United States District Court, D. Nebraska
MICHELLE ANDERSON, an individual, on behalf of herself and all others similarly situated, Plaintiff,
TRAVELEX INSURANCE SERVICES, INC. and TRANSAMERICA CASUALTY INSURANCE COMPANY, Defendants.
MEMORANDUM AND ORDER
M. GERRARD CHIEF UNITED STATES DISTRICT JUDGE.
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.
STANDARD OF REVIEW
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).
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
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.
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).
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. 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.
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.
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 ...