In re Generali COVID-19 Travel Ins. Litig.

• Decision Date: 21 December 2021
• Docket Number: 20-md-2968 (JGK)
• Citation: 576 F.Supp.3d 36
• Parties: IN RE GENERALI COVID-19 TRAVEL INSURANCE LITIGATION.
• Court: U.S. District Court — Southern District of New York

576 F.Supp.3d 36

IN RE GENERALI COVID-19 TRAVEL INSURANCE LITIGATION.

20-md-2968 (JGK)

United States District Court, S.D. New York.

Signed December 21, 2021

OPINION AND ORDER

JOHN G. KOELTL, District Judge:

The plaintiffs brought this putative class action against the defendants, Generali US Branch and Customized Services Administrators, Inc. (together, "Generali"), alleging breach of insurance contracts and related non-contract claims.

The plaintiffs alleged that they incurred losses because they planned and paid for travel that was canceled because of restrictions that were occasioned by Covid-19. They claim that their losses were covered by trip insurance contracts issued by Generali because their losses were "Covered Events." The plaintiffs point to two alleged Covered Events: (1) a "Quarantine" provision of the relevant policy, or (2) the provision for "unavailable accommodations due to ... natural disaster." The defendants contend that the trip cancelations were not occasioned by those Covered Events and that, in any event, the government regulations that brought about the plaintiffs' losses fell within an explicit Exclusion in the Policies for any loss under the Policy "caused by, or resulting from, ... travel restrictions imposed for a certain area by governmental authority." Generali now moves to dismiss the action as to plaintiffs Clonts, Garner, Johner, Sharma, Oglevee, Morris, and Shrader.

Generali also moved to compel arbitration as to Oglevee, as well as certain other plaintiffs who are not the subjects of Generali's motion to dismiss. The plaintiffs as to whom Generali moved to compel arbitration purchased their trips and the corresponding insurance through Vrbo.com, except Oglevee, who purchased only her accommodations and the corresponding insurance on Vrbo.com. Oglevee purchased her flights and the corresponding insurance on FlightHub. The basis of Generali's motion to compel arbitration is an arbitration clause in the terms of service of Vrbo.com, which provided that Generali was a beneficiary of the clause. The motion to compel arbitration is addressed in a concurrently-filed opinion, but for the purposes of this motion it is relevant that the motion to compel arbitration is granted as to Oglevee with respect to her claims arising from her purchase of travel insurance through Vrbo.com, and denied as to Oglevee's other claims.

For the reasons explained below, the motion to dismiss is granted as to Clonts, Garner, Johner, Sharma, Morris, and Shrader. The motion to dismiss is denied as moot as to certain claims by Oglevee that are subject to arbitration, and granted as to Oglevee with respect to her other claims.

I.

A.

In deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the allegations in the complaint are accepted as true and all reasonable inferences must be drawn in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007).¹ The Court may also consider documents that are integral to the complaint or incorporated by reference, and those facts or documents of which the court can take judicial notice. Casey v. Odwalla, Inc., 338 F. Supp. 3d 284, 293 (S.D.N.Y. 2018). This includes contracts, Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 71-72 (2d Cir. 1995), and executive orders, Michael Cetta, Inc. v. Admiral Indem. Co., 506 F. Supp. 3d 168, 173 (S.D.N.Y. 2020), which the parties also agree are subject to judicial notice.

B.

The following facts are taken from the Consolidated Class Action Complaint (the "Complaint"), Generali's insurance policies (the "Policies"), which are referenced in and integral to the Complaint, and various executive orders referenced in the Complaint.

1.

Each of the plaintiffs planned trips scheduled for 2020 for which they purchased travel insurance from General!. The insurance coverage provided was specified in the Policies, and did not differ among the plaintiffs in most key respects.

The Policies provided that Generali would compensate the insureds for certain losses that occurred if the insured was prevented from taking a trip due to an unforeseeable "Covered Event[ ] that occur[ed] before departure." Compl. ¶ 44. In all policies, the term "Covered Event" included "Being ... Quarantined." The Policies defined the term Quarantine as "the enforced isolation of [the insured or their] Traveling Companion, for the purpose of preventing the spread of illness." Id. at ¶ 46. In some policies, the term "Covered Event" also included the insured's "Accommodations at [their] destination [being] made inaccessible due to fire, flood, volcano, earthquake, hurricane or other natural disaster." Id. ¶¶ 46-50.

After listing the Covered Events, the Policies noted that this coverage was "subject to the General Exclusions." The section entitled "General Exclusions" provided that Generali would "not pay for any loss under th[e] Policy, caused by, or resulting from" certain listed events. These General Exclusions included "travel restrictions imposed for a certain area by governmental authority." Id. ¶ 51; Zurlage Decl. Ex. A, ECF No. 29-1, at 10-11.

The Policies also included a provision that after a 10-day policy-examination period, the insured's payment was non-refundable, id. at 6, and a provision that the insurance coverage was "single pay, single term." Id. at 13. The Policies contained various coverage limits.

2.

During the first week of 2020, a new coronavirus ("Covid-19") was identified in China.² By March, Covid-19 had spread so broadly that the World Health Organization declared it a pandemic. On March 2, Generali posted a notice on its website that it considered Covid-19 to have been foreseeable as of January 29.

Over the course of 2020, countries, states, and localities issued orders to attempt to limit the spread of the disease. The plaintiffs were all slated to take the trips for which they had purchased insurance during 2020. All of these trips were canceled over the course of the year. The plaintiffs filed claims under the Policies, seeking compensation under the Policies. Generali denied the claims in an email, explaining that the Policies only provided benefits for specific, listed events, including Quarantines as the Policies defined the term, and that stay-at-home orders were not considered Quarantines under the Policies. The email also explained that the Policies did not cover losses resulting from travel restrictions by a governmental authority or by an event that could have reasonably been foreseen.

3.

The plaintiffs brought this putative class action against Generali. They sought to represent four distinct classes³ :

• Clonts, Garner, Johner, Sharma, and Oglevee sought to represent the Quarantine Class, a class of "[a]ll persons who purchased or obtained Defendants' travel protection policies without a pandemic exclusion and were prevented from taking their trips because of a quarantine order, stay-at-home order, or similar restriction related to the COVID-19 pandemic";

• Clonts, Garner, and Johner sought to represent the Natural Disaster Class, a class of "[a]ll persons who purchased or obtained Defendants' travel protection policies without a pandemic exclusion that list inaccessible accommodation as a covered event, and were prevented from taking their trips due to their accommodation being inaccessible as a result of the COVID-19 natural disaster";

• Clonts, Garner, Johner, and Sharma sought to represent the Early 2020 Purchaser Class, a class of "all persons who purchased or obtained Defendants' travel protection policies between January 29 and March 11, 2020, without a pandemic exclusion, and were unable to take their trip for reasons related to the COVID-19 pandemic"; and

• Morris and Shrader sought to represent the Unearned Premiums Class, a class of "[a]ll persons who purchased or obtained Defendants' travel protection policies and whose trips were cancelled and fully refunded prior to their departure date, but who have not received premium refunds from Defendants for post-departure risks."

In each case, the plaintiffs sought to represent nationwide classes or, should the classes not be certified nationwide, statewide classes. Each putative class brought distinct claims, including claims for breach of contract, unjust enrichment, conversion, bad faith, and breach of the duty of good faith and fair dealing. The plaintiffs sought relief including a return of all or part of the insurance premiums they paid, compensation for the losses they incurred, and declaratory relief.

Generali now moves to dismiss the action as to Clonts, Garner, Johner, Sharma, Oglevee, Morris, and Shrader. The claims brought by each putative class and named plaintiff are reflected in the following chart, which identifies the plaintiffs, their states of residence, and their claims. The chart only identifies the claims subject to the motion to dismiss and excludes the claims subject to the motion to arbitrate.

Quarantine Class	Natural Disaster Class	Early 2020 Purchaser Class	Unearned Premium Class
Count:	I	II	III	IV	V	VI	VII	VIII	IX
Name	Applicable Law	Breach of Contract	Breach of Contract	Unjust Enrichment	Conversion	Bad Faith	Breach of the Duty of Good Faith and Fair Dealing	Unjust Enrichment	Conversion	Breach of the Duty of Good Faith and Fair Dealing
Clonts	Georgia	Yes	Yes	Yes	Yes	Yes	Yes
Garner	Oregon	Yes	Yes	Yes	Yes	Yes	Yes
Johner	Missouri	Yes	Yes	Yes	Yes	Yes	Yes
Sharma	Utah	Yes	Yes	Yes	Yes	Yes
Oglevee	Pennsylvania	Yes
Morris	Florida	Yes	Yes	Yes
Shrader	Pennsylvania	Yes	Yes	Yes

II.

The plaintiffs raise both contract and non-contract claims. The plaintiffs do not dispute the defendants' statement that each of their claims are governed by the laws of their home states. See ECF No. 28 at 11. Accordingly, the Court will apply to each plaintiff's claims the law of that plaintiff's home state. See Monterey Bay Mil. Hous., LLC v. Ambac Assurance Corp., 531 F. Supp. 3d 673, 705 (S.D.N.Y. 2021).

Because the motion to compel arbitration is granted in part as to plaintiff Oglevee, the ...