dissenting. I respectfully dissent from today’s decision in which this court approves a defective class certification and allows it to proceed as a class action. Our court has previously departed from the standard applied in federal rules, as adopted in most other jurisdictions, by our decision in Mega Life & Health Ins. Co. v. Jacola, 330 Ark. 261, 954 S.W.2d 898 (1997), where we held that a rigorous analysis is not required for certification of a class in Arkansas. Id.
Today we expand that liberal interpretation of class actions in Arkansas to allow this appellate court to make surgical repairs to an order establishing an imprecise, amorphous, and excessively broad class composed of members whose Medicaid status may change from month to month, thereby making it unfeasible to identify members of the proposed class at any given time.
On May 1, 2001, the trial court entered its order, certifying the class consisting of all persons in the State of Arkansas who:
(1) at any time purchased a Medicare Supplement Policy from Blue Cross and Blue Shield of Arkansas while enrolled as a Qualified Medicare Beneficiary, or
(2) paid premiums on such policy while enrolled as a Qualified Medicare Beneficiary at any time between August 1, 1994 and the date of Notice to the Class (the “Class Period”).
(Emphasis added.)
In its order, the trial court found that the number of members of the class is disputed, but ranges between seventy-seven to 4,174 persons. The trial court notes that Wayne Olive states in his affidavit that he has identified “some 4,174 Medicaid recipients for whom Medicaid received a report of Medipak coverage through Blue Cross and Blue Shield of Arkansas ¡BCBSA].”
The trial court then finds “that even though the size of the class is uncertain . . . the minimum number is deemed sufficient to meet the numerosity prerequisite.” The trial court makes no finding that the definition of the class meets the standard established in Ferguson v. Kroger Co., 343 Ark. 627, 37 S.W.3d 590 (2001), which holds that in order to have a class action, there must be a defined class that will make it administratively feasible for a court to determine membership in that class. Id.
In the present case, there is an argument that it is actionable for an insurer to sell any supplemental insurance to a person who is already eligible for Medicaid benefits. This is covered in subsection one of the class as certified by the order. However, the plain language of subsection two of the certification would also include all those persons who “paid premiums on such [supplemental] policy while enrolled as a Qualified Medicare Beneficiary at any time between August 1, 1994 and the date of Notice to the Class.” The plain language of the certification would include those persons who continued to pay premiums on a preexisting Medi-Pak policy after becoming eligible for Medicaid. This is contrary to the findings of the trial court that such persons who did not request a suspension from Medi-Pak coverage because of Medicaid eligibility should be dismissed from the action.
The trial court wrote a letter on November 13, 2000, finding that there was no showing that BCBSA failed to comply with any suspension requests, and dismissing that aspect of the complaint. The trial court’s order ofjanuary 29, 2001, formally dismissed this aspect of the complaint on the basis that the applicable law does not prohibit an insurer from continuing to collect premiums for continuing Medi-Pak coverage, unless the owner of the insurance makes a suspension request within ninety days on the basis that he is eligible for Medicaid. Hence, the language of subsection two necessarily includes persons in the class who have suffered no harm because they' either failed to notify BCBSA of their Medicaid eligibility or chose to continue paying premiums on their Medi-Pak policy, despite their status as being temporarily in or out of eligibility for Medicaid.
It is not disputed that it would not be feasible to identify such class members by means of cross-referencing computer data because there is no showing that such data can establish whether the individual claimant has intentionally kept Medi-Pak coverage while his or her status changes from coverage to noncoverage by Medicaid. This individual variance in status is based upon each person’s circumstances, and depends upon an individual decision that cannot be determined by computer data. Such an amorphous and imprecise class is similar to the proposed class in Ferguson, supra, and should not be certified for reasons stated in that opinion. The computer data simply does not contain information whether the putative class number desired a continuation of Medi-Pak coverage, notwithstanding variations in Medicaid coverage month to month.
In my view, certifying a class of an indeterminate size, ranging from seventy-seven to 4,174 members does not identify the members of the class, and there is no showing how an identification of class members can be achieved. The computer cross-matches simply do not disclose whether a particular person who was already covered by Medi-Pak made a personal decision to continue that coverage for an in-and-out period in which that person’s Medicaid eligibility changed back and forth.
The majority seeks to remedy this flaw in the trial court’s class certification by pointing out that several months earlier, in the January 29th order, the trial court recognized that such in-and-out members should be excluded from the class. Unfortunately, this important exclusion of non-eligible persons is not reflected in the trial court’s certification of the class from which this appeal is brought. The trial court’s certification of the class simply does not exclude such persons. While the trial court recognized that as many as 4,000 persons must have their status as class members determined on the basis of individual choices, the order provides no guidance for discovering the reasons for such individual decisions.
The majority approves this flawed class after engrafting upon the final order the provision omitted by the trial court, to the effect that such noneligible persons should be excluded. To accomplish this modification, it was necessary for a modification of the class description to be included in the class to be certified. The trial court did not make this modification, and I strongly submit that we should not do so. It is inappropriate for this court to repair a flawed class certification.
In my view, we should decertify this class just as we decertified the class in Ferguson, supra. If the plaintiffs thereafter propose a class that meets the requirements of Rule 23, they may seek certification of that appropriate class. It is well established that we will not reverse a trial court’s ruling on class certification absent an abuse of discretion. See, e.g., Fraley v. Williams Ford Tractor & Equipment, 339 Ark. 322, 5 S.W.3d 423 (1999). It should be equally clear that we should reverse a class certification where an abuse of discretion results in a clearly erroneous certification.
We enter an unprecedented legal thicket when we modify or amend a class definition during our appellate review on the basis that the trial court intended to exclude some members of the class, but simply failed to do so. Our exercise of this newly assumed authority to modify the trial court’s order transforms this court from its appellate function to that of a supreme trial court, and I am not willing to seek or exercise that new authority and responsibility. The class as certified by the trial court is flawed, and we should reverse and remand.
I respectfully dissent.