RTFP – Refusal to Read the Full Policy Doesn’t Require Insurer to Fulfill Insured’s Belief
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Posted on May 20, 2022 by Barry Zalma
Ibaldo Arencibia’s purchased a travel insurance policy – one he believed to be a broad, “no-fault” policy. When the insurer declined to provide coverage for a canceled trip, Arencibia sued. Arencibia appeals the district court’s dismissal of his claims for unjust enrichment and violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) and the lower court’s refusal to allow him to amend his complaint.
In Ibaldo Arencibia v. AGA Service Company d.b.a. Allianz Global Assistance, Jefferson Insurance Company, No. 21-11567, United States Court of Appeals, Eleventh Circuit (May 12, 2022) the Eleventh Circuit resolved the dispute.
THE ALLEGATIONS
On August 17, 2019, Arencibia purchased a roundtrip airline ticket on American Airlines’ website from Miami, Florida, to Bogota, Colombia. When booking his ticket, Arencibia was offered the option of purchasing travel insurance from AGA Service Company, doing business as Allianz Global Assistance (“Allianz”). Arencibia decided to purchase the travel insurance in exchange for the payment of a $36.83 premium. Following his purchase, Allianz emailed Arencibia a copy of the 36-page Individual Travel Insurance Policy (the “Policy”), which provided that he could cancel the Policy for any reason within ten days of purchase and receive a full refund.
Later, Arencibia was offered a stint of temporary employment in the United States on dates that overlapped with his planned trip to Bogota. Arencibia alleges that, “[t]hinking he was ‘insured,” he telephoned Allianz and was told that “his work conflict was not covered by his [travel insurance] policy.”
The Allianz representative directed Arencibia to cancel his flight and submit a claim under the Policy to “see what could be done.” Arencibia did so, and received a letter from Allianz formally declining to provide coverage under the Policy. Allianz advised that the Policy is a named perils travel insurance program, which means it covers only the specific situations, events and losses included in the Policy, and only under the conditions described. Trip cancellation due to being required to work is not included among those reasons.
Based on this theory, Arencibia sued American Airlines, Allianz, and Jefferson, alleging claims for declaratory relief, unjust enrichment, violation of the Florida Deceptive and Unfair Trade Practices Act, violation of the federal RICO statute, and false advertising.
All three defendants filed motions to dismiss and the USDC granted American Airlines’ motion to dismiss and two district courts, one in Texas and another in Florida dismissed the amended complaint in its entirety without leave to amend.
DISCUSSION
Although the district court dismissed all Arencibia’s claims, on appeal he challenges the dismissal of just two – his claims for unjust enrichment and for RICO violations.
Unjust Enrichment
The district court dismissed Arencibia’s unjust enrichment claim for two independent reasons. First, it held that there is no private right of action under Florida’s Unfair Insurance Trade Practices Act (FUITPA) for damages caused by false or deceptive representations concerning insurance coverage. Second, it held that the unjust enrichment claim was due to be dismissed because a valid contract existed between the parties.
The Eleventh Circuit concluded that since a valid contract existed between Arencibia and the insurers there was no unjust enrichment and the USDC’s decision was affirmed. Under Florida law, to state a claim for unjust enrichment, a party must establish all the following:
a benefit conferred upon a defendant by the plaintiff,
the defendant’s appreciation of the benefit, and
the defendant’s acceptance and retention of the benefit under circumstances that would make it inequitable for him to retain it without paying the value thereof. [Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1274 (11th Cir. 2009)]
The general rule in Florida is that the equitable remedy of unjust enrichment is unavailable if an express contract exists. [Ocean Commc’ns, Inc. v. Bubeck, 956 So.2d 1222, 1225 (Fla. 4th DCA 2007).]
The facts demonstrated that the insurers did not misrepresent the terms of the Policy. The Policy expressly warns consumers that Flight cancellation coverage is not unlimited.
The Policy also details the “covered reasons” that would trigger coverage – for example, if the insured or a family member became ill or injured, if the insured is in a traffic accident on the departure date, or if the insured is required to attend a legal proceeding during the trip.
Even if Arencibia did not read the terms of the Policy before purchasing it, the Eleventh Circuit agreed with the district court that Arencibia was on inquiry notice that “[t]erms, conditions, and exclusions apply” because the hyperlink in the offer box was conspicuous and plainly disclosed.
In addition, Arencibia does not deny that he received a full copy of the Policy shortly after his purchase and that he had ten days in which to review the Policy and cancel it for a full refund if he was dissatisfied for any reason. In Florida a party is bound by his contract and charged with knowledge of its contents. [Allied Van Lines, Inc. v. Bratton, 351 So.2d 344, 347-48 (Fla. 1977); Rocky Creek Ret. Props., Inc. v. Estate of Fox, 19 So.3d 1105, 1108 (Fla. 2d DCA 2009)]
Finally, Arencibia availed himself of the insurance by making a claim under the Policy, effectively conceding that a contract existed between the parties. The fact that Arencibia does not like the terms of the Policy does not serve to make the contract unenforceable.
The district court’s dismissal of Arencibia’s unjust enrichment claim was affirmed.
RICO
Section 1962(c) of the RICO statute requires that a plaintiff prove that a defendant participated in an illegal enterprise “through a pattern of racketeering activity.” 18 U.S.C. § 1962(c).
A scheme to defraud requires proof of a material misrepresentation, or the omission or concealment of a material fact calculated to deceive another out of money or property. “Material” misrepresentations or omissions are ones having a natural tendency to influence, or capable of influencing, the decision maker to whom it is addressed. The misrepresentation or omission must be one on which a person of ordinary prudence would rely.
Arencibia failed to plausibly allege a material misrepresentation, which is fatal to his RICO claim. Moreover, Arencibia failed to plausibly allege any injury caused by the alleged mail and wire fraud.
Therefore, the district court correctly held that Arencibia could not demonstrate any injury under RICO because he received exactly what he bargained and paid for – insurance coverage for his round-trip flight, subject to certain conditions and restrictions. In other words, Arencibia received the benefit of his bargain and has not suffered any injury or loss.
Accordingly, his RICO claim was correctly dismissed.
ZALMA OPINION
It takes a great deal of gall to allege that an insurance policy, not read, provided a coverage that the plaintiff wanted, or assumed he purchased, when the words of the policy are clearly limited to named perils. It was ridiculous to charge insurers with racketeering for failing to pay a claim for which no insurance existed. Arencibia and his lawyers should have read the policy and avoided this litigation. The insurers should consider a malicious prosecution action against Arencibia and his lawyers for accusing them, without evidence, of a RICO violation and forcing them into extensive litigation and an appeal to the Eleventh Circuit and the court should have sanctioned the frivolous lawsuit and appeals.
(c) 2022 Barry Zalma & ClaimSchool, Inc.
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business. He is available at http://www.zalma.com and [email protected].
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Notice of Claim Later than 60 Days After Expiration is Too Late
Post 5089
Injury at Massage Causes Suit Against Therapist
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Hiscox Insurance Company (“Hiscox”) moved the USDC to Dismiss a suit for failure to state a claim because the insured reported its claim more than 60 days after expiration of the policy.
In Mluxe Williamsburg, LLC v. Hiscox Insurance Company, Inc., et al., No. 4:25-cv-00002, United States District Court, E.D. Missouri, Eastern Division (May 22, 2025) the trial court’s judgment was affirmed.
FACTUAL BACKGROUND
Plaintiff, the operator of a massage spa franchise, entered into a commercial insurance agreement with Hiscox that provided liability insurance coverage from July 25, 2019, to July 25, 2020. On or about June 03, 2019, a customer alleged that one of Plaintiff’s employees engaged in tortious ...
ZIFL – Volume 29, Issue 11
The Source for the Insurance Fraud Professional
Posted on June 2, 2025 by Barry Zalma
Post 5087
See the full video at and at
Read the full article and the full issue of ZIFL June 1, 2025 at https://zalma.com/blog/wp-content/uploads/2025/05/ZIFL-06-01-2025.pdf
Zalma’s Insurance Fraud Letter – June 1, 2025
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ZIFL – Volume 29, Issue 11
The Source for the Insurance Fraud Professional
Read the full article and the full issue of ZIFL June 1, 2025 at https://lnkd.in/gTWZUnnF
Zalma’s Insurance Fraud Letter (ZIFL) continues its 29th year of publication dedicated to those involved in reducing the effect of insurance fraud. ZIFL is published 24 times a year by ClaimSchool and is written by Barry Zalma. It is provided FREE to anyone who visits the site at ...
No Coverage if Home Vacant for More Than 60 Days
Failure to Respond To Counterclaim is an Admission of All Allegations
Post 5085
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In Nationwide Mutual Insurance Company v. Rebecca Massey, Civil Action No. 2:25-cv-00124, United States District Court, S.D. West Virginia, Charleston Division (May 22, 2025) Defendant Nationwide Mutual Insurance Company's (“Nationwide”) motion for Default Judgment against Plaintiff Rebecca Massey (“Plaintiff”) for failure to respond to a counterclaim and because the claim was excluded by the policy.
BACKGROUND
On February 26, 2022, Plaintiff's home was destroyed by a fire. At the time of this accident, Plaintiff had a home insurance policy with Nationwide. Plaintiff reported the fire loss to Nationwide, which refused to pay for the damages under the policy because the home had been vacant for more than 60 days.
Plaintiff filed suit ...
ZIFL Volume 29, Issue 10
The Source for the Insurance Fraud Professional
See the full video at https://lnkd.in/gK_P4-BK and at https://lnkd.in/g2Q7BHBu, and at https://zalma.com/blog and at https://lnkd.in/gjyMWHff.
Zalma’s Insurance Fraud Letter (ZIFL) continues its 29th year of publication dedicated to those involved in reducing the effect of insurance fraud. ZIFL is published 24 times a year by ClaimSchool and is written by Barry Zalma. It is provided FREE to anyone who visits the site at http://zalma.com/zalmas-insurance-fraud-letter-2/ You can read the full issue of the May 15, 2025 issue at http://zalma.com/blog/wp-content/uploads/2025/05/ZIFL-05-15-2025.pdf
This issue contains the following articles about insurance fraud:
Health Care Fraud Trial Results in Murder for Hire of Witness
To Avoid Conviction for Insurance Fraud Defendants Murder Witness
In United States of America v. Louis Age, Jr.; Stanton Guillory; Louis Age, III; Ronald Wilson, Jr., No. 22-30656, United States Court of Appeals, Fifth Circuit (April 25, 2025) the Fifth Circuit dealt with the ...
Professional Health Care Services Exclusion Effective
Post 5073
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This opinion is the recommendation of a Magistrate Judge to the District Court Judge and involves Travelers Casualty Insurance Company and its duty to defend the New Mexico Bone and Joint Institute (NMBJI) and its physicians in a medical negligence lawsuit brought by Tervon Dorsey.
In Travelers Casualty Insurance Company Of America v. New Mexico Bone And Joint Institute, P.C.; American Foundation Of Lower Extremity Surgery And Research, Inc., a New Mexico Corporation; Riley Rampton, DPM; Loren K. Spencer, DPM; Tervon Dorsey, individually; Kimberly Dorsey, individually; and Kate Ferlic as Guardian Ad Litem for K.D. and J.D., minors, No. 2:24-cv-0027 MV/DLM, United States District Court, D. New Mexico (May 8, 2025) the Magistrate Judge Recommended:
Insurance Coverage Dispute:
Travelers issued a Commercial General Liability ...
A Heads I Win, Tails You Lose Story
Post 5062
Posted on April 30, 2025 by Barry Zalma
"This is a Fictionalized True Crime Story of Insurance Fraud that explains why Insurance Fraud is a “Heads I Win, Tails You Lose” situation for Insurers. The story is designed to help everyone to Understand How Insurance Fraud in America is Costing Everyone who Buys Insurance Thousands of Dollars Every year and Why Insurance Fraud is Safer and More Profitable for the Perpetrators than any Other Crime."
Immigrant Criminals Attempt to Profit From Insurance Fraud
People who commit insurance fraud as a profession do so because it is easy. It requires no capital investment. The risk is low and the profits are high. The ease with which large amounts of money can be made from insurance fraud removes whatever moral hesitation might stop the perpetrator from committing the crime.
The temptation to do everything outside the law was the downfall of the brothers Karamazov. The brothers had escaped prison in the old Soviet Union by immigrating to the United...