A Denver-based ski and resort conglomerate was unsuccessful in dismissing a class action lawsuit, in which season pass holders are seeking restitution because the COVID-19 pandemic prevented them from enjoying the entirety of last year’s ski season.
On Friday, U.S. District Court Judge Raymond P. Moore agreed that plaintiffs in Colorado, California, Illinois, Utah and Wisconsin had a credible breach-of-contract claim against Alterra Mountain Company. The judge based his decision on the terms of the pass, and briefly acknowledged the Alterra CEO’s admission that “people didn’t get what they paid for.”
“Though Defendants argue otherwise, the Court finds that, read as a whole, the promise is for unlimited access…during the 2019/20 ski season,” Moore wrote in his June 25 order. “And, here, Plaintiffs plausibly alleged that Defendants closed the resort during the 2019/20 ski season — when the resorts’ ski conditions were such that skiing was feasible, e.g., spring skiing.”
Alterra, which operates 15 ski and resort facilities, offers an “Ikon Pass” that promised unlimited access at covered resorts during the 2019-2020 ski season. However, due to the spread of COVID-19, Alterra and other resorts shut down on approximately March 15, 2020, just before the governor announced Colorado’s stay-at-home order.
Plaintiffs, who had paid for an Ikon Pass, requested a refund. When Alterra refused, they sued for breach of contract, unjust enrichment and other claims. Alterra countered that it never promised the purchasers a “complete ski season,” and public health orders were the reason the plaintiffs could not use their passes.
"Alterra’s promise of 'unlimited access' entitled pass holders to ski as many days as they wished, on the same terms as single-day ticket holders — that is, on days and during hours that resorts were open to the public," the company's attorneys wrote in a motion to dismiss the lawsuit. "Plaintiffs’ real gripe is that their subjective expectations about the length of what they term a 'complete ski season' were frustrated when the ski resorts closed in mid-March."
They added that just as pass holders are not required to pay extra when the ski season extends until June, they are not entitled to a refund when the season ends early. The plaintiffs countered that Alterra failed to provide them access to resorts for a "substantial portion" of the season.
According to the information in the class action complaint, an Ikon Pass cost $999 for adults, with discounts available for other groups. The named plaintiffs in the lawsuit reported paying between $539 and and in excess of $2,000 for one or multiple passes. The lawsuit seeks restitution and additional damages, which the plaintiffs estimated could exceed $5 million for the affected class.
Moore acknowledged a decision that the U.S. Court of Appeals for the 10th Circuit issued in 2018, finding United Airlines had not committed breach of contract by refusing to refund customers who canceled their non-refundable tickets. Similarly, he noted the terms of the Ikon Pass only allowed for limited refunds "If you cancel this purchase agreement" before September 2019.
But the pass holders did not cancel their purchase, the judge determined. The policy did not cover a scenario where Alterra effectively revoked the pass.
"Indeed, read as a whole, it supports Plaintiffs’ position that the 'Cancellation Policy' applies such that if they cancelled or revoked the contract, they would not be entitled to a refund," he concluded.
The judge also allowed certain claims to proceed under consumer protection laws of California, Illinois and Wisconsin.
Attorneys for the class of plaintiffs did not respond to a request for comment, and an Alterra spokesperson would not weigh in on an ongoing lawsuit.
Alterra is not alone in facing legal class action from people seeking refunds over the 2019-2020 ski season. Vail Corporation is currently fending off similar claims in a lawsuit pending before U.S. District Court Judge R. Brooke Jackson. Although Jackson has not yet ruled on a motion to dismiss in that case, attorneys for the plaintiffs informed him on Monday of Moore's decision in the Alterra lawsuit.
The case is Goodrich et al. v. Alterra Mountain Company et al.