USCA11 Case: 21-11567 Date Filed: 05/12/2022 Page: 1 of 13
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11567
____________________
IBALDO ARENCIBIA,
Plaintiff-Appellant,
versus
AGA SERVICE COMPANY
d.b.a. Allianz Global Assistance,
JEFFERSON INSURANCE COMPANY,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-cv-24694-BB
____________________
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2 Opinion of the Court 21-11567
Before WILSON, ROSENBAUM, Circuit Judges, and COVINGTON,∗
District Judge.
COVINGTON, District Judge:
This appeal arises from Ibaldo Arencibia’s online purchase
of 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 filed the instant lawsuit. 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. Because the district court correctly dismissed
Arencibia’s claims without leave to amend, we affirm.
I
According to the amended complaint, 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”). 1 Arencibia alleges that the
∗Honorable Virginia M. Covington, United States District Judge for the
Middle District of Florida, sitting by designation.
1 Defendant Jefferson Insurance Company is the insurance underwriter.
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offer box that appeared on American Airlines’ website was
substantially similar to the following:
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 on September 9, 2019, he received a letter
from Allianz formally declining to provide coverage under the
Policy. The September 9 letter stated in pertinent part that Allianz
was “unable to provide benefits under the coverage [Arencibia]
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4 Opinion of the Court 21-11567
purchased because . . . [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 we describe. Unfortunately, trip cancellation
due to being required to work is not included among those
reasons.”
Arencibia alleges that the denial letter was in “stark contrast”
with the representations made by Allianz prior to his purchase of
the Policy. According to Arencibia, the Allianz offer box led him to
believe that he was purchasing “broad, no fault insurance
protection and coverage” such that, if he accepted the insurance
option, he would not be responsible for any cancellation fees and
would be reimbursed the price of his flight, no matter the reason
for cancellation.
Based on this theory, Arencibia brought suit in the Southern
District of Florida against American Airlines, 2 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 the original
complaint. On August 5, 2020, the district court ordered that the
entire case be transferred to the United States District Court for the
Northern District of Texas, and that the pending motions to
2 American Airlines is not a party to this appeal.
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21-11567 Opinion of the Court 5
dismiss would also be transferred so that the court in Texas might
rule upon them.
Upon transfer, the case was assigned to the Honorable Reed
O’Connor, and Arencibia filed an amended complaint.3 Pursuant
to the court’s order, the parties re-briefed their motions to dismiss.
Judge O’Connor granted American Airlines’ motion to dismiss and
ordered that the remaining claims against Allianz and Jefferson be
transferred back to the Southern District of Florida. After a third
round of briefing, the district court in Florida dismissed the
amended complaint in its entirety without leave to amend. This
appeal followed.
II
We review the grant of a motion to dismiss under Rule
12(b)(6) de novo, accepting the allegations in the complaint as true
and construing them in the light most favorable to the plaintiff.
Jackson v. BellSouth Telecomms.,
372 F.3d 1250, 1262 (11th Cir.
2004). We review a district court’s denial of leave to amend a
complaint for an abuse of discretion, but we review de novo its
legal conclusion that amendment would be futile. Coventry First,
LLC v. McCarty,
605 F.3d 865, 869 (11th Cir. 2010). We may affirm
a district court’s decision on any ground supported by the record.
Brown v. Johnson,
387 F.3d 1344, 1351 (11th Cir. 2004).
3 In the amended complaint, Arencibia raised substantially identical claims to
those he brought in the original complaint, and any changes are not pertinent
to the issues on appeal.
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III
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. We will examine each
in turn.
A. 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.
We need not reach the FUITPA issue because even
assuming (without deciding) that a private cause of action for
unjust enrichment may exist with respect to the alleged violations
under FUITPA, we affirm because a valid contract existed between
Arencibia and Appellees.
Under Florida law, to state a claim for unjust enrichment, a
party must establish all the following: “(1) a benefit conferred upon
a defendant by the plaintiff, (2) the defendant’s appreciation of the
benefit, and (3) 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) (cleaned up).
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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). Indeed, “[i]t is well settled that the law will not imply
a contract where an express contract exists concerning the same
subject matter.” Kovtan v. Frederiksen,
449 So. 2d 1, 1 (Fla. 2d DCA
1984). That is so because “the theory of unjust enrichment is
equitable in nature and is, therefore, not available where there is
an adequate legal remedy.” Bowleg v. Bowe,
502 So. 2d 71, 72 (Fla.
3d DCA 1987).
Here, an express contract – the Policy – existed. See State
Farm Fire & Cas. Ins. Co. v. Deni Assocs. of Fla., Inc.,
678 So. 2d
397, 400 (Fla. 4th DCA 1996) (“An insurance policy is a contract
between the insured and the carrier.”). And Arencibia does not
dispute that he entered into an express contract of insurance with
Jefferson and Allianz.
Instead, Arencibia argues that he may pursue an unjust
enrichment claim because the Policy is “void and unenforceable.”
In Arencibia’s view, Appellees induce consumers to enter into the
Policy by “grossly misrepresenting” its contents. The facts,
however, demonstrate that Appellees did not misrepresent the
terms of the Policy. The Policy expressly warns consumers that
flight cancellation coverage is not unlimited. Specifically, the Policy
provides, in pertinent part:
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WHAT THIS POLICY INCLUDES AND WHOM IT
COVERS
This travel insurance policy covers only the specific
situations, events, and losses included in this policy,
and only under the conditions described. For this
reason, it is known as a “named perils” policy. Please
review this policy carefully. . . .
NOTE:
Not every loss is covered, even if it is due to something
sudden, unexpected, or out of your control. Only
those losses meeting the conditions described in this
policy may be covered.
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. The Policy does not list a conflicting work
commitment or the insured’s unilateral decision to cancel the trip
under “covered reasons.”
What’s more, Arencibia was given multiple opportunities to
view the Policy’s terms. When Arencibia first viewed the offer box
on American Airlines’ website, the offer of insurance warned
consumers that it was subject to “terms, conditions, and
exclusions,” instructed consumers to “[s]ee coverage details,” and
provided consumers with a hyperlink to view the terms of the
insurance coverage. Then, following Arencibia’s purchase, Allianz
also emailed Arencibia a copy of the Policy. Arencibia was afforded
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a 10-day grace period to cancel the Policy for any reason and
receive a full refund.
Even if Arencibia did not read the terms of the Policy before
purchasing it, we agree 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. See MetroPCS Commc’ns, Inc. v. Porter,
273 So. 3d
1025, 1028 (Fla. 3d DCA 2018) (explaining that, under Florida law,
browsewrap agreements like the one here are enforceable “when
the purchaser has actual knowledge of the terms and conditions, or
when the hyperlink to the terms and conditions is conspicuous
enough to put a reasonably prudent person on inquiry notice”).
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. See Allied Van Lines, Inc. v.
Bratton,
351 So. 2d 344, 347-48 (Fla. 1977) (explaining that a party
is bound by his contract and charged with knowledge of its
contents); Rocky Creek Ret. Props., Inc. v. Estate of Fox,
19 So. 3d
1105, 1108 (Fla. 2d DCA 2009) (holding that a party is generally
bound by a contract the party signs unless he is prevented from
reading it or induced by the other party to refrain from reading it).
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
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not like the terms of the Policy does not serve to make the contract
unenforceable.
Accordingly, the district court’s dismissal of Arencibia’s
unjust enrichment claim is affirmed.4
B. RICO
In his amended complaint, Arencibia also brought a claim
for alleged RICO violations, relying on the predicate acts of mail
fraud and wire fraud to plead a pattern of racketeering activity. The
district court held that this claim failed for multiple reasons, but we
confine ourselves to just two.
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).
“Racketeering activity” is defined to include such predicate acts as
4 While this appeal was pending, Appellees drew the Court’s attention to two
recently issued decisions: Marrache v. Bacardi U.S.A., Inc.,
17 F.4th 1084 (11th
Cir. 2021) and Pincus v. American Traffic Solutions, Inc.,
333 So. 3d 1095 (Fla.
2022). In Marrache, this Court affirmed the dismissal of an unjust enrichment
claim because the defendant made a full and accurate pre-sale disclosure of
certain information and the plaintiff thus received what they bargained for. 17
F.4th at 1101-02. And in Pincus, the Florida Supreme Court held that the
plaintiff’s unjust enrichment claim failed as a matter of law because the
defendant “gave value in exchange” to the plaintiff such that it was not
inequitable for the defendant to retain a fee. 333 So. 3d at 1097. While these
cases provide further support for the Court’s decision, we need not address
them in great detail, as Arencibia’s unjust enrichment claim fails for the
reasons described above.
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mail and wire fraud.
18 U.S.C. § 1961(1). To state a claim, then,
Arencibia needed to sufficiently allege that the defendants
“intentionally participate[d] in a scheme to defraud another of
money or property” and “use[d] the mails or wires in furtherance
of that scheme.” Am. Dental Ass’n v. Cigna Corp.,
605 F.3d 1283,
1290 (11th Cir. 2010) (citing Pelletier v. Zweifel,
921 F.2d 1465, 1498
(11th Cir. 1991)). As we have explained:
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.
United States v. Foster,
878 F.3d 1297, 1304 (11th Cir. 2018)
(internal citations and quotations omitted).
The district court correctly determined that Arencibia failed
to plausibly allege a material misrepresentation, which is fatal to
his RICO claim. As explained above, the Allianz offer box
conspicuously warned Arencibia that “terms, conditions, and
exclusions apply,” Allianz provided him with a hyperlink to view
those terms, Allianz provided him with the 36-page Policy at the
time of purchase, and Arencibia was afforded ten days to review
and cancel the Policy for any reason and receive a full refund.
Arencibia does not deny that the terms and exclusions of coverage
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were laid out in the full Policy that was sent to him, nor that he had
ten days to review the Policy and cancel it if he was unhappy with
any of the stated terms.
Thus, the offer box and Policy provided a full and accurate
disclosure of the terms, conditions, and exclusions of the insurance
coverage offered, and Arencibia has failed to plead any actionable
misrepresentation by the Appellees.
Moreover, Arencibia failed to plausibly allege any injury
caused by the alleged mail and wire fraud. See Ray v. Spirit Airlines,
Inc.,
836 F.3d 1340, 1348 (11th Cir. 2016) (“A civil plaintiff must also
show (1) the requisite injury to ‘business or property,’ and (2) that
such injury was ‘by reason of’ the substantive RICO violation.”)
(quotation marks omitted) (quoting
18 U.S.C. § 1964(c)).
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
roundtrip 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.
C. Leave to Amend
While district courts should freely give leave to amend when
justice so requires, they need not grant leave to amend when such
amendment would be futile. See Foman v. Davis,
371 U.S. 178, 182
(1962). “This court has found that denial of leave to amend is
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justified by futility when the ‘complaint as amended is still subject
to dismissal.’” Burger King Corp. v. Weaver,
169 F.3d 1310, 1320
(11th Cir. 1999) (citation omitted).
The district court concluded that Arencibia’s amended
complaint failed to state a plausible claim for relief, despite
Arencibia having the benefit of two fully briefed motions to dismiss
prior to amendment. What’s more, it held that amendment would
be futile because his own allegations “negate” any
misrepresentation on the part of Appellees. We agree. Arencibia’s
claims are fatally undermined by the offer box disclosures, and by
the terms of and circumstances surrounding the Policy. The district
court did not abuse its discretion in denying Arencibia leave to
further amend his complaint.
IV
For the reasons stated, we conclude that the district court
did not err in dismissing Arencibia’s operative complaint without
leave to amend. Therefore, we affirm the district court.
AFFIRMED.
