In re Generali Covid-19 Travel Ins. Litig.

• Decision Date: 21 December 2021
• Docket Number: 20-md-2968 (JGK)
• Citation: 577 F.Supp.3d 284
• Parties: IN RE GENERALI COVID-19 TRAVEL INSURANCE LITIGATION.
• Court: U.S. District Court — Southern District of New York

577 F.Supp.3d 284

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. The plaintiffs allege that their losses were covered by insurance policies (the "Policies") issued by Generali but Generali failed to pay the amounts due under the Policies.

Generali moved to compel arbitration as to plaintiffs Dziagwa, Flanigan, Matthew and Kari Nixon, Oglevee, Robbins, and Swafford. These plaintiffs 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. Generali also moved to dismiss the action as to Oglevee, and certain other plaintiffs who are not the subjects of Generali's motion to compel arbitration. The motion to dismiss is addressed in a concurrently-filed opinion.

For the reasons explained below, the motion to compel arbitration is granted as to Dziagwa, Flanigan, Matthew and Kari Nixon, Robbins, and Swafford. The motion to compel arbitration is also granted as to Oglevee with respect to her claims arising out of her purchase of travel insurance through Vrbo.com. The motion to compel arbitration is denied as moot as to Oglevee's other claims.

I.

A.

In deciding a motion to compel arbitration, "courts apply a standard similar to that applicable for a motion for summary judgment." Nicosia v. Amazon.com, Inc., 834 F.3d 220, 229 (2d Cir. 2016). Thus, a court should "consider all relevant, admissible evidence submitted by the parties and contained in pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits." Id. If there is no "genuine issue of material fact" as to the arbitrability of the dispute, the Court may decide the motion without a trial. Schnabel v. Trilegiant Corp., 697 F.3d 110, 113 (2d Cir. 2012).

B.

The following facts are taken from sworn declarations; there is, in any event, no dispute as to the relevant facts regarding the motion to compel arbitration.

1.

Each of the plaintiffs planned trips scheduled for 2020 for which they purchased travel insurance from Generali. The insurance coverage provided was specified in the Policies, and did not differ among the plaintiffs in most key respects. The Policies included a section entitled "Legal Actions" relating to the time period for bringing certain claims. Each Policy also included a section providing that the Policy could "be changed at any time by written agreement between" the parties, but noting that only certain executives could "change or waive" its provisions, which change had to be "endorsed on the policy."

2.

The plaintiffs who are the subjects of this motion to compel arbitration purchased the trips they insured through an online travel agency called Vrbo, also known as Vrbo.com or HomeAway.com, except Oglevee, who purchased only the accommodations portion of her trip on Vrbo.com. She purchased the airline portion of her trip on FlightHub. In the process of completing the online purchases through Vrbo, the plaintiffs clicked a button labeled "Agree & continue" or "Continue." A notice informed the plaintiffs that clicking this button indicated their assent to certain linked terms and conditions (the "Vrbo Terms"). The Vrbo Terms included a section entitled "Disputes; Arbitration," which read as follows:

19. Disputes; Arbitration.

HomeAway's right to amend these Terms, in whole or in part, at any time as set forth below in Section 22 does not apply to this "Disputes; Arbitration" section. The version of this "Disputes; Arbitration" section in effect on the date you last accepted the Terms controls.

HomeAway is committed to customer satisfaction, so if you have a problem or dispute; we will try to resolve your concerns. But if we are unsuccessful, you may pursue claims as explained in this section. You agree to give us an opportunity to resolve any disputes or claims relating in any way to the Site, any dealings with our customer experience agents, any services or products provided, any representations made by us, or our Privacy Policy ("Claims ") by contacting Vrbo Customer Supporter 1-877-228-3145. If we are not able to resolve your Claims within 60 days, you may seek relief through arbitration or in small claims court, as set forth below.

Any and all Claims will be resolved by binding arbitration, rather than in court, except you may assert Claims on an individual basis in small claims court if they qualify. This includes any Claims you assert against us, our subsidiaries, users or any companies offering products or services through us (which are beneficiaries of this arbitration agreement). This also includes any Claims that arose before you accepted these Terms, regardless of whether prior versions of the Terms required arbitration.

There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including statutory damages, attorneys’ fees and costs), and must follow and enforce these Terms as a court would.

Arbitrations will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA Arbitration Consumer Rules (together, the "AAA Rules"), Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules, except as provided in this section. If your total Claims seek less than $10,000, we will reimburse you for filing fees you pay to the AAA and will pay arbitrator's fees. You may choose to have an arbitration conducted by telephone, based on written submissions, or in person in the state where you live or at another mutually agreed upon location.

By agreeing to arbitration under the AAA Rules, the parties agree, among other things, that the arbitrator, and hot arty federal, state, or local court or agency, shall have the exclusive power to rule on any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim

To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your Claims to "HomeAway Legal: Arbitration Claim Manager," at Expedia, Inc., 333 108th Ave N.E. Bellevue, WA 98004. If we request arbitration against you, we will give you notice at the email address or street address you have provided. The AAA's rules and filing instructions are available at www.adr.org or by calling 1-800-778-7879.

Any and all proceedings to resolve Claims will be conducted only on an Individual basis and not in a class, consolidated or representative action. If for any reason a Claim proceeds in court rather than in arbitration we each waive any right to a jury trial. The Federal Arbitration Act and federal arbitration law apply to these Terms Art arbitration decision may be confirmed by any court with competent jurisdiction.

Notably, section 19 provided specifically in the third paragraph: "Any and all Claims will be resolved by binding arbitration, rather than in court .... This includes any Claims you assert against ... any companies offering products or services through us (which are beneficiaries of this arbitration agreement)." This section literally applies to claims against Generali, which offered trip insurance through the Vrbo.com website, and a customer could buy the Generali insurance through the Vrbo.com website.

Section 21 of the Vrbo Terms provided that, by purchasing cancelation protection provided by Generali, customers "agree[d] to the terms and conditions under the plan," and included a link to the Generali Policies.

Upon completing their reservations on Vrbo.com, the plaintiffs saw a confirmation page offering the opportunity to purchase insurance for that reservation. Because the plaintiffs availed themselves of that opportunity, the insurance purchase was made on Vrbo's website, using the payment method provided to reserve the accommodation.

3.

During the first week of 2020, a new coronavirus ("Covid-19") was identified in China. By March, Covid-19 had spread so broadly that the World Health Organization declared it a pandemic. 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.

The plaintiffs brought this putative class action against Generali, alleging 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 compel arbitration of those claims brought by Dziagwa, Flanigan, Matthew and Kari Nixon, Oglevee, Robbins, and Swafford.

II.

The Federal Arbitration Act, 9 U.S.C. §§ 1 et seq., ("FAA") provides that agreements to arbitrate are valid and enforceable, "save upon such grounds as exist at law or in equity for the revocation of any contract." Id. § 2. Validity, revocability, and enforceability are determined by reference to state law. Arthur Andersen LLP v....