dissenting.
I dissent from the majority opinion because it rests so heavily on the conclusion that plaintiff asserted the “fraud on the market” theory of recovery in the trial court. In my opinion, that theory was not adequately raised in the trial court and therefore, should not be considered here in determining whether the trial court properly decertified the class. Plaintiff may be able to point to isolated sentences and footnotes to argue that it was raised, but in my opinion these references are insufficient to apprise the trial court of the nature of this new theory.
I do not disagree with the majority’s statement of the law applicable to class action certification and decertification, but I disagree with its view of the claims raised in the trial court. This disagreement leads me to view the evidence presented in the motion to decertify in a manner different from the view expressed by the majority.
The thrust of plaintiffs complaint was to assert a claim for one class of persons who suffered the same damage and who were all entitled to a refund of all premiums paid to defendants for two or more policies containing uninsured/underinsured motorist (UM/UIM) coverage but which did not provide any additional benefit not already provided in the first UM/UIM coverage. That the trial court understood this to be the thrust of plaintiffs claim is clear from the class certification order. The order assumed that the additional UM/UIM coverage “provided no meaningful benefit.” The single class certified included “all persons insured by defendants’ since DeHerrera [v. Sentry Insurance Co., 30 P.3d 167 (Colo.2001) ] under multiple policies.” The damages for all class members would be “those excess premiums paid ... for which no additional benefit was provided.” In responding to defendants’ motion to decertify the class, plaintiff continued to assert this single theory of recovery. There was no clear assertion that a partial refund under a “fraud on the market” theory would be pursued, and no suggestion whatsoever that additional subclasses could or should be established for claimants who would not be entitled to a full refund and whose claims would require different proof. See C.R.C.P. 23(c)(4).
Because plaintiffs claim was so clearly focused on a single class, a single claim, and a single measure of damages, the second judge was, in my opinion, correct in determining that defendants had presented new circumstances justifying decertification of the class.
Defendants showed that the additional UM/UIM coverage provided benefits beyond the original coverage and that a significant number of the class members would likely have opted for this additional coverage. The majority holds that the additional benefits from a second UM/UIM policy were obvious from reading DeHerrera v. Sentry Insurance Co., supra, and that defendants could have shown this in their opposition to plaintiffs motion to certify the class. While it is true that defendants could have shown the existence of additional benefits, they could not have shown the extensive impact the additional benefits would have upon the class until plaintiffs deposition was taken and the State Farm statistical evidence was disclosed. This new evidence showed that it was likely that many members of the class would not be entitled to a full refund, as claimed by plaintiff, because many of them might have wanted and been willing to pay for additional coverage. This evidence has a clear impact on the cohesiveness of the class membership and the proof required to establish the claims.
When this new evidence is viewed through the prism of the “fraud on the market” theory, it has different implications. However, in my view, plaintiff never asserted this theory and never even suggested that a class of *116claimants with two subclasses should be certified. When the evidence is viewed only from the perspective of plaintiffs single asserted claim for one class of claimants, it becomes clear that this is new evidence worthy of consideration in deciding the motion to decertify.
The majority rejects the statistical evidence because it related to a different insurance company rather than to defendants’ insureds and because the nature of State Farm’s DeHerrera disclosure was not made known to the court. However, at oral argument, plaintiff acknowledged that the demographics of State Farm’s insureds does not differ from that of defendants’ insureds. Accordingly, I would conclude that the evidence was relevant. As to the unknown nature of the disclosure, it must be remembered that defendants were not attempting to admit evidence to prove the merits of their defense, but rather were attempting to show that significant causation and damage issues existed that rendered the class certification improper. Under these circumstances, I would conclude that it was within the trial court’s discretion to determine the weight to be given the evidence. See Medina v. Conseco Annuity Assurance Co., 121 P.3d 345 (Colo.App.2005)(certification of a class action is within the trial court’s discretion). Further, I do not agree that the trial court prejudged a merits issue. The ruling did not decide the reliance and causation issues, but rather, in effect, held that such issues existed and impacted the class certification question. See C.R.C.P. 23(b)(3) (in deciding whether to certify class, court must consider whether common questions of law or fact predominate over questions affecting only individual members).
In conclusion, I would not consider plaintiffs “fraud on the market” theory because it was raised for the first time on appeal. Then, viewing the case only from the theory of recovery asserted in the trial court, I would conclude that the trial court did not abuse its discretion in granting the motion to decertify.