Guercia v. AON Affinity Insurance Services Inc

1

2 FILED IN THE

U.S. DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

3 Jan 15, 2025

4 SEAN F. MCAVOY, CLERK

5 UNITED STATES DISTRICT COURT

6 EASTERN DISTRICT OF WASHINGTON

7 JOAN GUERCIA, individually and on

behalf of all others similarly situated, No. 4:24-CV-05088-MKD

8

Plaintiff, ORDER GRANTING

9 DEFENDANTS’ MOTION TO

v. DISMISS AND GRANTING IN

10 PART DEFENDANTS’ REQUEST

AFFINITY INSURANCE SERVICES FOR JUDICIAL NOTICE

11 INC., AIS AFFINITY INSURANCE

AGENCY INC., NATIONWIDE ECF Nos. 18, 19

12 MUTUAL INSURANCE COMPANY,

13 Defendants.

14 Before the Court is Defendants’ Motion to Dismiss for Failure to State a

15 Claim, ECF No. 18, and related Request for Judicial Notice, ECF No. 19. On

16 January 6, 2025, the Court held a hearing on these motions. Brittany Scott and

17 Patrick Moore appeared on behalf of Plaintiff. Lauren Rainwater and Caitlyn

18 Cowan appeared on behalf of Defendants. The Court has reviewed the briefing

19 and the record and is fully informed. The Court grants Defendants’ Motion to

20

1 Dismiss for Failure to State a Claim, ECF No. 18, and grants in part Defendants’

2 Request for Judicial Notice, ECF No. 19.

3 BACKGROUND

4 A. Factual and Procedural Background

5 On July 24, 2024, Plaintiff Joan Guercia brought a class action suit against

6 Defendants Aon Affinity, d/b/a Aon Affinity Insurance Services, Inc. (including

7 affiliates Affinity Insurance Services, Inc. and AIS Affinity Insurance Agency,

8 Inc.) (collectively, “Aon Affinity” or “Aon”) and Defendant Nationwide Mutual

9 Insurance Company (“Nationwide”). ECF No. 1 at 2. Defendant Nationwide

10 underwrites travel insurance products and authorizes Aon to sell its travel

11 insurance products to Washington consumers. Id. at 5 ¶ 15. Defendant Aon

12 Affinity Insurance Services, Inc. directs the marketing and sale of insurance

13 policies through its subsidiaries. Id. at 4 ¶ 11.

14 Plaintiff’s Complaint alleges that she booked two cruises with Princess

15 Cruises (“Princess”) via their website princess.com on or about June 8, 2023, and

16 November 9, 2023. Id. at 14 ¶ 40. During the checkout process, Plaintiff

17 purchased the insurance offered by Defendants. Id. This was the only insurance

18 option presented to Plaintiff. Id. at 14 ¶ 42. Plaintiff claims that at the time she

19 accepted this insurance, she did not know that she was being charged for “both an

20 insurance premium and a mandatory fee that Defendants contend was for

1 assistance and other non-insurance services but that was, in effect, an unlawful

2 agent’s fee or unauthorized premium.” Id. at 14 ¶ 43. Plaintiff “believed that the

3 amount she paid Defendants was for the insurance only.” Id. at 15 ¶ 45. Plaintiff

4 asserts that she “would have paid less than she did if Defendants had complied

5 with Washington law and charged her only an approved premium, rather than

6 unfairly, unlawfully, and deceptively including undisclosed additional fee or fees

7 in the cost of the insurance.” Id. at 15 ¶ 46. Plaintiff also asserts, she “likely

8 would not have purchased insurance from Defendants if she had doubts about their

9 integrity and reliability, and she would have had such doubts if Defendants had

10 fully and fairly disclosed the material information referenced in th[e] Complaint.”

11 Id. at 15-16 ¶ 47.

12 In support of her claims, Plaintiff details the checkout process on

13 princess.com, and includes three screenshots from the checkout process. See id. at

14 8-11 ¶¶ 28-33. Plaintiff alleges “[o]n the princess.com checkout screen, the

15 purchaser has the option to check a box to insure the reservation for an additional

16 fee.” Id. at 8 ¶ 28. Plaintiff provides a screenshot of the checkout page and states:

17 Within this offer on a third-party checkout page, as with all pages where

Defendants offers the Products, Defendants do not identify assistance

18 benefits, indicate that the assistance fee is for separate, non-insurance

services, do not identify any fee, price, or charge for any such assistance

19 service or benefit that is separate from the premium, and provide the

consumer no means for purchasing the offered insurance policy without

20 paying the assistance fee.

1 Id. at 8-9 ¶¶ 28-29.

2 According to Plaintiff, if consumers continue scrolling down the webpage,

3 the services included in the policy are listed, but “[t]he 24/7 Support is not

4 disclosed as a noninsurance service and the amount charged for any noninsurance

5 services is not listed.” Id. at 9 ¶¶ 30-31. If consumers scroll further, however,

6 “that page discloses that the 24/7 Worldwide Travel Assistance Service is a

7 noninsurance service which is included in the cost of Defendants’ offered

8 insurance services, but does not disclose how much Defendants are charging for

9 them or give consumers the option not to purchase the additional assistance

10 services.” Id. at 9-11 ¶ 32.

11 Plaintiff brings claims for violations of Washington’s Consumer Protection

12 Act (“CPA”), RCW 19.86.010 et seq., a common law breach of contract claim, and

13 a common law breach of the duty of good faith. Id. at 20-25 ¶¶ 58-84. Plaintiff

14 seeks damages, restitution, injunctive relief, id. at 25, and class certification for “all

15 Washington residents who purchased travel insurance from Defendants during the

16 Class period who were charged a fee for the supposed assistance services or

17 benefits included with Nationwide’s travel insurance contracts on top of the

18 applicable insurance premium rate Defendants were authorized to charge for their

19 travel insurance . . . .” Id. at 16 ¶ 48.

20

1 On September 16, 2024, Defendants filed a Motion to Dismiss for Failure to

2 State a Claim, ECF No. 18, and a related Request for Judicial Notice, ECF No. 19.

3 Plaintiff responded, ECF Nos. 24, 25, and Defendants replied, ECF Nos. 26, 27.

4 B. Regulatory Settlement Between the Insurance Commissioner and

Nationwide

5

In 2014, several state departments of insurance began investigating the travel

6

insurance industry, including Nationwide. ECF No. 19-5 at 2 ¶ A.2. Following a

7

three-year investigation, Nationwide entered into a Regulatory Settlement

8

Agreement (“RSA”) with participating state departments of insurance. See id. On

9

or about January 25, 2018, the Washington State Office of the Insurance

10

Commissioner adopted, agreed to, and approved the RSA. See ECF No. 19-6.

11

Under the terms of the RSA:

12

Pursuant to the filing and timing provisions specified in Section C (3) above,

13 and where prohibited by law in a Participating State, Company agrees not to

combine and package the cost of Assistance Services or Travel Cancellation

14 Fee Waivers with the cost of Travel Insurance in its rate filings and in the

sale of its Travel Insurance to consumers, and will contractually prohibit its

15 Distribution Participants from combining and packaging the cost of

Assistance Services or Travel Cancellation Fee Waivers with the cost of

16 Travel Insurance in the sale of its Travel Insurance to consumers. Pursuant

to the filing and timing provisions specified in Section C (3) above, and

17 where combining and packaging the cost of Assistance Services or Travel

Cancellation Fee Waivers with the cost of Travel Insurance is not prohibited

18 by law in a Participating State, Company agrees that it will provide all

disclosures in connection with the sale of the combined and packaged

19 product that are required by Insurance Law in a Participating State.

20 ECF No. 19-5 at 18-19 ¶ 25.

1 LEGAL STANDARD

2 To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain

3 sufficient factual matter, accepted as true, to “state a claim to relief that is plausible

4 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

5 Twombly, 550 U.S. 544, 547 (2007)) . In considering a motion to dismiss for

6 failure to state a claim, the Court must accept as true the well-pleaded factual

7 allegations and any reasonable inference to be drawn from them, but legal

8 conclusions are not entitled to the same assumption of truth. Id. “Threadbare

9 recitals of the elements of a cause of action, supported by mere conclusory

10 statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). “[O]nly a

11 complaint that states a plausible claim for relief survives a motion to dismiss.” Id.

12 at 679 (citing Twombly, 550 U.S. at 556). “Factual allegations must be enough to

13 raise a right to relief above the speculative level[.]” Twombly, 550 U.S. at 555.

14 DISCUSSION

15 Defendants ask the Court to take judicial notice of or incorporate by

16 reference several documents in support of their dismissal motion. ECF No. 19.

17 Defendants also move to dismiss Plaintiff’s Complaint on the following grounds:

18 (1) the CPA exception in RCW 19.86 .170 applies here, (2) travel assistance

19 services are not insurance, (3) the statutes cited by Plaintiff do not give rise to a per

20 se CPA claim; (4) Plaintiff has not alleged a per se CPA violation of WAC 284-30-

1 750, (5) Plaintiff has not plausibly alleged a common law CPA claim, and (6)

2 Plaintiff has not plausibly alleged a claim for breach of the duty of good faith.

3 ECF No. 18 at 13-25. Alternatively, Defendants ask the Court to dismiss the

4 Complaint under the Primary Jurisdiction Doctrine. Id. at 25-26. Lastly,

5 Defendants seek to limit Plaintiff’s claims to the Princess Vacation Protection plan

6 she purchased. Id. at 26.

7 A. Judicial Notice and Incorporation by Reference

8 Defendants ask the Court to take judicial notice of and/or incorporate by

9 reference screenshots and/or documents publicly available through links on non-

10 party Princess’s website (Exhibits A-D); a copy of the RSA, which is publicly

11 available on the website of the Missouri Department of Insurance (Exhibit E); and

12 the Washington Insurance Commissioner’s signature page for the RSA (Exhibit F).

13 ECF No. 19 at 4.

14 When faced with a Rule 12(b)(b) motion to dismiss, a court may consider

15 “documents incorporated into the complaint by reference, and matters of which a

16 court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551

17 U.S. 308, 322 (2007) (citation omitted); see also King v. PennyMac Loan Servs.,

18 LLC, No. 24-CV-5002, 2024 WL 2064056, at *4 n.1 (E.D. Wash. May 8, 2024)

19 (“At the Fed. R. Civ. P. 12(b)(6) stage, ‘[a] court may . . . consider certain

20 materials—documents attached to the complaint, documents incorporated by

1 reference in the complaint, or matters of judicial notice—without converting the

2 motion to dismiss into a motion for summary judgment.’”) (quoting United States

3 v. Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003)).

4 1. Judicial Notice

5 Plaintiff asserts that taking judicial notice of the exhibits is not appropriate

6 because they are not authenticated, and Defendants have not provided evidence

7 Exhibit F, the Washington signature page to the RSA, is publicly available. ECF

8 No. 25 at 7. Plaintiff also asserts that judicial notice of Exhibits A-D, the Princess

9 website documents, is not appropriate because private corporate websites cannot be

10 trusted to be accurate. ECF No. 25 at 8-9.

11 “The court may judicially notice a fact that is not subject to reasonable

12 dispute because it: (1) is generally known within the trial court’s territorial

13 jurisdiction; or (2) can be accurately and readily determined from sources whose

14 accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b).

15 Exhibit E (the RSA) is publicly available. “There is a presumption that

16 public records are authentic and trustworthy.” Bell v. City of Spokane, No. 21-CV-

17 146, 2021 WL 3891068, at *2 (E.D. Wash. Aug. 31, 2021) (citing Gilbrook v. City

18 of Westminster, 177 F.3d 839, 858 (9th Cir. 1999); Harris v. Cty. of Orange, 682

19 F.3d 1126, 1132 (9th Cir. 2012) (noting that a court may take judicial notice of

20 federal and state court records)). Plaintiff argues that Exhibit F (the Washington

1 signature page to the RSA) is not publicly available because Defendants failed to

2 provide a link to the document in their request for judicial notice, but she

3 acknowledged during the hearing that she had no reason to challenge its reliability.

4 Thus, the Court takes judicial Notice of Exhibits E and F.

5 Exhibits A-D are printouts from Princess’s website. Courts within the Ninth

6 Circuit often decline to take judicial notice of private corporate websites due to

7 their reliability. See, e.g., Veridian Credit Union v. Eddie Bauer, LLC, 295 F.

8 Supp. 3d 1140, 1147 n.3 (W.D. Wash. 2017) (“Although a court may consider

9 materials that are properly the subject of judicial notice under Federal Rule of

10 Evidence 201 on a motion to dismiss. . . pages from a party's website generally do

11 not meet those standards . . . .”) (citations omitted); Spy Optic, Inc. v.

12 Alibaba.Com, Inc., 163 F. Supp. 3d 755, 763 (C.D. Cal. 2015) (“[P]rivate

13 corporate websites, particularly when describing their own business, generally are

14 not the sorts of sources whose accuracy cannot reasonably be questioned.”)

15 (citation and quotation marks omitted). Again, however, Plaintiff acknowledged

16 during oral argument that she had no reason to challenge the reliability of the

17 exhibits submitted for the Court’s consideration by Defendants. Therefore, the

18 Court will also take judicial notice of Exhibits A-D.

19 2. Incorporation by Reference

20

1 Plaintiff asserts that “Defendants improperly rely on the Princess vacation

2 protection webpages to dispute Plaintiff’s well-pleaded facts” and that “[n]one of

3 the documents Defendants seek to incorporate by reference are referenced

4 ‘extensively’ in the Complaint.” ECF No. 25 at 9-11. Plaintiff also asserts that

5 Defendants are improperly trying to incorporate by reference these exhibits to

6 prove affirmative defenses. ECF No. 25 at 10.

7 “[I]ncorporation-by-reference is a judicially created doctrine that treats

8 certain documents as though they are part of the complaint itself. The doctrine

9 prevents plaintiffs from selecting only portions of documents that support their

10 claims, while omitting portions of those very documents that weaken—or doom—

11 their claims.” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1102 (9th Cir.

12 2018) (citation omitted).

13 Plaintiff’s claims revolve around the checkout process on the Princess

14 website. Her Complaint repeatedly references the Princess website and even

15 includes several screenshots of the website. See ECF No. 1. The webpages

16 Defendants seek to incorporate by reference are accessible via links shown in these

17 screenshots. See ECF No. 27 at 4-6. Preventing Defendants from supplying the

18 webpages as a whole would “allow for misleading argumentation, in which

19 Plaintiff can cherry-pick . . . terms alleged in the Complaint and preclude

20 Defendant[s] from correcting the record in response.” Sanchez v. Navy Fed. Credit

1 Union, No. EDCV23285, 2023 WL 6370235, at *4 (C.D. Cal. Aug. 14, 2023).

2 Nor is the Court “required to accept as true conclusory allegations which are

3 contradicted by documents referred to in the complaint.” Steckman v. Hart

4 Brewing, Inc., 143 F.3d 1293, 1295-96 (9th Cir. 1998).

5 Plaintiff also argues that Defendants may not introduce documents to

6 establish affirmative defenses. Specifically, Plaintiff asserts that Defendants

7 cannot introduce Exhibits A-D “to prove Plaintiff could not be deceived by the

8 advertisements in the checkout flow” or Exhibits E-F “to prove that Plaintiff’s

9 allegations fall under the RCW 19.86.170 exemption.” ECF No. 25 at 10.

10 Plaintiff’s CPA claims require a showing that a reasonable person would

11 have been misled or deceived by the Princess Vacation Protection plan. See Panag

12 v. Farmers Ins. Co. of Washington, 204 P.3d 885, 894-95 (Wash. 2009) (citations

13 omitted). Whether a reasonable person would have been deceived requires

14 viewing the webpages as a whole. See Khoja, 899 F.3d at 1002 (“[E]ven though

15 the complaint did not ‘allege or describe the contents of the surrounding pages,’ it

16 was proper to incorporate them because the claim necessarily depended on them.”)

17 (citations omitted). Thus, the introduction of Exhibits A-D by Defendants is

18 proper.

19 The RCW 19.86.170 exemption is considered an affirmative defense. See

20 Harris v. U.S. BankCorp, No. 19-CV-00291, 2019 WL 5536402, at *4 (W.D.

1 Wash. Oct. 25, 2019). Thus, the Court does not consider Exhibits E (the RSA) and

2 F (Washington’s approval of the RSA), which support the application of this

3 exemption, to be incorporated by reference. See Khoja, 899 F.3d at 1002 (“[I]f the

4 document merely creates a defense to the well-pled allegations in the complaint,

5 then that document did not necessarily form the basis of the complaint.”).

6 However, as mentioned above, the Court takes judicial notice of those exhibits.

7 In conclusion, the Court takes judicial notice of Exhibits A-F and

8 alternatively finds that Exhibits A-D are incorporated by refence into Plaintiff’s

9 Complaint.

10 B. Whether the CPA Exception in RCW 19.86.170 Applies

11 Defendants assert that the RSA permits the bundling of travel insurance with

12 non-insurance assistance services in Washington and that “[t]he Washington

13 Insurance Commissioner’s approval of the RSA constitutes an affirmative act, and

14 accordingly, the CPA exemption in RCW 19.86.170 applies.” ECF No. 18 at 13-

15 14.

16 Under RCW 19.86.170, the CPA does not “apply to actions or transactions

17 otherwise permitted, prohibited or regulated under laws administered by the

18 insurance commissioner of this state.” “RCW 19.86.170 does not exempt actions

19 or transactions merely because they are regulated generally. The exemption

20 applies only if the particular practice found to be unfair or deceptive is specifically

1 permitted, prohibited or regulated.” Vogt v. Seattle-First Nat. Bank, 817 P.2d

2 1364, 1370 (Wash. 1991). The agency must take an “overt affirmative action

3 specifically to permit the actions or transactions engaged in.” In re Real Est.

4 Brokerage Antitrust Litig., 622 P.2d 1185, 1187 (Wash. 1980).

5 Here, the Court has taken judicial notice of the RSA. Under the terms of the

6 RSA, where prohibited by state law, Nationwide:

7 [A]grees not to combine and package the cost of Assistance Services or Travel

Cancellation Fee Waivers with the cost of Travel Insurance in its rate filings

8 and in the sale of its Travel Insurance to consumers, and will contractually

prohibit its Distribution Participants from combining and packaging the cost of

9 Assistance Services or Travel Cancellation Fee Waivers with the cost of Travel

Insurance in the sale of its Travel Insurance to consumers.

10

ECF No. 19-5 at 18-19 ¶ 25. In states “where combining and packaging the cost of

11

Assistance Services or Travel Cancellation Fee Waivers with the cost of Travel

12

Insurance is not prohibited by law . . . [Nationwide] agrees that it will provide all

13

disclosures in connection with the sale of the combined and packaged product that

14

are required by [law].” Id. at 19 ¶ 25. The Washington Insurance Commissioner

15

has affirmatively approved the RSA. See ECF No. 19-6.

16

Plaintiff argues: (1) RCW 19.86.170 is a fact-specific inquiry and thus it is

17

not appropriate to consider it on a motion to dismiss, and (2) Defendants do not

18

argue with specificity how the Washington Insurance Code “specifically permits

19

the combination of travel insurance with non-insurance travel services or

20

specifically permits any specific disclosure.” ECF No. 24 at 9-10. Plaintiff cites to

1 Harris v. U.S. BankCorp, No. 19-CV-291, 2019 WL 5536402, at *1 (W.D. Wash.

2 Oct. 25, 2019), in which plaintiffs brought an action against KeyCorp for refusing

3 to honor their bonds. KeyCorp argued that the RCW 19.86.170 exception

4 “applie[d] to the allegedly unfair business practice in th[at] case because the

5 National Bank Act [(“NBA”)], 12 U.S.C. § 21 et seq., and the Office of the

6 Comptroller of the Currency (“OCC”) regulate unfair and deceptive practices by

7 national banks.” Id. at *4. The court found the KeyCorp failed to explain, with the

8 required specificity, how the NBA, or OCC regulation, permitted or regulated the

9 alleged practice. Id.

10 In contrast to Harris, the RSA is a specific agreement that has been

11 approved by the Washington Insurance Commissioner and which allows

12 “combining and packaging the cost of Assistance Services or Travel Cancellation

13 Fee Waivers with the cost of Travel Insurance” where not prohibited if the

14 appropriate disclosures are made. ECF No. 19-5 at 19 ¶ 25. WAC 284-17-011

15 sets forth the disclosures that must be made as part of the sale of insurance in

16 Washington. Under WAC 284-17-011(1), “[a] person must not sell, solicit, or

17 negotiate travel insurance in this state unless that person is licensed as an insurance

18 producer[.]” Further, the name and contact information of the licensed producer be

19 disclosed to customers. WAC 284-17-011(4)(a). Here, Plaintiff alleges that AON

20 is the insurance producer. ECF No. 1 at 6 ¶ 22. AON’s name and contact

1 information were disclosed to consumers who purchased the Princess Vacation

2 Protection plan. See ECF No. 19-4 at 2, 4, 24. Nor does Plaintiff allege a violation

3 of WAC 284-17-011.

4 Lastly, as detailed in this Order, Plaintiff has not provided any authority to

5 indicate that Washington law prohibits combining travel insurance with non-

6 insurance travel services.

7 The Court finds that the CPA exemption in RCW 19.86.170 applies.

8 C. Whether Travel Assistance Services Are Insurance

9 Defendants assert that travel-related assistance services included in the

10 Princess Vacation Protection plan are not insurance and thus are not subject to the

11 Insurance Code provisions or regulations on which Plaintiff relies. ECF No. 18 at

12 14-15. Plaintiff responds that Defendants cannot simply characterize these fees as

13 “non-insurance” and that even if they could be characterized as such, they are still

14 improperly bundled with the insurance premium. ECF No. 24 at 13.

15 RCW 48.01.250(2) states, “[t]ravel . . . related products or assistance . . .

16 shall not be considered to be insurance for the purposes of Title 48 RCW.” The

17 statute defines travel related products or assistance to include “travel and touring

18 service, theft or reward service, map service, towing service, emergency road

19 service.” Id.

20 Here, the Princess Vacation Protection plan’s “assistance services” include:

1 • Inoculation information

2 • Travel information including visa/passport requirements

3 • Lost passport/travel documents assistance

4 • Embassy or Consulate Referral

5 • Currency exchange rates

6 • Worldwide public holiday information

7

• Lost baggage search; stolen luggage replacement assistance

8

• Emergency cash transfer assistance

9

• Emergency telephone interpretation assistance

10

• Urgent message relay to family, friends, or business associates

11

• Legal referrals/bail bond assistance

12

• Rental Vehicle Return

13

• ATM locator

14

• Up-to-the-minute information on local medical advisories, epidemics,

15

required immunizations and available preventative measures

16

• Emergency return travel arrangements

17

• Claims Assistance Services

18

ECF No. 19-4 at 28. These are the type of travel related products or assistance

19

governed by RCW 48.01.250(2) and are not insurance.

20

1 Plaintiff also argues, without citation, if the fees were not insurance they

2 would meet the following criteria: “(a) would be clearly distinguished from the

3 insurance premium at the point of sale prior to purchase, (b) would be optional,

4 and (c) would be based on the costs of the assistance service and the demand for

5 such services rather than correlated to underwriting risks.” ECF No. 24 at 13. But

6 RCW 48.01.250(2) includes no such criteria.

7 Finally, Plaintiff argues that even if the travel assistance fees could be

8 characterized as non-insurance “this does nothing to weaken Plaintiff’s allegations

9 that the fees are improperly bundled with the insurance premium.” ECF No. 24 at

10 13. However, if the fees are not insurance, then it is not necessary for them to be

11 approved by the Washington Department of Insurance and, as detailed in this

12 Order, Washington law does not prohibit the bundling of insurance and non-

13 insurance services.

14 The Court finds that the Princess Vacation Protection plan’s “assistance

15 services” are not insurance.

16 D. Whether The Statutes Cited by Plaintiff Give Rise to a Per Se CPA

Claim

17

Defendants assert that Plaintiff has not alleged a violation of RCW ch.

18

48.30, which declares certain insurance practices to be “unfair.” ECF No. 18 at 15.

19

Instead, Plaintiff alleges violations of RCW 48.17.270, 48.19.040, and 48.18.180,

20

which do not “involve conduct declared by the Legislature to be unfair.” Id.

1 Defendants further assert that even if these statutes qualified as per se CPA

2 violations, Plaintiff has not plausibly alleged a violation. Id. at 15-16. Defendants

3 also argue that “[t]he only statute or regulation cited by Plaintiff involving an

4 ‘unfair’ insurance practice is WAC 284-30-750[]” and that Plaintiff has not alleged

5 a violation of this regulation. ECF No. 18 at 17.

6 For a CPA violation, a plaintiff must establish: “(1) an unfair or deceptive

7 act or practice occurred, (2) the act or practice occurred in the conduct of trade or

8 commerce, (3) the act or practice impacted the public interest, (4) the plaintiff

9 suffered an injury to business or property, and (5) the plaintiff can demonstrate a

10 causal link between the unfair or deceptive act or practice and the injury.”

11 Columbia Physical Therapy, Inc., P.S. v. Benton Franklin Orthopedic Assocs.,

12 P.L.L.C., 228 P.3d 1260, 1269 (Wash. 2010) (citation omitted). An unfair or

13 deceptive trade practice may be established by showing that the alleged act

14 constitutes a per se unfair trade practice, including an unfair claims settlement

15 practice under WAC 284-30-330. Indus. Indem. Co. of the Nw., Inc. v. Kallevig,

16 792 P.2d 520, 539 (Wash. 1990); see also Truck Ins. Exch. v. Vanport Homes, Inc.,

17 58 P.3d 276, 283-84 (Wash. 2002) (citing Leingang v. Pierce Cnty. Med. Bureau,

18 Inc., 930 P.2d 288, 297 (Wash. 1997)).

19 Plaintiff alleges violations of WAC 284-30-750 and RCW 48.17.270,

20 48.19.040, and 48.18.180. Specifically, Plaintiff alleges Defendants did not obtain

1 approval for their insurance rates or clearly identifying the rates in violation of

2 RCW 48.19.040 and RCW 48.18.180, and Defendants charged fees in violation of

3 RCW 48.17.270 and WAC 284-30-750. ECF No. 1 at 6-7 ¶¶ 21-22. Violations of

4 RCW 48.17.270, 48.19.040 and 48.18.180 do not constitute a per se unfair trade

5 practice, nor has Plaintiff alleged violations of these statutes or WAC 284-30-750.1

6 1. WAC 284-30-750

7 Defendants assert that WAC 284-30-750 is not applicable, as Plaintiff does

8 not allege that she was charged a fee for the assistance services in excess of the

9 usual amount charged to similarly situated consumers. ECF No. 18 at 17-18.

10 This regulation states:

11 It shall be an unfair practice for any insurance producer . . . providing

services in connection with the procurement of insurance to charge a fee in

12 excess of the usual commission which would be paid to an insurance

producer . . . without having advised the insured or prospective insured, in

13 writing, in advance of the rendering of services, that there will be a charge

and its amount or the basis on which such charge will be determined.

14

WAC 284-30-750.

15

16

1 The Court also notes that Nationwide is not an insurance producer, therefore,

17

RCW 48.17.270 and WAC 284-30-750 do not apply to it. See RCW 48.17.010(6)-

18

(7); RCW 48.01.050. Conversely, Aon is not an insurer and thus RCW 48.19.040

19

does not apply to it.

20

1 Plaintiff alleges that charging for “assistance services” violates WAC 284-

2 30-750. ECF No. 1 at 6-7 ¶ 22. But as previously discussed, such services are not

3 insurance and are not required to be submitted to the Insurance Commissioner for

4 approval. Further, Plaintiff does not allege that she was charged a fee in excess of

5 the usual amount charged to similarly situated customers. Lastly, WAC 284-30-

6 750 only requires the insurance producer to provide notice to the insured of the

7 charges and the amount or basis for the charges. The Princess booking process

8 provided notice that there was a charge for the “assistance services.” See ECF No.

9 19-1.

10 The Court finds that Plaintiff has not alleged a violation of WAC 284-30-

11 750.

12 2. RCW 48.17.270

13 Defendants assert that Plaintiff has not plausibly a violation of RCW

14 48.17.270. ECF No. 18 at 15-16. Under RCW 48.17.270, “[i]f the compensation

15 received by an insurance producer who is dealing directly with the insured

16 includes a fee, for each policy, the insurance producer must disclose in writing to

17 the insured” information including “[t]he full amount of the fee paid by the

18 insured” and “[t]he full amount of any commission paid to the insurance producer

19 by the insurer.” RCW 48.17.270(3) (emphasis added). Plaintiff does not allege

20 that she dealt directly with Defendants. Rather, she alleges that she dealt with non-

1 party Princess. ECF No. 1 at 8, 14 ¶¶ 28, 40. Thus, RCW 48.17.270 is not

2 applicable.

3 The Court finds that Plaintiff has not alleged a violation of RCW 48.17.270.

4 3. RCW 48.19.040

5 Defendants assert that Plaintiff has not plausibly a violation of RCW

6 48.19.040. ECF No. 18 at 16. Under RCW 48.19.040(1), “[e]very insurer or

7 rating organization shall, before using, file with the commissioner every

8 classifications manual, manual of rules and rates, rating plan, rating schedule,

9 minimum rate, class rate, and rating rule, and every modification of any of the

10 foregoing which it proposes.” As detailed above, the Princess Vacation Protection

11 plan’s “assistance services” are not insurance under RCW 48.01.250(2) and thus

12 are not subject to the Insurance Code, including RCW 48.19.040.

13 The Court finds that Plaintiff has not alleged a violation of RCW 48.19.040.

14 4. RCW 48.18.180

15 Defendants assert that Plaintiff has not plausibly alleged a violation of RCW

16 48.18.180. ECF No. 18 at 16-17. Under RCW 48.18.180(1) “[t]he premium stated

17 in the policy shall be inclusive of all fees, charges, premiums, or other

18 consideration charged for the insurance or for the procurement thereof.” “No

19 insurer or its officer, employee, appointed insurance producer, or other

20 representative shall charge or receive any fee, compensation, or consideration for

1 insurance which is not included in the premium specified in the policy.” RCW

2 48.18.180(2). Again, as detailed above, the Princess Vacation Protection plan’s

3 “assistance services” are not insurance under RCW 48.01.250(2). Further, RCW

4 48.18.180 does not require fees and charges to be itemized or separately stated.

5 The Court finds that Plaintiff has not alleged a violation of RCW 48.18.180.

6 E. Whether Plaintiff Has Plausibly Alleged A Common Law CPA Claim

7 Defendants assert that Plaintiff has also failed to allege a CPA claim based

8 on common law unfair or deceptive conduct for two reasons. ECF No. 18 at 18.

9 First, “without a stand-in statute, Plaintiff’s CPA claim is based on (1) alleged

10 misrepresentations regarding Princess’s Vacation Protection plans that simply do

11 not exist, and (2) a ‘failure’ to offer insurance-only packages according to

12 Plaintiff’s preferences or to itemize the price of each service in her Vacation

13 Protection plan.” Id. Second, “Plaintiff fails to allege causation and injury

14 because she paid no more than the price offered and received exactly the services

15 she bargained for.” Id.

16 1. Alleged misrepresentations

17 Defendants contend that Plaintiff failed to plausibly allege unfair or

18 deceptive conduct under the CPA. ECF No. 18 at 18-22. “To prove. . . a practice

19 is an unfair or deceptive act, a claimant need not show intent to deceive or defraud

20 on the part of the seller, only that the practice had the capacity to deceive a

1 substantial portion of the public.” Robinson v. Avis Rent A Car Sys., Inc., 22 P.3d

2 818, 824 (Wash. Ct. App. 2001). “Deception exists ‘if there is a representation,

3 omission or practice that is likely to mislead’ a reasonable consumer.” Panag, 204

4 P.3d at 895 (quoting Sw. Sunsites, Inc. v. Fed. Trade Comm’n, 785 F.2d 1431,

5 1435 (9th Cir.1986)). “[A]n act or practice can be unfair without being

6 deceptive[.]” Klem v. Washington Mut. Bank, 295 P.3d 1179, 1187 (Wash. 2013).

7 To prevail on such a theory, a plaintiff must establish that the act or practice

8 “causes or is likely to cause substantial injury to consumers which is not

9 reasonably avoidable by consumers themselves and not outweighed by

10 countervailing benefits.” Id. (citation and quotation marks omitted).

11 Plaintiff alleges that the Princess Vacation Protection plan was unfair or

12 deceptive because Defendants misrepresented the Vacation Protection plans as

13 solely an insurance product and that the prices were solely for insurance. See ECF

14 No. 1 at 2-3, 14, 19 ¶¶ 4, 42, 56(k). However, this allegation is contradicted by the

15 Princess webpages. “The court need not . . . accept as true allegations that

16 contradict matters properly subject to judicial notice or by exhibit.” Sprewell v.

17 Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001), opinion amended on

18 denial of reh’g, 275 F.3d 1187 (9th Cir. 2001) (citing Mullis v. U.S. Bankr. Ct. for

19 Dist. of Nevada, 828 F.2d 1385, 1388 (9th Cir. 1987)). “Nor is the court required

20 to accept as true allegations that are merely conclusory, unwarranted deductions of

1 fact, or unreasonable inferences.” Id. (citing Clegg v. Cult Awareness Network, 18

2 F.3d 752, 754–55 (9th Cir. 1994)).

3 On the checkout screen, below the Princess Vacation Protection plan, the

4 webpage states, “Enjoy peace of mind with travel protection that lets you cancel

5 for any reason and reimburses for trip interruption and more.” ECF No. 1 at 8 ¶

6 28. This webpage includes details of the benefits included in the Princess Vacation

7 Protection plan, including 24/7 Worldwide Travel Assistance Services, which are

8 listed as “non-insurance” services. Id. at 9-11 ¶¶ 30, 32; see also ECF No. 19-1.

9 Further, this page includes links to the Premium Plan and Standard Plan. See ECF

10 No. 19-2; ECF No. 19-3. In these plan descriptions, travel assistance is listed

11 among other “non-insurance services.” ECF No. 19-2 at 3; ECF No. 19-3 at 3.

12 While Plaintiff claims that she “was not aware of any non-insurance fees in

13 addition to the premium,” ECF No. 1 at 15 ¶ 45, the test for whether conduct is

14 unfair or deceptive under the CPA is not whether an individual plaintiff was

15 deceived, but whether a reasonable consumer is likely to be deceived. Panag, 204

16 P.3d at 895. Based on the actual language of the Princess webpages, a reasonable

17 consumer is not likely to be deceived that they were purchasing only insurance.

18 Plaintiff also alleges that Defendants engaged in unfair or deceptive conduct

19 by not itemizing prices for insurance and non-insurance services. ECF No. 1 at 20

20 ¶ 61. It is not unfair or deceptive to offer and disclose a travel protection plan and

1 the charge for such a plan. See Johnson v. Countrywide Home Loans, Inc., No.

2 C09-5217, 2010 WL 456902, at * (W.D. Wash. Feb. 1, 2010), aff’d, 434 F. App’x

3 693 (9th Cir. 2011) (“It can hardly be an unfair or deceptive practice to disclose

4 and charge a jumbo fee on a jumbo loan.”).

5 Lastly, Plaintiff alleges that Defendants engaged in unfair or deceptive

6 conduct because the cost of the non-insurance portion of the plan outweighs its

7 value and that she would have declined to purchase the non-insurance portion of

8 the Vacation Protection plan if possible. ECF No. 1 at 4, 15-16 ¶¶ 9, 47.

9 Plaintiff’s views regarding the value of portions of the Vacation Protection plan or

10 her desire to purchase only certain portions of the plan does not establish a CPA

11 claim. Cole v. Keystone RV Co., No. C18-5182, 2021 WL 3111452, at *5 (W.D.

12 Wash. July 22, 2021), aff’d, No. 21-35701, 2022 WL 4234958 (9th Cir. Sept. 14,

13 2022) (“At its root, [p]laintiffs’ argument is that [defendant] did not disclose the

14 information to them in their preferred method, which does not itself constitute a

15 deceptive act under the CPA.”).

16 In sum, the Court finds that Plaintiff has not plausibly alleged unfair or

17 deceptive conduct under the CPA.

18 2. Injury

19 Defendants assert that Plaintiff has failed to plausibly allege injury to her

20 business or property. ECF No. 18 at 22. Plaintiff counters that this is a case of

1 Defendants illegally and/or unfairly assessing a surcharge above what they were

2 alleged to charge. ECF No. 24 at 19-21.

3 Plaintiff points to Elgindy v. AGA Serv. Co., No. 20-CV-6304, 2021 WL

4 1176535 (N.D. Cal. Mar. 29, 2021) to support her argument. In Elgindy, the court

5 found that plaintiffs had established injury-in-fact by alleging overpayment in that

6 they “paid specific amounts of money that they would not have paid if [d]efendants

7 had complied with the law, had not bundled the fees with the premiums, or had not

8 hidden the existence of the fees.” Id. at *5 (citation and quotation marks omitted).

9 The court also found:

10 As to their theory that the fees themselves are unlawful or unfair, [p]laintiffs

contend that if [d]efendants followed the laws and regulations, they would

11 not be charging such fees. . . . Likewise, as to their theory that the fees were

not properly disclosed, [p]laintiffs contend that if [d]efendants disclosed the

12 fees to consumers prior to purchase, consumers would not pay for the fees. .

. . On their face, these allegations appear to allege an economic injury.

13

Id. (citations, alteration, and quotation marks omitted).

14

The court in Elgindy rejected an argument by defendants that plaintiffs got

15

what they paid for based on Hinojos v. Kohl’s Corp., 718 F.3d 1098 (9th Cir.

16

2013), in which the Ninth Circuit followed the standard set forth by the California

17

Supreme Court. Id. (noting that defendants’ “argument makes a great deal of

18

sense, and the Court might adopt it if there were no law to the contrary”). In sum,

19

Plaintiff’s emphasis on Elgindy is misplaced, as Elgindy was addressing California

20

law.

1 Here, Plaintiff paid for and received a Travel Protection plan. See McGee v.

2 S-L Snacks Nat’l, 982 F.3d 700, 706 (9th Cir. 2020) (“The economic injury is

3 calculated as the difference in value between what was bargained for and what was

4 received.”) (citation and quotation marks omitted). Thus, the Court finds that

5 Plaintiff has not plausibly alleged an injury to her business or property.

6 In conclusion, the Court finds that Plaintiff has not plausibly alleged a

7 common law CPA claim.

8 F. Whether Plaintiff Has Plausibly Alleged A Claim For Breach Of The

Duty Of Good Faith

9

Defendants assert that Plaintiff has not alleged either a common law good

10

faith and fair dealing claim or an insurance bad faith claim. ECF No. 18 at 23.

11

“Under Washington law, ‘[t]here is in every contract an implied duty of

12

good faith and fair dealing’ that ‘obligates the parties to cooperate with each other

13

so that each may obtain the full benefit of performance.’” Rekhter v. State, Dep’t

14

of Soc. & Health Servs., 323 P.3d 1036, 1041 (Wash. 2014) (quoting Badgett v.

15

Sec. State Bank, 807 P.2d 356, 360 (Wash. 1991)). This duty “requires only that

16

the parties perform in good faith the obligations imposed by their agreement.”

17

Badgett, 807 P.2d at 360 (citation omitted). “Thus, the duty arises only in

18

connection with terms agreed to by the parties.” Id. (citations omitted).

19

Plaintiff does not allege that a contract existed between herself and

20

Defendants at the time that the alleged violation occurred – during the Princess

1 checkout process. Thus, Defendants did not yet have a duty to perform in good

2 faith the obligations imposed in their agreement. Nor does Plaintiff point to any

3 specific contact provision where Defendants failed to act in good faith.

4 The Court finds that Plaintiff has not alleged a common law claim for breach

5 of duty of good faith and fair dealing.2

6 G. Leave to Amend

7 Plaintiff asks the Court for leave to amend any defects the Court identifies.

8 ECF No. 24 at 25. “If a complaint is dismissed for failure to state a claim, leave to

9 amend should be granted unless the court determines that the allegation of other

10 facts consistent with the challenged pleading could not possibly cure the

11 deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393,

12 1401 (9th Cir. 1986) (citing Bonanno v. Thomas, 309 F.2d 320, 322 (9th Cir.

13 1962)). “A district court does not err in denying leave to amend where the

14

2 Alternatively, Defendants request that the Court dismiss the case under the

15

primary jurisdiction doctrine. ECF No. 18 at 25-26. Because the Court finds that

16

Plaintiff has failed to plead a claim under Federal Rule of Civil Procedure 12(b)(6),

17

the Court does not address this alternative argument. For the same reason, the

18

Court does not address Defendants’ argument that Plaintiff’s claims are limited to

19

the Princess Vacation Protection plan she purchased. ECF No. 18 at 26.

20

1 amendment would be futile.” DeSoto v. Yellow Freight Sys., 957 F.2d 655, 659

2 (9th Cir. 1992) (citation omitted). Plaintiff did not offer any facts in her briefing or

3 at the hearing which would allow the Court to believe that she could possibly cure

4 the deficiencies described in this Order. Plaintiff’s own Complaint, as well as the

5 exhibits that Plaintiff acknowledged she had no reason to challenge, belie her

6 claims. Further, Plaintiff has not pointed to any statutes or regulations that support

7 her claims. Therefore, the Court finds amendment is futile and denies Plaintiff’s

8 request for leave to amend.

9 Accordingly, IT IS ORDERED:

10 1. Defendants’ Motion to Dismiss, ECF No. 18, is GRANTED.

11 2. Defendants’ Request for Judicial Notice, ECF No. 19, is GRANTED

12 IN PART.

13 3. All claims are DISMISSED with prejudice.

14 4. All pending motions, if any, are DENIED as moot.

15 5. All pending dates and deadlines are STRICKEN.

16 IT IS SO ORDERED. The District Court Executive is directed to enter this

17 Order, enter judgment, provide copies to the parties, and CLOSE the file.

18 DATED January 15, 2025.

19 s/Mary K. Dimke

MARY K. DIMKE

20 UNITED STATES DISTRICT JUDGE