Herssein v. AGA Service Company et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
FORT LAUDERDALE DIVISION
CASE NO. 25-60256-CIV-SMITH/HUNT
REUVEN T. HERSSEIN, on behalf of
himself, the general public, and those
similarly situated,
Plaintiffs,
v.
AGA SERVICES COMPANY (d/b/a
ALLIANZ GLOBAL ASSISTANCE),
JEFFERSON INSURANCE COMPANY,
Defendants.
____________________________________/
REPORT AND RECOMMENDATION
This Cause is before this Court on Defendants’ Motion to Dismiss. 	ECF No. 33.
The Honorable Rodney Smith referred the Motion to the undersigned for appropriate
disposition. ECF No. 54; see also 28 U.S.C. § 636(b); S.D. Fla. Mag. R. 1. Upon thorough
review of the Motion, any Response or Reply thereto, the entire case file, the applicable
law, and being otherwise fully advised in the premises, it is hereby RECOMMENDED that
the Motion to Dismiss be GRANTED for the reasons outlined below.
I. 	Background
This case concerns a dispute in which Plaintiff Reuven T. Herssein (“Plaintiff”)
seeks redress for Defendants’ allegedly deceptive practices relating to their online
marketing and sale of insurance policies on the checkout pages of ticketing and travel
websites.
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Plaintiff 	in 	his Amended 	Complaint 	contends 	that 	Defendants AGA Service
Company, doing business as Allianz Global Assistance (“AGA”), and Jefferson Insurance
Company 	(“Jefferson”) 	(collectively, 	“Defendants”), 	secretly 	tack 	on 	mandatory,
undisclosed “assistance service” fees for what Plaintiff describes as worthless add-ons,
such as toll-free calls for weather updates. 	Such fees improperly inflate cost without
adequate notice to buyers, according to Plaintiff, deliberately misleading consumers by
concealing these fees in a single “insurance” price and thereby luring unsuspecting
customers into paying for services for which they would otherwise not choose to pay.
Plaintiff 	brings 	two 	claims,1 	one 	for 	common 	law 	fraud, 	deceit 	and/or
misrepresentation, and another for a breach of the duty of good faith and fair dealing, as
a putative class action. Defendants now move to dismiss both counts under Federal Rule
of Civil Procedure 12(b)(6). The Motion is fully briefed and is now ripe for review.
II. 	Legal Standard
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).
“To meet this ‘plausibility standard,’ a plaintiff must ‘plead[ ] factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.’” 	Arias v. Integon Nat'l Ins. Co., No. 18-22508-CIV-ALTONAGA/GOODMAN,
2018 WL 4407624, at *2–3 (S.D. Fla. Sept. 17, 2018) (quoting Iqbal, 556 U.S. at 678). “A
1 Plaintiff was initially accompanied by a second Plaintiff, who brought two additional
claims pursuant to New York law. 	On August 28, 2025, the second Plaintiff voluntarily
dismissed all of his claims in this litigation, which encompassed Counts III and IV. ECF
No. 50. Accordingly, this Court will only consider Counts I and II. Counts III and IV should
be dismissed as moot.
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complaint may be dismissed for failure to state a claim if it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
Reilly v. Herrera, 622 F. App’x 832, 833 (11th Cir. 2015).
“On a motion to dismiss, a court construes the complaint in the light most favorable
to the plaintiff and accepts its factual allegations as true.” Id. (citing Brooks v. Blue Cross
& Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997)). 	“Unsupported
allegations and conclusions of law, however, will not benefit from this favorable reading.”
Id. (citing Iqbal, 556 U.S. at 679).
III. 	Discussion
Defendants contend that, as a threshold matter, both counts of the Complaint are
based on the wishful, but false, premise that Defendants concealed that they were
charging insureds for “travel assistance services.” 	Defendants note that Plaintiff’s own
Complaint admits that the offer boxes on the relevant websites contained hyperlinks
confirming that the charges for Plaintiff’s travel and event protection plans include an
amount for “travel assistance services,” and that Plaintiff was on notice of such provisions.
Further, Defendants argue that the travel protection policies delivered to Plaintiff
confirm that he was charged for various travel assistance services. Likewise, according
to Defendants, both the Offer Boxes and website disclosures, as well as the terms of the
travel and event protection plans -- all of which are incorporated by reference in the
Complaint -- fatally undermine Plaintiff’s fraud and contract claims.
The undersigned declines to address Defendants’ initial argument directly, as each
issue is better addressed in the context of Plaintiff’s claims.
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a. 	Count I: Common Law Fraud, Deceit and/or Misrepresentation
As for the alleged Counts themselves, Defendants argue that Count I must be
dismissed for the independent reason that an insured is barred from suing an insurer for
fraud in connection with the sale of insurance under the Florida Unfair Insurance Trade
Practices Act (“FUITPA”), Fla. Stat. § 626.951, et seq. Count I must also be dismissed,
Defendants argue, because the conduct alleged to be fraudulent is authorized by Chapter
647 of the Florida Statutes, which expressly permits the sale of travel protection plans
that bundle travel and event insurance with travel assistance services.
Plaintiff responds that Defendants’ arguments to dismiss Count I fail for multiple
reasons. First, Plaintiff argues FUITPA does not bar common law fraud claims. Second,
Plaintiff contends that the Complaint’s allegations of concealment are not contradicted by
the offer boxes, hyperlinks, or policy documents. Third, Plaintiff argues that Chapter 647
of the Florida Statutes does not, in fact, authorize Defendants’ deceptive practices.
Defendants reply that Plaintiff’s argument that FUITPA does not bar common law
fraud claims was expressly rejected in Buell v. Direct Gen. Ins. Agency, Inc., 267 F. App’x
907, 909 (11th Cir. 2008). 	The savings clause of FUITPA does not rescue the claim,
Defendants contend, citing Arencibia v. AGA Serv. Co., 533 F. Supp. 3d 1180, 1188 (S.D.
Fla. 2021), aff’d, No. 21-11567, 2022 WL 1499693 (11th Cir. May 12, 2022). Defendants
argue that Plaintiff cites no case law that would allow his claims to go forward.
Additionally, Defendants argue that all of Plaintiff’s claims are foreclosed by the
hyperlinked Offer Box content, which Plaintiff admits he saw. 	Defendants contend that
the segregated charges for insurance and assistance services were disclosed to Plaintiff
multiple times: first in the website hyperlinks and a second time in the cover letter
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accompanying the plan documents. Defendants note that Plaintiff also had the option to
cancel throughout the process.
Defendants additionally argue that Chapter 647 of the Florida Statutes expressly
authorizes Defendants to sell protection plans that bundle insurance coverage with
assistance services so long as the “protection plan clearly discloses to the consumer, at
or before the time of purchase, that it includes travel insurance, travel assistance services,
and cancellation fee waivers, as applicable, and provides information and an opportunity,
at or before the time of purchase, for the consumer to obtain additional information
regarding the features and pricing of each.” Fla. Stat. § 647.04. 	Plaintiff was on notice
at all times of the bundled plans, according to Defendants, and thus the sale followed
Florida law.
As 	to 	the 	first 	argument, 	that 	Plaintiff’s 	claims 	are 	barred 	under 	FUITPA,
Defendants have the better argument. Plaintiff attempts to cobble together case law that
allows an inference that such claims might be allowed, citing Kondell v. Blue Cross & Blue
Shield of Florida, Inc., 187 F. Supp. 3d 1348, 1360 (S.D. Fla. 2016), for the notion that
FUITPA’s remedies are non-exclusive, and Mankap Enterprises, Inc. v. Wells Fargo Alarm
Services, 427 So. 2d 333, 334 (Fla. 3d DCA 1983), for the notion that Florida law voids
any contractual attempt to escape liability for fraud. 	Reading such exceptions together,
Plaintiff argues, leaves room for Plaintiff’s claims to go forward. 	Additionally, Plaintiff
contends that the legislature could have expressly abolished common law fraud claims
but did not.
However, the case law does not bear out such an exception. In Buell, the Eleventh
Circuit foreclosed Plaintiff’s arguments, holding that a “[P]laintiff[ ] may not evade the
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Florida legislature's decision to withhold a statutory cause of action for violations of the
pertinent 	provisions 	of 	FUITPA by 	asserting 	common 	law 	claims 	based 	on 	such
violations.” 	Buell, 267 F. App’x at 909. 	Plaintiff argues that the legislature could have
expressly excluded his common law claim but did not. 	It did not need to, however, as
under the doctrine of “‘inclusio unius est exclusio alterius,’ the Florida legislature's express
authorization to pursue a private right of action with regard to violations of specific
provisions of the [F]UITPA implies the legislature intended to exclude the pursuit of a
private cause of action with regard to a violation of other provisions of the [F]UITPA[.]”
Buell v. Direct Gen. Ins. Agency, Inc., 488 F. Supp. 2d 1215, 1218 (M.D. Fla. 2007), aff’d,
267 F. App’x 907. Defendants are correct that Plaintiff cites no contradictory cases. For
this reason alone, Plaintiff’s Count I fails.
Regarding the Offer Box content, Defendants argue that the relevant websites’
Offer Boxes clearly disclose that the travel protection plan optionally available for
purchase bundles both “insurance & assistance services” and “24/7 assistance.” Plaintiff
argues that no reasonable consumer would interpret any mention of “services” or
“assistance” to be separate entities, and that the hyperlinked disclosures failed to
adequately explain that the quoted price included extra fees beyond the insurance
premium.
“Under Florida law, a browsewrap agreement, such as the one here, is 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.” Arencibia, 533 F. Supp. 3d at 1189–90 (citation and quotation
omitted). There is no real question that Plaintiff was aware of the terms and conditions
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contained in the Offer Boxes. The only question is whether those terms and conditions
were adequately explained. The undersigned finds that the reasonableness of Plaintiff’s
alleged understanding is likely a fact-intensive inquiry that is improper for the Court to
engage in at this stage in the litigation, and therefore the Court should, were it to find this
claim allowed under FUITPA, decline to determine whether the Offer Box content
adequately put Plaintiff on notice or 	whether the documentation contains the requisite
clarity required under Fla. Stat. § 647.04.
b. 	Count II: Breach of the Duty of Good Faith and Fair Dealing
Turning to Count II, Defendants contend this claim is fatally flawed because
Plaintiff has not alleged, as he must under Florida law, any breach of an express term of
the policy. Defendants contend that the Complaint concedes that Plaintiff received exactly
what he was offered at the price quoted: travel and event protection plans that included
insurance coverage for specific risks, along with the right to avail himself of travel
assistance services. Defendants argue that the insurance and assistance services were
spelled out in detail in the protection plans.
Defendants also contend that Plaintiff’s claim for a “public injunction” is deficient
because Plaintiff cannot plausibly allege that future injury to him is imminent. 	Further,
because Plaintiff is now aware that Defendants bundle travel assistance services with
insurance, there is no risk that Plaintiff could be deceived if he bought another protection
plan from Defendants in the future. 	Plaintiff therefore lacks standing to assert the
injunction claim, according to Defendants.
Plaintiff responds that Defendants’ challenges to Count II are meritless. 	Plaintiff
argues that his claim relates to an express contractual term, in that the contract promises
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coverage for a price, implying transparency, but that Defendants’ hidden fees belie this
transparency, breaching good faith in execution. 	Plaintiff contends that Defendants
offered insurance for a “single price,” an express term implying a lawful premium without
hidden fees. 	Defendants’ inclusion of an undisclosed, mandatory assistance fee
frustrated this term, according to Plaintiff, charging him more than agreed upon without
consent or adequate disclosure. 	This deliberate act undermined Plaintiff’s reasonable
expectations, Plaintiff contends. 	Plaintiff also alleges bad faith underlies the intentional
concealment of fees and argues that receipt of services does not negate injury from
overpayment due to deceit.
Plaintiff also argues he does have standing for injunctive relief, in that he alleges:
(1) injury-in-fact from paying undisclosed fees; (2) causation by Defendants’ practices;
and (3) redressability via injunction. Plaintiff notes that for prospective relief he must also
show a “real and immediate threat” of future injury. 	City of Los Angeles v. Lyons, 461
U.S. 95, 105 (1983). Plaintiff alleges he will purchase travel insurance again, but absent
injunction will be subject to the same deceptive practices because Defendants’ offerings
dominate the market.
Defendants reply that because Plaintiff does not adequately allege an express
contract term that was supposedly breached, there is no breach of duty of good faith and
fair dealing. 	Defendants note that there are no allegations in the Complaint that
Defendants did not fully disclose the total price he was charged. 	Further, Defendants
contend that prior decisions of courts in this District have rejected claims that a defendant
violated the price term of their contracts by charging supposed “undisclosed fees” for
assistance services.
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Defendants cite Whiteman v. AGA Serv. Co. for the idea that Defendants fully
honored their contractual obligations when they provided the protection plans at a set
price that Plaintiff agreed to pay. No. 23-61826-CIV-SINGHAL, 2024 WL 3688868, at *3
(S.D. Fla. Aug. 1, 2024), aff’d, No. 24-12524, 2025 WL 869409 (11th Cir. Mar. 20, 2025).
The undersigned finds the Whiteman decision particularly applicable here. In Whiteman,
the plaintiff alleged that the defendant breached the payment provision in its contract by
declaring that the price charged to customers is comprised solely of the “cost of insurance
and assistance,” while not disclosing that the fee also covered other costs, namely a
substantial payment to a co-defendant. The court found that the “Cost Provision contract
imposes no duty upon [defendant] to not pay any portion of the fee collected to [a co-
defendant].” Id. “Nor does it require [defendant] to disclose up front that it will be remitting
a portion of the fee it is collecting to [the co-defendant]. It simply requires [defendant] to
provide the two services that it undisputedly did.” Id.
On appeal, the Eleventh Circuit affirmed the district court’s decision, finding that
defendant did not breach the protection plan contract with plaintiff because the contract
stated the total price of the plan and plaintiff was charged only that amount. “The fact that
[defendant] gave a portion of its revenue to [co-defendant] does not mean there was a
breach.” Whiteman, 2025 WL 869409 at *2. “Nothing in the contract said that [defendant]
would keep 100% of the money it made selling travel assistance products.” Id. Because
the contract expressly stated the price, and Plaintiff was only charged and paid that price,
there was no breach. Id.
It is difficult to see any real distinction between the Whiteman plaintiff’s claim and
the claim currently at issue. Plaintiff does not complain that he was charged more than
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expected. Instead, he complains that the amount paid contained fees for services about
which he was not adequately informed. However, there is no allegation that Plaintiff did
not have access to the services for which he was charged, and, per the Whiteman
decisions, so long as the price paid is the price quoted, how the money is divvied up is of
no consequence. Accordingly, per Whiteman, Plaintiff has stated no claim for breach of
contract, and his second claim should be dismissed.
As for the standing issue, Defendants contend that Plaintiff cannot get around the
Eleventh Circuit’s ruling in Williams v. Reckitt Benckiser LLC, 65 F.4th 1243 (11th Cir.
2023). In Williams, the Court rejected “injunctive standing where plaintiffs merely ‘would
like’ to buy again, lacking imminent intent.” 	Id. at 1256. 	The undersigned agrees that
Plaintiff has made no real claim of imminent intent to purchase. Therefore, even were the
Court to allow Plaintiff’s breach of contract claim to go forward, Plaintiff’s request for
injunctive relief should be denied.
c. 	Attorney’s fees
Finally, Defendants object to Plaintiff’s demand for attorney’s fees, noting that he
failed to allege any basis to recover fees. Plaintiff responds that the demand at this stage
is a placeholder, potentially supported by equitable relief or future statutory claims. 	As
this Court has recommended that all of Plaintiff’s claims should be dismissed, Plaintiff’s
request for attorney’s fees should be denied.
IV. 	Recommendation
Based on the foregoing, the undersigned RECOMMENDS that:
Defendants’ Motion to Dismiss, ECF No. 33, be GRANTED to the extent that
Plaintiff’s Amended Complaint be DISMISSED.
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Within 	seven 	(7) days 	after 	being 	served with 	a copy 	of 	this 	Report and
Recommendation, any party may serve and file written objections to any of the above
findings and recommendations as provided by the Local Rules for this district. 28 U.S.C.
§ 636(b)(1); S.D. Fla. Mag. R. 4(b). The parties are hereby notified that a failure to timely
object waives the right to challenge on appeal the District Court's order based on
unobjected-to 	factual 	and 	legal 	conclusions 	contained 	in 	this 	Report 	and
Recommendation. 11th Cir. R. 3–1 (2018); see Thomas v. Arn, 474 U.S. 140 (1985).
DONE AND SUBMITTED in Chambers, at Fort Lauderdale, Florida, this 25th day
of February 2026.
____________________________________
PATRICK M. HUNT
UNITED STATES MAGISTRATE JUDGE
Copies Furnished to:
Honorable Rodney Smith
All Counsel of Record
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