Law360 (October 16, 2020, 8:13 PM EDT) -- A proposed consumer class has asked a Connecticut federal court not to toss their suit alleging a travel company wrongly withheld insurance premiums that tourists paid for trips canceled due to COVID-19, saying that the company got its refund argument backward.
Lead plaintiff John Beermann on Thursday opposed a bid by Tauck Inc., doing business as Tauck World Discovery, to dismiss his putative class action because he isn't a Connecticut resident and wasn't injured in that state, claiming that the travel company is using this argument in an attempt to avoid honoring the plain terms of its protection plan.
Beermann told the court he has properly stated a valid claim under the Connecticut Unfair Trade Practices Act but asked anyway that the court give him an opportunity to add a Connecticut resident as a named plaintiff.
The larger issue, he asserted, is that Tauck must return the premium money unless it can establish that the company has a right to offer a "highly conditional" credit to make up for the trips it canceled due to the coronavirus. Notably, Beermann said, Tauck doesn't contend that it has a contractual right, "or any other right," to offer a credit instead of a cash refund.
"Ignoring plaintiff's well-pled allegations, Tauck spins its failure to refund the cost of protection plan premiums that it never earned, arguing that plaintiff must establish his right to a refund in order to get his money back. That argument is backwards," Beermann said.
Tauck asked the court on Aug. 31 to strike all class action allegations under the Connecticut Unfair Trade Practices Act and dismiss the suit in its entirety, saying the class representative doesn't have the right to a refund because he failed to establish anywhere in his complaint that he is legally entitled to a repayment of the premium he paid for the travel protection program. And since Beermann is not a Connecticut resident injured in the state, his class action alleging violation of the CUTPA fails, the company said.
Beermann, a resident of Florida, sued the company on May 21 after Tauck allegedly refused to refund his $1,598 travel insurance premium after his 15-night cruise to Japan was canceled. Beermann asked the court to hold that Tauck should return his premium instead of offering a credit for a future tour, according to filings.
In its motion to dismiss, Tauck said it was forced to cancel all tours through July 31 due to the COVID-19 pandemic but provided customers full trip refunds, including Beermann's $29,000 Japanese cruise. The company said it offered Beermann a 100% credit on the travel insurance premium he paid.
The family-owned land and cruising tours company said Beermann cannot represent a nationwide class alleging violation of CUTPA because he is a Florida resident who was never injured in Connecticut. The act states clearly that only "residents of this state or injured in this state" can represent or participate in a CUTPA class action, Tauck said.
Tauck contended that since Beermann has acknowledged in his complaint that Connecticut law governs the dispute, his claims alleging Tauck violated Florida consumer protection laws also fail.
Additionally, Beerman falls short in showing that Tauck misled travelers with negligent misrepresentation because he could not allege that Tauk had a duty to disclose information, the company said. Tauck doesn't have such a duty because there were only commercial relationships between Tauck and its customers, it said.
Beermann's statutory-theft claim also fails because he did not possess any asset that Tauck allegedly stole, and he never alleged that Tauck had any intention to conduct theft, Tauck said. The court should also reject the traveler's request for declaratory relief "because it inappropriately seeks relief on events that have already occurred [and] does not state an adequate claim for relief," the company added.
Counsel for the parties did not immediately respond to a request for comment Friday.
Beermann is represented by Jonathan M. Shapiro of Aeton Law Partners LLP; Michael J. Freed, Robert J. Wozniak, Brian M. Hogan and Jonathan M. Jagher of Freed Kanner London & Millen LLC; and Andrew J. Shamis of Shamis & Gentile PA.
Tauck is represented by Jeffrey L. Ment of The Ment Law Group LLC and Alex M. Gonzalez, Israel J. Encinosa and Anthony J. Sirven of Holland & Knight LLP.
The case is Beermann v. Tauck Inc., case number 3:20-cv-00713, in the U.S. District Court for the District of Connecticut.
--Additional reporting by Daphne Zhang. Editing by Gemma Horowitz.
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