### UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA SUSAN WHITING, ) 

### Plaintiff, 

### v. ) ) ) 

### ) Civil Case No. 09-455 (RJL) ) 

### AARP and UNITED HEALTHCARE INSURANCE COMPANY, ) ) ) 

### Defendants.

### ~) MEMORANDUM OPINION (MarchU, 2010) [#15 and #17] Plaintiff, Susan Whiting ("Whiting"), brings this action againstAARP and United HealthCare Insurance Company ("United HealthCare" and, together with AARP, "defendants") alleging breach ofcontract, violation ofthe District ofColumbia Consumer Protection Procedures Act ("CPPA"), and unjust enrichment. Currentlybefore the Court

are AARP's Motion to Dismiss Counts II, III, and IV ofthe Complaint for failure to state

a claim upon which reliefcan be granted pursuant to Fed. R. Civ. P. 12(b)(6) and United HealthCare's Motion to Dismiss Counts I, II, and III ofthe Complaint, also pursuant to Rule 12(b)(6). Upon consideration ofthe parties' pleadings, relevant law, and the entire record herein, the Court GRANTS both defendants' motions. 

### BACKGROUND I. The AARP Medical Advantage Plan Plaintiffis a resident ofArizona and a member ofAARP. CompI.,-r 6. In or around August 2007, Whiting received a letter signed by the Vice President ofMemberServices, AARP Health Care Options that described the AARP Medical Advantage Plan, which has been underwritten by United HealthCare since 2003 and characterizedby the defendants as "an affordable alternative to major medical insurance." Id. ,-r,-r 11, 12, 14;

see also Deci. ofScottM. Edson in Support ofDef. 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 "ifyou're betweenjobs, retired early, or find yourselfneeding 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 "AARPMedical Advantage Plan is not a major medical health plan, but is a good option ifyou need essential health benefits today at an affordable price." Edson Deci. Ex. C. The marketing materials also acknowledged thatAARP "is notthe insurer" but instead "contracts with insurers to make coverage available to AARP members." Id. On September 12,2007, at the age of59, Whiting applied for the AARP Medical Advantage Plan and selected the Gold level ofcoverage. 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 ifthe 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 plaintifffailed to attached to the Complaintthe 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). 2Certificate ofInsurance for the AARP Medical Advantage Plan was included with this letter. Id. The first page ofthe Certificate ofInsurance states, "Benefits are payable as shown in the Schedule ofBenefits for" eight listed categories ofmedical costs, including Radiology Services and LaboratorylPathology Services. CompI.,-r 35. In a section entitled "WHATIS COVERED," the Certificate provides that "United HealthCare will paythe Applicable Benefit shown in the Schedule ofBenefits 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 ofInsurance then specifies what is covered in each ofthe eight listed categories ofmedical costs, including the two at issue in this case: 

### Radiology Benefit

- Ifyou incur a charge for a Radiology Service performed in an outpatientsetting, a Radiology Benefit is payable, up to a maximum of$2,700.00 perprocedure

.... Note: Ifyou are admittedto the Hospital as an inpatientdirectly from the emergencyroom orobservationroom, no RadiologyBenefits arepayable for services performed while you were confined in the emergency room or observationroom. 

### LaboratorylPathology Benefit

- If you incur a charge for a Laboratory/ Pathology Service performed in an outpatient setting, a LaboratorylPathologyBenefitis payable, up to a maximum of$1,600.00per procedure

.... Note: Ifyou are admittedto the Hospital as an inpatientdirectlyfrom the emergencyroom orobservationroom, no LaboratorylPathologyBenefits arepayablefor servicesperformedwhileyouwereconfinedintheemergency room or observationroom. 3Edson Deci. Ex. D at 7 (italicized emphasis added); Compi.**~** 39. The Certificate next identifies a series ofexclusions underthe heading "WHATIS NOT COVERED," including: 

### Inpatient Confinements That Are Not Covered

- An inpatient Hospital confinement is not covered ifthe primary purpose ofthe confinement is to provide any ofthe following types ofcare: (1) care ofthe 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 custodialcare; (4) residential care orcare ofthetypeprovidedinadomiciliary unit; (5) care ofthe type provided in a hospice; (6) care ofthe type provided in an Ambulatory Surgical Center or dialysis center; or (7) care consisting primarily ofscheduled 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 ofthe rates at which specific rates will be paid. Edson Deci. Ex. D at 12-17; Compi.**~~** 46-47. The first two pages ofthe Schedule ofBenefits set forth the benefits payable under each ofthe eight categories ofmedical costs listed in the "WHAT IS COVERED" section. Edson Decl. Ex. D at 5, 12-13. Forboth the Radiology Benefit and the LaboratorylPathology Benefit, the Schedule ofBenefits refers to additional tables that more specifically enumerate the rates at which coveredbenefits will bepaid. Id. at 17. The monthly premium for the Gold level ofcoverage 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 monthlypremiums 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 emergencyroom 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 ofthis 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 notpay for, among other things, any laboratory/pathology services orradiology services, leaving the plaintiff with an outstanding bill of$39,868.95. Id.**~** 30. After United HealthCare refused to pay the remainder ofher hospital bill, Whiting submitted claims to United HealthCare for the medical expenses she incurred, including the radiology and laboratory services. Compl.**~** 31. Inresponse to her claims, United HealthCare stated, "Asthe services by associated radiologists on 9/23/08-9/24/08 were

5performed 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 underyourplan. Benefits are only payable whenperformed

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, plaintifffiled this suit as a purported class action against United HealthCare and AARP.2 Whiting asserts four causes ofaction: (1) breach of contract against United HealthCare only; (2) breach ofa third-party contract against both United HealthCare and AARP; (3) violation ofthe 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 ofReview Federal Rule ofCivil Procedure 12(b)(6) provides that a district court shall dismiss

a complaint for "failure to state a claim upon which reliefcan 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 ofthe Court. Minute Order Granting Unopposed Mot. for Extension ofTime to File Mot. for Class Certification, June 2, 2009. 6favor, the Court need not accept either inferences "unsupported by the facts laid set out in the complaint" or "legal conclusions cast in the form offactual 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 ofhis entitle[ment] to reliefrequires more than labels and conclusions, and a formulaic recitation ofthe elements ofa cause of action will not do." BellAt!. 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 reliefthat is plausible on its face." Id. at 570. "A claim has facial plausibility when the plaintiffpleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroftv. Iqbal, 129 S.Ct. 1937, 1949 (2009). This plausibility standard "asks for more than a sheerpossibility that a defendant has acted unlawfully." Id. In addition, "when the allegations in a complaint, however true, could not raise a claim ofentitlement to relief, 'this basic deficiency should

... be exposed at the point ofminimum expenditure oftime and money by the parties and the court.'" Twombly, 550 U.S. at 558 (quoting 5WRIGHT &MILLER § 1216 at 233-234) (alteration in original). 

### II. Count I: Breach ofContract Plaintiffalleges in Count I ofher complaintthat by "reject[ing] Mrs. Whiting's

7demand for payment for radiology and laboratory/pathology services that were performed during her confinement as an inpatient in the Medical Center
... DefendantUnited HealthCare breached its contractwith Mrs. Whiting." CompI.**~** 83. As a result ofUnited HealthCare's alleged breach, Whiting asserts that she has been "injured in that Defendant United HealthCare has refused to pay for services covered underthe AARP Medical Advantage Plan." Id.**~** 84. I disagree. As an initial matter, Whiting and United HealthCare disagree as to whether Arizona or District ofColumbia law should apply. See Def. United HealthCare's Mot. to Dismiss ("United HealthCare's Mot.") 11 n.4; PI.'s Opp'nto United HealthCare's Mot. 14-19. However, the Court need not determine whichjurisdiction's lawprevails atthis pointbecause there is no conflict oflaw regarding the specificpleading deficiency asserted in United HealthCare's motion to dismiss Count I. See YWCA 

### v. AllstateIns. Co., 275 F.3d 1145, 1150 (D.C. Cir. 2002). Under both Arizona and District ofColumbia law, the text ofan insurance contract controls ifit is unambiguous. See Roberts v. State Farm Fire & Cas. Co., 705 P.2d 1335, 1336-37 (Ariz. 1985); OldAm. Ins. Co. 

### v. Tucker, 223 A.2d 334, 336 (D.C. 1966). Here, plain language ofthe Certificate ofInsurance is clear and unambiguous that it does notprovide the radiology and laboratory/pathology benefits that plaintiffseeks, and thus United HealthCare's denial ofcoverage ofthese services was not a breach ofcontractbecause they were not owed to Whiting under the Certificate ofInsurance. How so?

8Whiting asserts that the radiology and laboratory/pathology servicesperfonned "during her confinement as an inpatient" were covered under the AARP Medical Advantage Plan. Compl.**~** 83. However, nothing in the Certificateprovides for the payment ofradiology, laboratory, orpathology services perfonned during inpatient confinement. In fact, the Radiology Benefit and LaboratorylPathology Benefitprovisions in the "WHATIS COVERED"section ofthe Certificate expressly states thatradiology and laboratory/pathology benefits are payable when such services are "perfonned in an outpatient setting." Edson Decl. Ex. D at 7 (emphasis added). Plaintiffherselfquotes this same language in the Complaint. See Compi.**~~** 39(a), 40. Moreover, the Certificate ofInsurance, when read as a whole, is unambiguous with respect to this limitation ofcoverage. In fact, the Radiology Benefit and the LaboratorylPathology Benefitprovisions in the "WHATIS COVERED" section include a "Note" that there shall be no benefitpayable for such services perfonned in the emergency room or observationroom, both ofwhich are outpatient settings, ifthe insured is later admitted as an inpatient directly from the emergency or observation room. See Edson Decl. Ex. D at 7. Ifthe Court were to use the plaintiffs interpretation ofthe Certificate, this Note would produce a nonsensical result: benefits would be payable for services perfonned both on an outpatientbasis and on an inpatientbasis, 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. SeeAm.

9FamilyMut. Ins. Co. v. White, 65 P.3d 449,453 (Ariz. Ct. App. 2003); 1010Potomac Assocs. v. GroceryMfrs. of Am., Inc., 485 A.2d 199,205 (D.C. 1984); see also RESTATEMENT (SECOND) OF CONTRACTS § 203(a) (1981) (cited in 1010PotomacAssocs., 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 partunreasonable, unlawful, or ofno effect

..."). Rather, the Note confirms United HealthCare's interpretationthatunder Certificate ofInsurance for the AARP Medical Advantage Plan, there is no inpatient benefit for radiology, laboratory, andpathology services. Finally, Whiting's argument that such services are necessarily covered because the "WHA T IS NOT COVERED" section fails to include an explicit exclusion ofinpatient radiology orlaboratory/pathology services is similarly to no avail. See Pl.'s Opp'nto United HealthCare's Mot. 25-26. The purpose ofthe "WHATIS NOT COVERED" section, including the more specific provision "Inpatient Confinements ThatAreNot Covered," is to exclude those benefits that were nototherwise excluded: "United HealthCare will paythe Applicable Benefit shown in the Schedule ofBenefits 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 inpatientradiology and laboratory/pathology services in the respective benefits provisions in the "WHAT IS COVERED" section, it is immaterial thatthe list of exclusions in the "WHAT IS NOT COVERED" section does not also mention such

10servIces. See Us. Fid. & Guar. Corp. v. AdvanceRoofing & 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 ofcontract claim against United HealthCare must fail

as a matter oflaw because the contract on which she relies-i.e., the Certificate of Insurance-gives her no entitlementto the coverage she seeks, and thus United Healthcare's denial ofcoverage was not a breach. Absent any breach ofcontract, Count I must be dismissed for failure to state a claim upon which reliefmay be granted. 

### III. Count II: Third Party Beneficiary Claim for Breach ofContract In Count II, Whiting alleges thatthe defendants "entered into a contractpursuant to which United HealthCare issued Group PolicyNo. G-36000-5 to the Trustees ofThe AARP Insurance Plan." Compi.**~** 86.4 She claims that the purpose ofthis contract was "to 'make coverage available to AARP members,'" id.**~** 87, and that she is a third-party beneficiary ofthis contract, id.**~** 88. She alleges that United HealthCare's failure to pay for her inpatient radiology and laboratory/pathology services was a breach ofits
Whiting also argues that ifthe Court determines that the Certificate is ambiguous with respect to the coverage ofinpatient radiology, laboratory, and pathology services, any doubt must be resolved against United HealthCare. See PI.'s Opp'nto 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; OldAm. Ins. Co., 233 A.2d at 336.

4 In dismissing CountII, the Court does not considerwhether AARP, as opposed to the AARP Trustees, is the properparty with respect to the third-party beneficiary claim. 11agreement 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 Herallegations ofharm as a third-party beneficiary to a contract between the defendants are entirely redundant ofher breach ofcontract claim against United HealthCare. See Compl. ,-r 89 ("By virtue ofUnited HealthCare's failure to pay for covered services underthe 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 herplan. The fact that Whiting desires

more coverage beyond whatherpolicy provides does not give rise to a legally cognizable

cause ofaction against either defendant. Therefore, her third-party beneficiary claim for breach ofcontract against United HealthCare and AARP must be dismissed for failure to state a claim upon which reliefcan be granted.

Because Whiting has not identified the specific contractunder which she claims to be a third-party beneficiary, the Court cannot determine whetherArizona or District of Columbia law applies. This distinction is irrelevant for the purposes ofdismissing Count II, however, because bothjurisdictionsrequire a third-party beneficiary to plead facts showing that she is the intended beneficiary ofthe contract at issue andthat the defendant breached a duty to her created by the third-party contract. See Sherman v. FirstAm. 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 ofColumbia law). 12IV. Count III: Violation ofthe District ofColumbia's Consumer Protection Procedures Act Whiting next alleges that both defendants violated the District ofColumbia's CPPA by misrepresenting the extent ofcoverage provided under the AARP Medical Advantage Plan. The alleged misrepresentations fall into two categories: (1) thatthe AARP Medical Advantage Planprovided 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 ofColumbia's CPPA or the comparable Arizona statute, ARIZ. 

### REv. STAT. ANN. § 44-1522, governs this claim.6 Given the different pleading requirements under District ofColumbia 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 ofthe forum state supplies the applicable choice-of-Iaw standard. See Klaxon Co. v. StentorElec. MIg. Co., 313 U.S. 487, 496 (1941). Under District ofColumbia law, courts employ a "modified governmental interests analysis which seeks to identify thejurisdictionwith the most significant relationship to the dispute." Washkoviak v. StudentLoanMktg. Ass 'n, 900 A.2d 168, 180 (D.C. 2006) (internal quotation marks omitted). Inthis analysis, the

6 AARP accepts Whiting's allegation that she is properlyproceeding under the District ofColumbia's CPPA for the purposes ofAARP's motion to dismiss. See AARP's Mot. to Dismiss ("AARP's Mot.") 12 n.S. 13Court "evaluate[s] the governmental policies underlying the applicable laws and detennine[s] whichjurisdiction'spolicy would be more advanced by the application ofits law to the facts ofthe case underreview." Id. The Court also considers the four factors listed in the Restatement (Second) ofConflict ofLaws § 145: (1) where the injury occurred; (2) where the conduct causing the injury occurred; (3) the parties' domicile, residence, nationality, place ofincorporation, andplace ofbusiness; and (4) the place where the relationship is centered. Id. Using this framework, I find that the District ofColumbia's CPPA does apply to this case. As for the governmental policies underlying the applicable laws, both the District ofColumbia and Arizona have a strong and equal interest in ensuring that its corporate citizens refrain from misrepresentations. With respectto the four Restatement factors, neither Whiting nor United HealthCare is a resident ofthe District ofColumbia, but the Complaint, the factual assertions ofwhich are accepted as true, states that "DefendantAARP is located in this District and Defendants AARP and United HealthCare have, at all relevanttimes, transacted business in this District." Compi.**~** 10. In addition, the Complaint asserts that "the Certificate ofInsurance states that the policy is 'delivered in and governed by the laws ofthe District ofColumbia.'" Id. Based on these facts, the District ofColumbiahas a qualitatively greater interest in this controversy, and thus District ofColumbia law applies. See Washkoviak, 900 A.2d at 182. The District ofColumbia'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 ofparticular standard, quality, grade, style, or model, ifin fact they are ofanother; (e) misrepresent as to a material fact which has a tendency to mislead; (f) fail to state a material fact ifsuch failure tends to mislead

.... D.C. Code § 28-3904. "[A] claim ofan unfair trade practice [underthe CPPA] is properly considered in terms ofhowthe 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 ofmisrepresentations, that the AARP Medical Advantage Planprovided comprehensive or major medical insurance, Whiting has failed to identify any conduct actionable underthe 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 AARPMedical Advantage Planprovides an "alternative"to "majormedical insurance"; that the plan was appropriate for individuals who were "betweenjobs, [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 "bridgebetween 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 thatthe AARP Medical Advantage Plan constituted comprehensive, major medical health insurance. 15The letter that Whiting received infonning her ofthe AARP Medical Advantage Plan described it as "an alternative plan that is notmajor medical, yetprovides 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 nota majormedicalhealthplan, but is a good option ifyou need essential health benefits today at an affordable price." Edson Deci. Ex. C (emphasis added). The first page ofthe Certificate ofInsurance states, in all capital letters, "THIS CERTIFICATE PROVIDES LIMITEDBENEFITSAND DOESNOTMEETTHE STANDARDS OFA MEDICARE SUPPLEMENT, A LONG TERM CARE, ORA MAJOR MEDICAL PLAN." Edson Decl. Ex. D at 1(emphasis added). Surely a reasonable consumerwould have concluded from reading these documents that the AARP Medical Advantage Plan was nota major medical plan and instead conferred, to quote the Certificate ofInsurance directly, "limited benefits." Quite simply, there is no misrepresentation here, and no reasonable consumer would have been mislead. These documents accurately portrayed thatthe AARP Medical Advantage Plan was an "alternative" plan to a major medical plan. As such, it would not provide comprehensive coverage like that ofa major medical plan. 7

7 Furthennore, even when viewed in isolation, other statements that Whiting cites-thatthe policy provides "peace ofmind" and "essential health benefits" or "is a smart option"-aretoo 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 ofa seller as to the degree ofquality ofhis product, the truth or falsity ofwhich cannot be precisely detennined." Tietsworth 

### v. Harley-Davidson, Inc., 677 N.W.2d 233,245 (Wis. 2004) 16As to the second category ofalleged misrepresentations, thatthe AARP Medical Advantage Plan covered inpatientradiology, laboratory, and pathology services, I have already concludedthat the Certificate ofInsurance 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 ofcoverage. 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 ofthese clear descriptions ofwhat was covered under the AARP Medical Advantage Plan, none ofthe "misrepresentations" that the plaintiffalleges are sufficientto establish a violation
(quoted in Pearson, 961 A.2d at 1076); see alsoMargolis v. U-HaulInt'lInc., 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 unfairtrade practice under the CPPA. See Pearson, 961 A.2d at 1076; see alsoHoyte 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 ofsuperiority' that is non-actionable puffery."); Wells v. AllstateIns. Co., 210 F.R.D. 1,3 n.3 (D.D.C. 2002) (citing summaryjudgmentruling that "the slogan 'You're in good hands with Allstate' is mere puffery not actionable as false ormisleading advertising")

.
8 Whiting does not allege any advertisement ofa specific benefitthatwas not covered. In fact, she expressly acknowledges receiving coverage for many expenses, including a portion ofher hospital stay, the surgeon who performedher surgery, and ten physician visits in the Medical Center. Compl.**~** 29. 17ofthe CPPA underthe reasonable consumer standard. Therefore, Whiting's claims under the CPPA against both United HealthCare and AARP mustbe dismissed. 9 

### V. Count IV: Unjust Enrichment Finally, Whiting alleges AARP was unjustly enrichedby virtue ofthe "royalties and other fees [it received] from United HealthCare in connection withthe sale ofthe AARP Medical Advantage Plan with the AARP brandname." Compl.,-r 102. Whiting asserts that "[t]he insurancepremiums United HealthCare set, charged and accepted from Mrs. Whiting

... reflected the royalties and other fees payable by United HealthCare to AARP." Id. Whiting claims thatbecause she paid herpremiums under the AARP Medical Advantage Plan but "received scant coverage and incurred unreimbursed medical costs," AARP was improperlybenefitted. Id. Not quite. Unjust enrichment is an equitable doctrine under which a plaintiffmay recover "when: (1) the plaintiffconferred a benefit on the defendant; (2) the defendant retains the benefit; and (3) under the circumstances, the defendant's retention ofthe benefit is unjust." News World Commc'ns, Inc. v. Thompsen, 878 A.2d 1218,1222 (D.C. 2005).\0

9 Becausethe Court finds that Whiting has failed to allege any actionable conduct, the Court does not considerAARP's arguments regarding nonprofit organization activity or the definition of"merchant"underthe CPPA.

IO The Court need not choose betweenDistrict ofColumbia 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; TrustmarkIns. 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 betweenthe enrichment and the impoverishment; (4) the absence of justification for the enrichment 18Under the facts ofthis case, it is clearthat AARP was not unjustly benefittedby 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 ofher contract with United HealthCare. Compare Compi.**~** 90 ("As a direct andproximate result ofUnited HealthCare's breach ofits contract with AARP, Mrs. Whiting and member ofthe Class

... have failed to receive coverage for services for which benefits were payable and have beenpayingpremiums for scant coverage."), with Compi.**~** 102 ("Mrs. Whiting and the members ofthe Class paidtheir premiums, butreceived scant coverage and incurred unreimbursed medical costs that United HealthCare [sic]."). In short, she is seekingboth reimbursement for "premiums paid" to United HealthCare, Compi. Prayer for Relief(c), and "restitutionby AARP of amounts unjustly received as royalties," id. Prayer for Relief(t), although she alleges that the premiums she paid "reflectedthe royalties and other fees payable by United HealthCare to AARP," id.**~** 102. Plaintiffdoes not allege how herpremium amounts

and the impoverishment; and (5) the absence ofa legal remedy.").

1J AARP does not assert that Whiting's unjust enrichment claim shouldbe 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 contractwith United HealthCare); Reply Mem. in SUpp. ofAARP's Mot. 16 (same). As such, the Court does not consider whether Whiting's membership in AARP indicates the existence ofan express contract that precludes Whiting's unjust enrichment claim againstAARP. See, e.g., Schiffv. Am. Ass 'n of RetiredPers., 697 A.2d 1193, 1194 & n.2 (D.C. 1997). 19were calculated. Having already found thatthere was no breach ofcontract and no misrepresentation ofcoverage in violation ofthe CPPA, Whiting cannotprevail on her unjust enrichment claim against AARP. Simplyput, AARP wasjustly enrichedby whateverroyalties it received from United HealthCare thatwere derived from the premiums Whitingpaidunderthe AARP Medical Advantage Plan. Whiting received the benefits she paid for, and AARP thus received the royalties it was due. Moreover, Whiting was aware priorto her enrollment in the AARP Medical Advantage Program that AARP would "receive[] an annual royalty from United HealthCare for the use ofthe 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 ofwhether 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. PaulFire & 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 ofher inpatientradiology and laboratory/pathology services, it is even clearerthat AARP was not unjustly enriched by virtue ofthe royalty it received



### 20from 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 ofthe 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 whateverportion ofherpremiums reflect royalties paidby United HealthCare to AARP shouldbe denied as too remote. 21