of Cheyenne, Neb., 326 F.Supp.3d 832, 847 (D. Neb. 2018); Harrington v. Hall Cty. Bd. of Supervisors, No. 4:15-CV-3052, 2016 WL 1274534, at *4 (D. Neb. Mar. 31, 2016).


         On September 21, 2015, the plaintiff purchased a round-trip ticket to fly from Phoenix, Arizona to London, England, with departure set for November 5, and return on November 15. Filing 1 at 8. That same day, the plaintiff also purchased a Travelex Custom Wholesale travel insurance policy. Id. The policy contained both pre-departure and post-departure coverages. The insurance certificate specified when the various coverages would become effective.

All coverages (except Pre-Departure Trip Cancellation and Post-Departure Trip Interruption) will take effect on the later of 1) the date the plan payment has been received by the Policyholder; 2) the date and time you start your Covered Trip; or 3) 12:01 A.M. Standard Time on the Scheduled Departure Date of your Covered Trip.

Filing 28-4 at 5.[1] The insurance certificate also provided that pre-departure trip cancellation coverage was effective on the day after plan payment was received, and post-departure trip interruption coverage became effective on the scheduled departure date. Id.

         The plaintiff alleged that approximately 24 hours prior to her scheduled departure, it was necessary to cancel her trip due to family circumstances. Filing 1 at 9. On November 29, the plaintiff submitted a claim for the loss she suffered as a consequence of her pre-departure trip cancellation. Defendant Transamerica denied the plaintiff's claim on December 9 stating that the reasons for the plaintiff's cancellation were not covered under the policy. Id. Nearly a year later, on November 10, 2016, the plaintiff sent a letter to the defendants demanding the return of the premium she paid for post-departure travel insurance coverage. The defendants denied the plaintiff's demand on November 24.

         On July 30, 2018, a class action complaint was filed naming the plaintiff as the representative of a class reasonably estimated to be at least in the thousands. Filing 1 at 10. The plaintiff's complaint seeks recovery of a pro rata share of the policy premium attributable to post-departure coverages. The defendants moved for dismissal of the plaintiff's complaint on two grounds. First, the defendants assert that the plaintiff's unjust enrichment claim is contrary to Arizona law. Second, the ...

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