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 ("CPP A"), 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, 605 F. Supp. 2d 20,23 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. Id. 

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)." 

Id. ,-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., 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 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, 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 

relief that is plausible on its face." Id. at 570. "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, 129 S.Ct. 1937, 

1949 (2009). This plausibility standard "asks for more than a sheer possibility that a 

defendant has acted unlawfully." Id. 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, 550 U.S. at 558 (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., 275 F.3d 1145, 1150 (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., 705 P.2d 1335, 1336-37 (Ariz. 1985); Old Am. Ins. Co. v. Tucker, 

223 A.2d 334, 336 (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, 65 P.3d 449,453 (Ariz. Ct. App. 2003); 1010 Potomac 

Assocs. v. Grocery Mfrs. of Am., Inc., 485 A.2d 199,205 (D.C. 1984); see also 

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

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 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 

"WHA T 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., 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 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,'" id. ~ 87, and that she is a third-party 

beneficiary of this contract, id. ~ 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, 705 P.2d at 1336-37; 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., 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 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 

CPP A 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 id. ~~ 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, 275 F.3d at 1150. 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., 313 U.S. 487, 496 (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, 

900 A.2d 168, 180 (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." Id. 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, 900 A.2d at 182. 

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 .... 

D.C. Code § 28-3904. "[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, 961 A.2d 1067, 1075 (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 CPP A. 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., 677 N.W.2d 233,245 (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)." Id. 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, 961 A.2d at 1076); 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., 911 F.2d 242,246 (9th Cir. 1990)). Puffery cannot be the 

basis for a claim for unfair trade practice under the CPP A. See Pearson, 961 A.2d at 

1076; see also Hoyte 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 of superiority' that is non-actionable puffery."); Wells v. Allstate Ins. Co., 210 

F.R.D. 1,3 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." Id. 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. Id. 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, 878 A.2d 1218,1222 (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 CPP A. 

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, 878 A.2d at 1222; Trustmark Ins. 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 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," id. Prayer for Relief (t), although she alleges that 

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

HealthCare to AARP," id. ~ 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., 697 A.2d 1193, 1194 & n.2 (D.C. 1997). 

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were calculated. 

Having already found that there was no breach of contract and no 

misrepresentation of coverage in violation of the CPP A, 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., 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 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. 

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