Aaron Emigh v. West Calcasieu Cameron Hospital

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-292

AARON EMIGH, ET AL.

VERSUS

WEST CALCASIEU CAMERON HOSPITAL, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2009-4845
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

**********

PHYLLIS M. KEATY
JUDGE

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Court composed of John D. Saunders, Billy Howard Ezell, and Phyllis M. Keaty,
Judges.

AFFIRMED.

J. Lee Hoffoss, Jr.
Claude P. Devall
Donald W. McKnight
Hoffoss Devall, LLC
517 W. College Street
Lake Charles, Louisiana 70605
(337) 433-2053
Counsel for Plaintiffs/Appellees:
Aaron Emigh
Glynn Able Benoit
Laura Allison Delouche

Michael G. Hodgkins
Veron, Bice, Palermo & Wilson, LLC
Post Office Box 2125
Lake Charles, Louisiana 70602
(337) 310-1600
Counsel for Plaintiffs/Appellees:
Aaron Emigh
Glynn Able Benoit
Laura Allison Delouche

Steven Broussard
Aaron Broussard
Broussard & Hart, LLC
1301 Common Street
Lake Charles, Louisiana 70601
(337) 439-2450
Counsel for Plaintiffs/Appellees:
Aaron Emigh
Glynn Able Benoit
Laura Allison Delouche

Robert E. Landry
Peter J. Pohorelsky
Scofield, Gerard, Pohorelsky, Gallaugher & Landry
901 Lakeshore Drive, Suite 900
Lake Charles, Louisiana 70601
(337) 433-9436
Counsel for Defendant/Appellant:
West Calcasieu Cameron Hospital

Errol J. King, Jr.
Layna C. Rush
Daniel P. Guillory
Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
450 Laurel Street
Chase Tower North, 20th Floor
Baton Rouge, Louisiana 70801
(225) 381-7000
Counsel for Defendant/Appellant:
UnitedHealthcare Insurance Company

Jonathan M. Herman
Brian C. Roux
The Herman Law Firm
1601 Elm Street, Suite 2002
Thanksgiving Tower
Dallas, Texas 75201
(214) 624-9805
Counsel for Defendant/Appellant:
Louisiana Health Services and Indemnity Company d/b/a
Blue Cross and Blue Shield of Louisiana

Charles A. O’Brien
Allison N. Pham
Post Office Box 98029
Baton Rouge, Louisiana 70898
(225) 295-2454
Counsel for Defendant/Appellant:
Louisiana Health Services & Indemnity Company d/b/a
Blue Cross and Blue Shield of Louisiana

Robert S. Kleinschmidt, Jr.
Attorney at Law
Post Office Box 1154
Lake Charles, Louisiana 70602
(337) 437-3440
Counsel for Defendant/Appellee:
R. J. Moss Enterprises, Inc.

KEATY, Judge.

Plaintiffs filed this putative class action suit against various defendants,

alleging violations of La.R.S. 22:1874, also known as the “Balance Billing Act.”

Several of the defendants (hereafter “Appellants”) appeal a trial court judgment

certifying this matter as a class action. Just over two years ago, the Louisiana

Supreme Court determined that “the class action is superior to any other available

method for a fair and efficient adjudication of the common controversy over the

disputed billing and lien practices.” Baker v. PHC-Minden, L.P., 14-2243, p. 1 (La.

5/5/15), 167 So.3d 528, 532. Because Appellants have failed to distinguish this

matter from Baker or other cases where this court endorsed the use of the class

action procedure in cases involving alleged violations of the Balance Billing Act,1

we affirm.

FACTS AND PROCEDURAL HISTORY

This lawsuit began when Aaron Emigh filed a petition for damages against

West Calcasieu Cameron Hospital (WCCH), alleging that he had received medical

treatment, after which WCCH refused to file a claim with his health insurance

company and hired a third-party collection agency to collect payment from him

directly, in an attempt to double bill him and his insurance provider. Emigh filed a

first amending and supplemental petition in July 2010, wherein he sought to have

the matter certified as a class action. By way of a second amending and

supplemental petition filed in June 2011, Glynn Able Benoit and Laura Allison

DeLouche were named as additional putative class representatives. The second

amending petition also named the following entities as additional defendants:

Highmark, Inc. d/b/a Highmark Blue Shield (Highmark); Louisiana Health Service
1
See Vallare v. Ville Platte Med. Ctr., LLC, 14-261 (La.App. 3 Cir. 11/5/14), 151 So.3d
984, writ denied, 15-121 (La. 8/28/15), 176 So.3d 401 and Desselle v. Acadian Ambulance Serv.,
Inc., 11-742 (La.App. 3 Cir. 2/1/12), 83 So.3d 1243, writ denied, 12-518 (La. 4/13/12), 85 So.3d
1253.

& Indemnity Company d/b/a Blue Cross and Blue Shield of Louisiana (BCBS);

UnitedHealthcare Insurance Company (United); and R.J. Moss Enterprises, Inc.

d/b/a Credit Services of Southwest Louisiana (Credit Services).2

Plaintiffs each received treatment at WCCH after being injured in a MVA.

At the time of his accident, Emigh was insured through his employer by a BCBS

plan that was administered by Highmark, Benoit was insured by his employer’s

self-funded plan that was administered by United, and DeLouche had a direct

policy of insurance issued by BCBS.

After a two-day hearing, the trial court certified this matter as a class action

pursuant to La.Code Civ.P. art. 591 by judgment dated November 10, 2016.

Written reasons for judgment were issued approximately one month later. The

judgment was appealed by WCCH, BCBS, and United. WCCH asserts the

following errors:

1. The trial court erred in finding that plaintiffs satisfied the
requirements of typicality and adequacy of representation set forth in
La. Code Civ. Proc. art. 591(A)(3) and (4) for maintaining a class
action.

2. The trial court erred in finding that plaintiffs could maintain
this action as a class action where plaintiffs seek mental anguish
and/or emotional distress damages, and thereby individualized
questions of causation and injury will predominate over common
issues making class certification inappropriate under La.Code Civ.
Proc. art. 591(B)(1)(3) and Louisiana jurisprudence.

3. The trial court erred in adopting without modification the
class definition proposed by the plaintiffs, as plaintiffs’ proposed class
definition would allow individuals who have suffered neither injury
nor any alleged violation of the Balanced Billing Act to recover
damages in this matter, and therefore does not meet the standards of
definability established by La. Code Civ. Proc. art. 591(A)(5) and
Louisiana jurisprudence.

2
Credit Services served as WCCH’s collection agency for the accounts of its patients
who were injured in motor vehicle accidents (MVAs) during the period relevant to the matter.
2

In its sole assignment of error, BCBS alleges that “The District Court erred in

certifying the plaintiff class because DeLouche failed to satisfy all of the elements

for class certification.” United presents the following assignment of error:

Did the District Court incorrectly grant Plaintiffs’ request for class
certification of Benoit’s claims against United, when: a) for each
purported class member, there could be any number of different
contracts, all of which may contain different provisions, which could
be relevant to the claims asserted against United; b) Benoit has been
made whole relating to his claim and, is therefore, not an adequate
class representative in this action because he has suffered no damage;
and c) Plaintiffs fail to offer a definable class as it relates to their
claims against United[?]

DISCUSSION

Standard of Review

A trial court has wide discretion in deciding whether to certify a
class. Subject to the manifest error standard, its factual findings can
only be reversed upon finding, based on the entire record, no
reasonable factual basis for the factual finding and the factfinder is
clearly wrong. However, we review its ultimate decision of whether
or not to certify the class under the abuse of discretion standard.

Baker, 167 So.3d at 538 (citations omitted).

Law

In Ford v. Murphy Oil U.S.A., Inc., 96-2913, 96-2917, 96-2929, p. 4 (La.

9/9/97), 703 So.2d 542, 544 (citation omitted), the supreme court explained:

The class action is a nontraditional litigation procedure
permitting a representative with typical claims to sue or defend on
behalf of, and stand in judgment for, a class of similarly situated
persons when the question is one of common or general interest to
persons so numerous as to make it impracticable to bring them all
before the court. The purpose and intent of class action procedure is
to adjudicate and obtain res judicata effect on all common issues
applicable not only to the representatives who bring the action, but to
all others who are “similarly situated,” provided they are given
adequate notice of the pending class action and do not timely exercise
the option of exclusion from the class action.

Louisiana Code of Civil Procedure Article 591, titled “Prerequisites;

maintainable class actions,” provides in pertinent part:

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A. One or more members of a class may sue or be sued as
representative parties on behalf of all, only if:

(1) The class is so numerous that joinder of all members is
impracticable.

(2) There are questions of law or fact common to the class.

(3) The claims or defenses of the representative parties are
typical of the claims or defenses of the class.

(4) The representative parties will fairly and adequately protect
the interests of the class.

(5) The class is or may be defined objectively in terms of
ascertainable criteria, such that the court may determine the
constituency of the class for purposes of the conclusiveness of any
judgment that may be rendered in the case. This prerequisite shall not
be satisfied if it is necessary for the court to inquire into the merits of
each potential class member’s cause of action to determine whether an
individual falls within the defined class.

“Once these five prerequisites have been met, La.Code Civ.P. art. 591(B) lists

three additional criteria, one of which must also be satisfied for certification

depending on the type of class action sought.” Baker, 167 So.3d at 538. Plaintiffs

herein sought class certification based on Article 591(B)(3) which provides:

The court finds that the questions of law or fact common to the
members of the class predominate over any questions affecting only
individual members, and that a class action is superior to other
available methods for the fair and efficient adjudication of the
controversy. The matters pertinent to these findings include:

(a) The interest of the members of the class in individually
controlling the prosecution or defense of separate actions;

(b) The extent and nature of any litigation concerning the
controversy already commenced by or against members of the class;

(c) The desirability or undesirability of concentrating the
litigation in the particular forum;

(d) The difficulties likely to be encountered in the management
of a class action;

(e) The practical ability of individual class members to pursue
their claims without class certification;

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(f) The extent to which the relief plausibly demanded on behalf
of or against the class, including the vindication of such public
policies or legal rights as may be implicated, justifies the costs and
burdens of class litigation[.]

“The burden of establishing the statutory criteria have been satisfied falls on the

party seeking to maintain the class action.” Baker, 167 So.3d at 539.

The sole issue that a trial court and a reviewing court should consider is

whether the class action procedure should be employed to try the matter. See

Baker, 167 So.3d 528. Thus, courts need not be “concerned with whether the

plaintiffs have stated a cause of action or the likelihood they ultimately will prevail

on the merits, but whether the statutory requirements [for class certification] have

been met.” Id. at 537; see also Duhe v. Texaco, Inc., 99-2002, p. 11 (La.App. 3 Cir.

2/7/01), 779 So.2d 1070, 1078 (“for purposes of certification, a court is not

permitted to review the claims in a case on their substantive merit.”), writ denied,

01-637 (La. 4/27/01), 791 So.2d 637. Moreover, “[a]ny errors to be made in

deciding class action issues should be in favor of and not against the maintenance

of the class action, because a class certification order is always subject to

modification or decertification[.]” Baker, 167 So.3d at 537 (emphasis added).

See also La.Code Civ.P. art. 592(A)(3)(d). Nevertheless, “[t]he determination of

whether a class action meets the requirements imposed by law involves a rigorous

analysis.” Brooks v. Union Pac. R.R. Co., 08-2035, p. 10 (La. 5/22/09), 13 So.3d

546, 554.

In Baker, 167 So.3d at 531, the Louisiana Supreme Court granted the

plaintiffs’ writ application for the purpose of “resolv[ing] a conflict among the

appellate courts of this state on the issue of whether a class action is the superior

method for adjudicating actions brought pursuant to the Health Care Consumer

5

Billing and Disclosure Protection Act, La.Rev.Stat. § 22:1871 et seq. (“Balance

Billing Act”).” The supreme court explained the issue before it as follows:

Across the state, plaintiffs are filing these actions against health care
providers from whom they sought treatment following automobile
accidents and with whom their health care insurers had contracted
reimbursement rates for the services rendered. At issue is the legality
of these providers’ policy of collecting or attempting to collect the
undiscounted rate from the insured if a liability insurer may be liable,
implemented through the filing of medical liens against plaintiffs’
lawsuits and settlements pursuant to the health care provider lien
statute, La.Rev.Stat. § 9:4752. A review of the jurisprudence reveals
plaintiffs in the Third Circuit Court of Appeal proceed pursuant to our
class action provisions, while plaintiffs in the Second Circuit Court of
Appeal have been denied class certification. After reviewing the
record and the applicable law, we find the class action is superior to
any other available method for a fair and efficient adjudication of
the common controversy over the disputed billing and lien
practices.

Id. at 531-532 (emphasis added). The third circuit cases referred to in the

preceding quote were Vallare, 151 So.3d 984, and Desselle, 83 So.3d 1243.

In Vallere, a defendant hospital appealed the trial court’s certification of a

class in a lawsuit brought by plaintiffs, alleging that the hospital and a health

insurer had violated the Balance Billing Act. The class definition approved by the

trial court divided the class into two subclasses, an attempt to recover subclass and

a payor subclass. On appeal, we affirmed the class certification but amended the

class definition to delete the subclasses, reasoning that the plaintiffs in the

subclasses “do not represent different issues.” Vallare, 151 So.3d at 988. In doing

so, we noted that the “only difference” between the subclasses was that one of

them was “seeking reimbursement for sums paid,” while the sole issue to be

decided was “whether the [hospital’s] billing practice violated La.R.S. 22:1874.”

Id. We found significant in Vallere the fact that the “class definition [was] very

similar to that approved by this court [several years prior] in Desselle,” wherein we

“certified a class action where the claim concerned Acadian Ambulance’s policy of

6

attempting to recover its full rate for services from the patient’s settlement or

judgment with the tortfeasor rather than attempting to recover the discounted rate

contracted for between itself and the patient’s health insurer.” Id.

In an opinion rendered upon its grant of certiorari to review the trial court’s

overruling of an exception of no cause of action that BCBS filed against DeLouche

in this very lawsuit, the supreme court astutely explained:

In this two-contract health care system that affects the majority
of health insurance policies in this state, the insurance issuer, such as
Blue Cross, promises to its insureds, such as Delouche, coverage and
the availability of discounted rates based on the existence of its
contract with its contracted providers, such as WCCH. The purpose
of a health insurance contract and the very reason insureds obligate
themselves to the payment of premiums and a restricted choice of in-
network providers, is to receive coverage and the benefits of
negotiated, reduced health care costs. To narrowly construe the object
to mean only payment of covered charges, as Blue Cross argues,
ignores the raison d’etre of the contract: an economic benefit to the
insured. Holding otherwise is illogical based on the terms of this high
deductible policy, where the promised reduced rate attaches the
instant a medical charge is incurred, regardless of whether a
deductible has been satisfied. The insurance policy at issue promised
that even the out-of-pocket expenses that count towards Delouche’s
deductible would be subject to a discount. If all that was promised by
Blue Cross was coverage of the maximum amount, the incentive to
have insurance, specifically a high deductible policy, dissipates
insofar as the insured could simply pay the non-discounted bill herself
without also incurring the costs of premiums. For these reasons, we
find an object of the contract is the entitlement to discounted health
care costs.

Emigh v. W. Calcasieu Cameron Hosp., 13-2985, pp. 7-8 (La. 7/1/14), 145 So.3d

369, 374-75 (footnotes omitted) (hereafter referred to as “Emigh I”). Although the

class certification hearing had not yet taken place when the supreme court decided

Emigh I, we note that the court, in dicta, stated that “[t]he liability of a health care

provider for balance billing is the central issue in the underlying class action

against WCCH[.]” Id. at 371 n.3.

7

Analysis

Resolution of these appeals requires that we answer one question, i.e., was

this matter properly certified as a class action. To answer that question, we will

first review the trial court’s factual findings, as explained in its reasons for

judgment, regarding whether Plaintiffs met their burden of proving the five prongs

found in La.Code Civ.P. art. 591(A). If we find no manifest error in those factual

findings, we will next examine the trial court’s factual finding with regard to

whether Plaintiffs met their burden of proving the requirement set forth in La.Code

Civ.P. art. 591(B)(3). Finally, should we conclude that the trial court’s findings

regarding the foregoing issue were not manifestly erroneous, we can only overturn

its decision to certify the class if we find that such decision amounts to an abuse of

the trial court’s wide discretion. See Baker, 167 So.3d 528.

1. Numerosity

“The numerosity requirement does not have a strict numbers threshold,

rather it is based on the facts and circumstances of each case and requires a

showing that ‘joinder is impractical and there is a definable group of aggrieved

persons.’ Doe v. Southern Gyms, LLC, 12-1566, p. 12 (La.3/19/13) 112 So.3d 822,

831.” Vallare, 151 So.3d at 989.

With regard to this factor, the trial court found joinder of the class members

would be impractical and that “[a] class action suit would be the most useful and

judicially efficient way to proceed with these plaintiffs.” None of the Appellants

have challenged this factual finding. Amy Johnson, who had previously been

appointed as a corporate representative by WCCH, testified at the class

certification hearing that the hospital determined that more than 3,000 patients

sought treatment at WCCH after being injured in a MVA between 2000 and 2013.

Of those, 254 had been identified as potential class members. She explained that
8

the criteria for determining those individuals were: they had sought treatment at

WCCH after being injured in a MVA; they had private health insurance at the time

and had presented their insurance information at the time of treatment; and they

were billed at the full undiscounted, i.e., “chargemaster,” rate rather than the

contractual discounted rate negotiated between their insurer, or its third-party

administrator and WCCH, and their bill had been paid by the liability insurer or

private health insurance. Ms. Johnson noted that individuals who had government-

issued or workers’ compensation insurance were excluded, as were those whose

private insurance had lapsed due to non-payment, et cetera. Patients who

otherwise met the criteria but had been charged the contracted reimbursement rate

were also excluded. No evidence was presented at the hearing to contradict the

named Plaintiffs’ evidence that they were proper class representatives or that any

of the 254 potential class members identified by WCCH should be excluded from

the class. Moreover, the trial court would have to delve into the merits of an

individual class member’s claim in order to exclude them from the class, which

runs afoul of the dictates set forth by the supreme court in Baker and Duhe. Thus,

we find no manifest error in the trial court’s conclusion that the numerosity

requirement was met by Plaintiffs.

2. Commonality

The commonality requirement is met if plaintiffs can
demonstrate that there is “one issue, the resolution of which will affect
all or a significant number of plaintiffs[.]” Duhe, 779 So.2d at
1078. . . . However, it is not necessary that all plaintiffs suffer
identical damage and “individual questions of quantum do not
preclude a class action when predominate liability issues are common
to the class.” McCastle v. Rollins Environmental Services of
Louisiana, Inc. 456 So.2d 612, 620 (La.1984). This Court in Duhe,
779 So.2d at 1085, stated:

The mere fact that varying degrees of damage may result
from the same factual transaction and same legal
relationship or that class members must individually
9

prove their right to recover, does not preclude class
certification.

The Duhe court held once plaintiffs have demonstrated a course of
conduct by the defendants giving rise to a “common nucleus of
operative facts[,]” and there are common issues of liability,
differences in individual damages while relevant in quantum will not
defeat class certification.

Clark v. Trus Joist MacMillian, 02-676, 02-512, pp. 8-9 (La.App. 3 Cir. 12/27/02),

836 So.2d 454, 461, writ denied, 03-275 (La. 4/21/03), 841 So.2d 793. “The test

of commonality is not a demanding one[.]” Duhe, 779 So.2d at 1078.

In its reasons, the trial court stated:

In the present case, all persons attempting to be made class
members received services from West Calcasieu Cameron Hospital
(WCCH). All persons were subject to WCCH’s attempt to bill in
excess of the contracted reimbursement rate and/or amounts that
should have been paid by the patient’s health insurer. The Court finds
commonality between all persons attempting to be certified as a class.

The testimony and evidence presented at the class certification hearing support the

trial court’s finding that Plaintiffs met their burden of proving commonality.

Accordingly, we find no manifest error in the trial court’s conclusion that plaintiffs

satisfied the requirement found in La.Code Civ.P. art. 591(A)(2).

3. Typicality

The element of typicality “is satisfied if the class representative[’s] claims

arise out of the same event, practice, or course of conduct giving rise to the claims

of the other class members and those claims arise from the same legal theory.”

Desselle, 83 So.3d at 1251.

The trial court’s written reasons provide:

With regard to the third prong of typicality, the Court finds
typicality exists. Typicality is satisfied if the representative plaintiffs’
claims arise out of the same event or course of conduct as the class
members’ claims and are based on the same legal theory. [Duhe, 779
So.2d] at 1079. In the present case, the course of conduct that is the
basis for this litigation is typical between the class representatives and
the class members. In addition the claims are based on the same legal
10

theories. Both the representatives and the members of the prospective
class were subject to WCCH’s attempt to bill in excess of the
contracted reimbursement rate and/or amounts that should have been
paid by the patient’s health insurer. In addition, each of the plaintiffs
purchased health coverage based upon the promise that the contracted
providers would not balance bill.

United Health Care argues that Mr. Benoit is not typical of the
class because his claim was paid. The jurisprudence is clear that a
Defendant cannot pay the claims of a class representative in order to
render a class action suit moot. Davis v. Jazz Casino, LLC, 03-0005
(La.App 4 Cir. 1/14/04), 864 So.2d 880 [writ denied, 04-572 (La.
4/23/04), 870 So.2d 304]. Mr. Benoit has stated that he still wants to
continue with this trial to the end, regardless of the claims paid by
United. In addition, Mr. Benoit still has remaining claims for general
damages, attorney fees, etc. The Court finds that Mr. Benoit’s claims
are typical of the other plaintiffs.

Again, the testimony and evidence presented by Plaintiffs at the class

certification hearing support their allegations that the Defendants acted in violation

of the prohibitions set out in the Balance Billing Act. Although each individual

Plaintiff may have suffered varying damages as a result of the Defendants’ conduct,

they all allege that those damages were the result of the same actions, such that any

finding of liability will apply to all of the proposed class members. With regard to

Mr. Benoit, the evidence shows that his attorney paid WCCH’s bill out of the

settlement he received in connection with his MVA. After this suit was filed, the

trial court judge previously assigned to this matter ordered Mr. Benoit’s counsel to

file a claim against United, and United reimbursed Mr. Benoit for the full amount

that had been paid on his behalf, despite the fact that the deadline to file a claim

with United had past. In that vein, Christine O’Brien, United’s vice president of

sales explained that a self-funded plan such as that of Benoit’s employer can direct

its third-party claims processor, i.e., United, to pay a claim even after the claim

window has expired. Moreover, as correctly noted by the trial court, “[o]nce the

damage has occurred and the class solidified, the tortfeasor cannot thereafter

escape liability by correcting the problem . . . , and then claiming that damages as
11

to th[at] class member[] ha[s] ceased. Davis, 864 So.2d at 890. The trial court

committed no error in determining that typicality existed among the proposed class

representatives.

4. Adequacy

In Duhe, 779 So.2d at 1079 (citation omitted), this court explained:

The purpose of the adequacy requirement is to protect the legal
rights of the unnamed class members. . . . The test often used for
adequate representation consists of three elements: (1) the chosen
class representatives cannot have antagonistic or conflicting claims
with other members of the class; (2) the named representatives must
have a sufficient interest in the outcome to insure vigorous advocacy;
and (3) counsel for the named plaintiffs must be competent,
experienced, qualified, and generally able to conduct the proposed
litigation vigorously.

In the instant case, the trial court’s reasons for judgment note the following:

With regard to the fourth prong of adequacy, the Court finds the
representative will fairly and adequately protect the interests of the
class. . . .

In the present case, there is no evidence that the class
representatives have conflicting claims with other members of the
class. The evidence shows the named representatives have a
sufficient interest in the outcome of the proceedings. The prospective
class’s counsel are more than able to conduct the proposed litigation
vigorously. Thus, the Court finds there is ample evidence to meet the
adequacy requirement.

Each of the proposed class representatives testified that they intend to pursue

this lawsuit until its conclusion. In addition, Defendants failed to produce any

evidence to show that the named Plaintiffs’ claims are in any way antagonist with

each other or with any other potential class members. Given the much discretion

left to the trial court when deciding whether to certify class, we cannot say that the

trial court manifestly erred in finding that the proposed class members adequately

represent the class.

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5. Definability

This court discussed the requirement that a class be objectively definable in

Duhe, 779 So.2d at 1080, wherein we stated:

“The class need not be so clearly defined that every class member can
be identified at the commencement of the action.” Ashe v. Board of
Elections in City of New York, 124 F.R.D. 45, 47 (E.D.N.Y.1989).
The trial court can modify the class as needed when discovery or the
trial adds relevant facts to the record. This flexibility appears in the
language of Article 591(A)(5) (emphasis supplied) “[T]he class is or
may be defined . . . .”

The trial court’s reasons state:

With regard to the fifth prong of definability, the plaintiffs have
established a sufficient class definition in their Fourth Amending and
Supplemental Class Action Petition for Damages, Breach of Contract,
Declaratory Judgment and Injunctive Relief, paragraph 71.

The class definition proposed by plaintiffs appears below:

71.

The Plaintiff Class to be certified is defined as follows;

All individuals currently or formerly residing in the State of
Louisiana during the relevant time period:

(1) Having “Health Insurance Coverage” [as defined by La. R.S.
22:1872(18)] providing coverage for themselves or for others
for whom they are legally responsible, with any “Health
Insurance Issuer” [as defined by La. R.S. 22:1872(19)] at the
time “covered health care services” [as defined by La. R.S.
22:1872(8)] were provided at West Calcasieu Cameron
Hospital; and,

(2) With which “Health Insurance Issuer” West Calcasieu
Cameron Hospital was a “contracted health care provider” at
the time of service [as defined by La. R.S. 22:1872(6)]; and,

(3) From whom West Calcasieu Cameron Hospital collected,
and/or attempted to collect, the “Health Insurance Issuer’s
Liability [as defined by La. R.S. 22:1872(20)], including, but
not limited to, any collection or attempt to collect from any
settlement, judgment or claim made against any third person or
insurer who may have been liable for any injuries sustained by
the patient (which insurers include those providing liability
coverage to third persons, uninsured/underinsured coverage,
and/or medical payments coverage); and/or
13

(4) From whom West Calcasieu Cameron Hospital collected,
and/or attempted to collect, any amount in excess of the
“Contracted Reimbursement Rate” [as defined by La.
R.S.22:1872(7)], including but not limited to, any collection or
attempt to collect from any settlement, judgment, or claim made
against any third person or any insurer which may have been
liable for any injuries sustained by the patient (which insurers
include those providing liability coverage to third persons,
uninsured/underinsured coverage, and/or medical payments
coverage).

Appellants argue that the proposed class definition is inadequate because it

potentially includes members who suffered no damages. We reject this argument

as this court and the supreme court have clearly stated that a court should not look

to the merits when determining class certification. See Baker, 167 So.3d 528,

Duhe, 779 So.2d 1070. Moreover, “because a class certification order is always

subject to modification or decertification,” “[a]ny errors to be made in deciding

class action issues should be in favor of and not against the maintenance of the

class action.” Baker, 167 So.3d at 537. We conclude that the class definition

approved by the trial court has been sufficiently tailored to fit the facts of this

matter. Therefore, mindful of the fact the trial court has the authority to later

modify or decertify the class should it deem it necessary, we cannot say that it

manifestly erred in concluding that Plaintiffs sufficiently defined the class.

6. Common Questions of Law and Fact Predominate

After concluding that Plaintiffs had satisfied the five requirements of

La.Code Civ.P. art. 591(A), the trial court found that they had also met the

additional criteria set forth in La.Code Civ.P. art. 591(B)(3). In that regard, the

written reasons noted:

In the present case, the Court finds that the questions of law and
fact common to the class members predominate over the questions
affecting only individual members. In addition, the Court is
convinced that a class action is the fairest and most efficient way to
adjudicate this matter. The main issues in this matter are WCCH’s
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balance bill procedure and health insurers, which contracted with
WCCH, failure to protect its insureds and enrollees from WCCH’s
practice. These are common issues of law and fact between the class
representatives and the class members. There is no requirement that
every question of law and fact has to be common between the
members, only that the questions of law and fact of the class
predominate those of any individual member.

At oral argument in this matter, Appellants complained that Plaintiffs focus

on the jurisprudence rather than on the facts of this case. Plaintiffs, on the other

hand, suggested that Appellants have incorrectly focused on the merits of

Plaintiffs’ claims and avoided addressing the caselaw where the courts have found

that the nature of actions brought under the Balance Billing Act makes them

suitable for adjudication as class actions. Because we have found no manifest

error in the trial court’s factual findings and because Appellants have failed to

distinguish this matter from Baker, Vallare, and Desselle, we conclude that the trial

court did not abuse its discretion in certifying this matter as a class action.

DECREE

For the foregoing reasons, the judgment of the trial court certifying this

matter as a class action is affirmed. All costs of this appeal are assessed against

West Calcasieu Cameron Hospital, Louisiana Health Service & Indemnity

Company d/b/a Blue Cross and Blue Shield of Louisiana, and UnitedHealthcare

Insurance Company.

AFFIRMED.

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