Maak v. IHC Health Services, Inc. , 810 Utah Adv. Rep. 34 ( 2016 )

2016 UT App 73THE UTAH COURT OF APPEALS
ANN V. MAAK,
Appellant,
v.
IHC HEALTH SERVICES, INC.,
Appellee.
Opinion
No. 20140003-CA
Filed April 14, 2016
Third District Court, Salt Lake Department
The Honorable Kate A. Toomey
No. 030911869
Gregory M. Hess, Terry E. Welch, Breanne D. Fors,
and LaShel Shaw, Attorneys for Appellant
Alan C. Bradshaw, Steven C. Bednar, and Chad R.
Derum, Attorneys for Appellee
JUSTICE JOHN A. PEARCE authored this Opinion, in which JUDGES
J. FREDERIC VOROS JR. and STEPHEN L. ROTH concurred.1
PEARCE, Justice:
¶1 Appellant Ann V. Maak appeals from the district court’s
order granting IHC Health Services, Inc.’s (IHC) motion to
decertify a class and denying Maak’s motion to amend the class
definition. Maak contends the district court abused its discretion
in so ruling. Maak also contends that the district court erred in
1. Justice John A. Pearce began his work on this case as a
member of the Utah Court of Appeals. He became a member of
the Utah Supreme Court thereafter and completed his work on
the case sitting by special assignment as authorized by law. See
generally Utah R. Jud. Admin. 3-108(3).
Maak v. IHC Health Services
determining that IHC had not waived its counterclaims against
class members. We are unable to discern the basis for the district
court’s conclusion that IHC did not waive its counterclaims. We
therefore remand for the entry of a new decision on that issue—
one that is accompanied by a development of the factual record
and appropriate legal analysis. Because the district court relied
on the viability of IHC’s counterclaims in its decision to grant
IHC’s motion to decertify the class, we vacate the court’s
decertification decision for further consideration in light of the
district court’s resolution, on remand, of Maak’s challenge to
IHC’s counterclaims. We also conclude that the district court’s
order does not permit us to determine whether it properly acted
within its discretion in denying Maak’s motion to amend the
class definition, and we vacate that decision as well. We
therefore remand the case to the district court for further
consideration.
BACKGROUND2
¶2 Maak sued IHC, arguing that IHC had engaged in
‚fraudulent and improper billing practices.‛ Maak alleged that
IHC improperly overcharged her for medical care she had
received and that the overcharges resulted from IHC’s regular
and systematic billing practices.
¶3 After Maak received treatment at LDS Hospital—an IHC
facility—she received a statement of itemized charges totaling
$11,396.11. Regence Blue Cross Blue Shield (Regence) provided
health insurance to Maak at the time of her treatment. Regence
reimbursed IHC $12,310.36 for Maak’s treatment, an amount that
2. This recitation of the facts relies in part on the description
found in Maak v. IHC Health Servs., Inc., 2007 UT App 244, 166
P.3d 631. Additional factual background can be found there. See
id. ¶¶ 2–5.
20140003-CA 2 2016 UT App 73Maak v. IHC Health Services
exceeded the itemized charges. Regence paid the greater amount
because, ‚[p]ursuant to a contract between IHC and Regence, all
medical procedures performed at LDS Hospital are classified in
a Diagnostic Related Group (DRG), which Regence agrees to
reimburse, at a predetermined fixed rate, without regard to the
actual costs LDS Hospital incurs for the services.‛ Maak v. IHC
Health Servs., Inc., 2007 UT App 244, ¶ 3, 166 P.3d 631. In
addition to the payment it received from Regence, IHC billed
Maak an additional $986.63 ‚based on Maak’s twenty percent
coinsurance obligation‛ her insurance contract with Regence
imposed. Id. ¶ 4.
¶4 During discovery, an IHC employee explained the billing
practices IHC employed when an insurer had agreed to
reimburse IHC a fixed price for a medical procedure based on a
DRG classification. In addition to reimbursing IHC based upon
the DRG classification, the insurance company would
‚determine*+ the patient’s liability based on the benefits of *the
patient’s] particular [insurance] policy.‛ The insurance company
would then inform IHC of any responsibility for payment that
the patient might owe under the insurer’s agreement with the
patient. For example, the contract between the insurer and
insured might impose a coinsurance obligation on the patient.3
¶5 IHC would then combine the payment it received from
the insurance company and ‚the amount due from the patient.‛
If the combined amount did not match the original itemized
charges of the insured’s medical procedure, IHC’s system would
automatically make an adjustment to the account, which IHC
terms a ‚contractual adjustment.‛ The contractual adjustment
3. By way of example, Maak’s contract with Regence required
her to pay twenty percent of the covered procedure, subject to an
annual cap, as her coinsurance obligation. Maak v. IHC Health
Servs., Inc., 2007 UT App 244, ¶ 4 & n.1, 166 P.3d 631.
20140003-CA 3 2016 UT App 73Maak v. IHC Health Services
was designed ‚to bring the charges in line with the terms of the
reimbursement contract‛ between IHC and Regence. In cases
where the sum of the amount IHC received from the insurer and
the patient’s responsibility exceeded the itemized charges, the
contractual adjustment would be an additional amount posted to
the patient’s account. In cases where the sum of the insurer’s
payment and the patient’s responsibility was less than the
itemized charges, the contractual adjustment would reduce the
patient’s original itemized charges. Thus, where the insurer and
IHC agreed to reimbursement based upon DRG classifications,
IHC’s billing system would adjust a patient’s account so that the
amount ultimately billed equaled the combined amount of the
DRG reimbursement from the insurer and the amount of the
patient’s responsibility under the patient’s insurance contract.
This created a system where in some cases a patient and her
insurance company would be charged more than the sum total
of the patient’s itemized charges and in other cases they would
be charged less.
¶6 In this instance, IHC billed Maak for $986.63, her patient
responsibility under her contract with Regence. Maak initially
resisted IHC’s efforts to collect but eventually paid the full
amount. Maak continued to dispute IHC’s ability to collect the
coinsurance because ‚IHC already had been more than fully
compensated by Regence for the hospital charges incurred on
her behalf.‛ Id. ¶ 4. Maak then sued IHC, on behalf of herself and
a class of similarly situated patients for, among other causes of
action, fraud and breach of contract. See id. The district court
granted summary judgment to IHC on all of Maak’s claims.
¶7 Maak appealed to this court and argued, among other
things, that the district court erred in concluding that IHC’s
efforts to bill Maak in excess of the itemized charges did not
breach Maak’s contracts with IHC and Regence. Id. ¶ 7. We
agreed with Maak and reversed the district court’s grant of
summary judgment on Maak’s breach of contract claim. Id. ¶ 29.
20140003-CA 4 2016 UT App 73Maak v. IHC Health Services
We held ‚that as a matter of contract law, IHC could not bill
Maak for medical services after it had collected the full amount
chargeable for those services from Maak’s insurer.‛ Id. We then
remanded the matter for a determination of whether Maak could
satisfy the class certification requirements contained in rule 23 of
the Utah Rules of Civil Procedure. Id. ¶ 32; see also Utah R. Civ.
P. 23(a)–(b).
¶8 On remand, the district court conditionally certified the
case as a class action. The court determined that all elements of
rule 23 were conditionally satisfied, and certified a class of:
All patients who at any time after or within six
years prior to May 27, 2003 received medical
services from an IHC-owned or operated medical
facility or an IHC health-care provider of any kind
and then were billed for amounts that, when
collected, resulted in IHC receiving in combination
from the patient’s insurance company and the
patient more than actual charges. Medicare
patients are excluded.
Although it certified the class, the district court questioned
whether ‚the class should include only individuals who were
insured by Regence, or alternatively, patients, regardless of
insurer, who were billed for amounts that resulted in IHC
receiving from the insurer and patient more than the actual
expenses.‛ The court ultimately concluded, ‚Unless a patient’s
insurance company’s contract with the patient grants IHC the
right or obligation to collect a co-payment from a patient, the
identity of the insurer is irrelevant to the fact that IHC breached
its contract with the patient . . . .‛ Because the court certified the
class in the midst of discovery, it had insufficient information to
determine if other insurance companies’ contracts were similar
to Regence’s. Thus, the court ‚conditionally include*d+ class
members not limited to Regence insureds.‛ The court cautioned
20140003-CA 5 2016 UT App 73Maak v. IHC Health Services
that the ‚class definition is conditional‛ and noted that rule 23
‚permits an order on class certification to be altered or amended
at any time before a decision on the merits.‛ See Utah R. Civ. P.
23(c)(1).
¶9 Following class certification, the parties developed a two-
stage discovery process to identify class members, designated as
‚Tier 1‛ and ‚Tier 2.‛ In the first stage, IHC initiated an
automated review of its records ‚to identify instances when *it+
may have collected more than what was listed on‛ the patient’s
itemized statement. In the second stage, IHC organized ‚a
manual audit of [its] patient files to identify instances in which
IHC collected more than the itemized statements.‛ The district
court noted that this process identified 41,849 instances where
IHC collected money in excess of an itemized statement. It also
noted that the overcharges totaled roughly $9,500,000, with an
average of more than $220 per instance.
¶10 In addition to collecting data regarding its billing of
patients for more than their itemized charges, IHC identified
instances when its billing practices led to ‚shortfalls between
what patients and their insurers paid and what was listed on the
itemized statements.‛ IHC referred to this data as ‚Tier 1.5,‛ and
contended that approximately ninety percent of the class
members had at some point paid less than their itemized
statements. IHC then asserted counterclaims against Maak and
the class members for those alleged shortfalls. IHC estimated
that aggregate total damages for these counterclaims amounted
to $220,000,000, with an average of $6,822 per instance.
¶11 Maak moved for summary judgment on IHC’s
counterclaims. Maak argued that IHC had no valid
counterclaims for the so-called ‚shortfall amounts‛ and that
even if it did, the claims failed because IHC had waived its right
to bill and collect any ‚shortfall[s].‛ IHC opposed summary
judgment, arguing that its counterclaims were valid and that it
20140003-CA 6 2016 UT App 73Maak v. IHC Health Services
had not waived its right to collect the shortfall amounts.
Approximately six months later, Maak filed a notice to submit
her summary judgment motion for decision. There is no
indication in the record that the district court ever explicitly
ruled on Maak’s motion.
¶12 IHC then moved to decertify the class. IHC contended
that decertification was appropriate because individual inquiry
into each ‚patient’s account and . . . insurance contract‛ was
necessary prior to resolving the case. IHC also maintained that in
thousands of cases, ‚critical documents such as *a patient’s+
Explanation[] of Benefits‛ were unavailable and it could not
determine in those cases ‚why [it] collected more than the
Itemized Statement when patient and insurer payments are
combined.‛ IHC argued that prior to the class adjudication, ‚an
exhaustive analysis and adjudication of the individual facts of
each and every case is necessary,‛ which would lead to
‚thousands of mini-trials that are anathema to class action
procedure.‛
¶13 IHC also claimed that, during discovery, it found
evidence that many of the class members’ insurance contracts
were materially different from Maak’s. In some instances, IHC
insisted it could ‚conclusively demonstrate‛ that it was
authorized to collect the overbilled amounts from the patient as
a third-party beneficiary to the patient’s insurance contract. In
others, it argued that class members should be excluded
‚because their claims, if any, are governed by ERISA[4] or
precluded by arbitration clauses [in the insurance contracts+.‛ In
addition, IHC believed many class members would likely be
‚exposed to claims from their insurers if the *district court+
4. The federal Employee Retirement Income Security Act
(ERISA) creates standards and ‚safeguards‛ for certain
employee benefit plans. See 29 U.S.C. § 1001 (2012).
20140003-CA 7 2016 UT App 73Maak v. IHC Health Services
rule[d] that patients are not responsible to pay [IHC] for the
mandatory coinsurance, deductibles, and copayments‛ provided
in their insurance contracts.
¶14 The court’s ability to resolve the dispute on a class-wide
basis was also undercut, IHC argued, by its counterclaims,
which would require additional individualized adjudication and
would create ‚misaligned‛ interests within the class due to
many class members likely owing more ‚than they could ever
expect to recover‛ from IHC. For all these reasons, IHC
requested decertification of the class.
¶15 Maak opposed IHC’s motion to decertify the class, but
also moved to amend the class definition. Maak argued that
despite the complex nature of the case, a ‚common question‛
bound the class together—the unlawfulness of IHC’s practice of
overcharging patients after having been fully reimbursed by
their medical insurer—and that there was ‚more than a
sufficient legal and evidentiary basis‛ to justify both a rejection
of IHC’s proposed decertification and a grant of Maak’s request
to amend the class definition.
¶16 Maak argued that rather than decertify the class, the court
should amend the class to only include those who, according to
the Tier 2 review, were overbilled ‚in the exact same way as
Maak, as the result of a flat-fee [DRG reimbursement method]
between IHC and the commercial insurer and the systematic
IHC overbilling practices.‛ Essentially, Maak argued that her
proposed amended class met rule 23’s class certification
requirements for three reasons: (1) because this court held IHC’s
overcharging of Maak to be an unlawful breach of contract; (2)
because all members of the proposed class had contracts with
their insurers that were similar to Maak’s, making IHC’s
overcharging unlawful in those instances; and (3) because any
required individualized inquiry would be outweighed by the
potential for the case’s ‚class-wide resolution in a single stroke.‛
20140003-CA 8 2016 UT App 73Maak v. IHC Health Services
¶17 Maak proposed the class be amended to include:
All patients who, at any time after or within six
years prior to May 27, 2003, were insured by a
commercial insurance company that had a [DRG],
fee schedule, and/or per diem reimbursement
agreement with IHC; received covered medical
services from an IHC medical facility or other IHC
health-care provider; and then were billed by IHC
for those services in an amount that, when
collected, resulted in IHC receiving a combined
amount, from the commercial insurer’s payments
and the patient’s subsequent payments for those
services, that was more than IHC’s itemized
charges for those services.
This refined definition, Maak contended, would remedy the
‚infirmities alleged by IHC,‛ while still holding IHC ‚to the
results of the two-tiered process that it proposed, co-designed,
and completed.‛
¶18 Maak also contended that class members should be
included regardless of whether the member’s Explanation of
Benefits document (EOB) could be found because IHC had
destroyed many of those documents after the case was filed. In
Maak’s view, IHC should not be allowed to argue that class
membership would be difficult to determine for those who no
longer have an EOB, because the EOBs were ‚solely in IHC’s
control and were destroyed by IHC, most of them after [the case]
was filed.‛5 For that reason, Maak claimed, the district court
5. To support this contention Maak maintained, ‚IHC has
admitted that it has ‘archived,’ ‘purged,’ and ‘not retained’ the
EOBs, including as late as July 2007, four years after Maak filed
*suit+.‛
20140003-CA 9 2016 UT App 73Maak v. IHC Health Services
‚should rule that all inferences from the missing EOBs . . . be
drawn in favor of the Class‛ based on the doctrine of spoliation
of evidence, and that even class members without EOBs should
be considered properly included in the class. Alternatively,
Maak contended, ‚[E]ven if the Court were to exclude claims
with missing EOBs . . . a group of thousands of patients with
millions of dollars of damages would remain appropriate for
class adjudication.‛
¶19 Addressing IHC’s counterclaims, Maak argued that the
counterclaims would not impede class-wide adjudication
because IHC had ‚intentionally and unequivocally‛ waived
those claims by voluntarily collecting less than the amounts it
had sent to the patients in their itemized charges. Maak also
argued that IHC’s counterclaims were not compulsory and
therefore asked that they ‚be dealt with in a separate suit rather
than being allowed to defeat the Class.‛
¶20 Following extensive briefing, the district court granted
IHC’s motion to decertify the class and denied Maak’s motion to
amend the class definition. The court found that although IHC
had collected amounts from class members in excess of their
respective itemized charges, ‚the reasons for *the overpayments+
are many and are not necessarily the result of a systematic
billing practice in violation of the *parties’+ contractual
relationships.‛ The court concluded, ‚*T+here are *no longer+
questions of law or fact common to the class and . . . the claims
or defenses of the representative parties are [no longer] typical of
the claims or defenses of the class.‛
¶21 The court next concluded that it was ‚not feasible to
determine on a class-wide basis whether individuals [were] even
appropriately included in the conditional class, and whether
liability exists.‛ The court highlighted several factual scenarios
that would exclude some members from the class, including:
20140003-CA 10 2016 UT App 73Maak v. IHC Health Services
1) where the combined payments from the patient
and insurer do not exceed IHC’s itemized charges;
2) where the circumstances of the individual case
are inconsistent with the conditional class
definition; 3) where the patient did not experience
a loss; and 4) where IHC was not at fault for the
overpayment.
¶22 The court determined that ‚there can be no uniform
alignment of interests, and no ability to generalize causation,
injury, and liability‛ when thousands of class members were
‚subject to counterclaims that might involve widely varying
degrees of damages.‛ The court was also ‚concerned about the
potential conflict of interest between [Maak] and class members
who might be subject to those counterclaims.‛ It concluded,
‚Those potential counterclaims are no longer speculative, were
not waived by IHC, and warrant decertification.‛
¶23 Finally, the district court addressed Maak’s proposed
amended class definition. It reasoned, ‚*T+he re-defined class
essentially asks the Court to adopt an adverse [inference] against
IHC, which is not appropriate, and in any event, the problem
remains that establishing causation and damages would still
require individualized adjudications to determine the facts of
each specific case.‛
¶24 The district court concluded that it had ‚no alternative
but to decertify the conditionally certified class‛ and to deny
Maak’s motion to amend the class definition. Maak appeals.
ISSUES AND STANDARDS OF REVIEW
¶25 Maak first contends that the district court erred as a
matter of law in holding that IHC had not waived its
counterclaims. ‚*W]hether the [district] court employed the
proper standard of [contractual] waiver presents a legal question
20140003-CA 11 2016 UT App 73Maak v. IHC Health Services
which is reviewed for correctness, but the actions or events
allegedly supporting waiver are factual in nature and should be
reviewed as factual determinations, to which we give a district
court deference.‛ Meadow Valley Contractors, Inc. v. Department of
Transp., 2011 UT 35, ¶ 13, 266 P.3d 671 (alterations in original)
(citation and internal quotation marks omitted).
¶26 Maak next contends that the district court abused its
discretion in granting IHC’s motion to decertify the class. The
district court’s decision to certify or decertify ‚a claim as a class
action is within the sound discretion of the district court.‛ Jaques
v. Midway Auto Plaza, Inc., 2010 UT 54, ¶ 12, 240 P.3d 769(citation and internal quotation marks omitted); see also Houghton
v. Department of Health, 2008 UT 86, ¶ 15, 206 P.3d 287. ‚A trial
court’s decision on class action status will be reversed only when
it is shown that the trial court misapplied the law or abused its
discretion.‛ Jaques, 2010 UT 54, ¶ 12 (citation and internal
quotation marks omitted); see also id. ¶ 35 (determining that a
district court did not abuse its discretion in finding that the party
had met one element of rule 23(a) of the Utah Rules of Civil
Procedure and holding ‚it is within the discretion of the *district+
court to decertify [a] class‛); Vallario v. Vandehey, 554 F.3d 1259,
1264 (10th Cir. 2009) (‚We review . . . the merits of *the district
court’s class certification+ determination for an abuse of
discretion.‛); In re Whirlpool Corp. Front-Loading Washer Prods.
Liab. Litig., 302 F.R.D. 448, 459 (N.D. Ohio 2014) (‚A district court
retains significant discretion to make decertification and
modification decisions and its decision is reviewed only for
abuse of discretion.‛ (citation and internal quotation marks
omitted)). The district court abuses its discretion when its
decision rests on an erroneous legal determination. See Schroeder
v. Utah Attorney General’s Office, 2015 UT 77, ¶ 49, 358 P.3d 1075(‚[L]egal errors, such as the incorrect interpretation of a statute
or the application of an improper legal standard, are usually an
abuse of discretion.‛).
20140003-CA 12 2016 UT App 73Maak v. IHC Health Services
¶27 Finally, Maak contends that the district court abused its
discretion in denying her motion to amend the class definition.
We review this decision for abuse of discretion. Jaques, 2010 UT
54, ¶ 12; see also Vallario, 554 F.3d at 1264.
ANALYSIS
¶28 Maak and IHC agree that we review the district court’s
class-decertification decision for abuse of discretion. They
disagree, however, over when a district court abuses that
discretion. There exists little Utah case law addressing motions
to decertify. Maak attempts to fill this void with cases from
outside of our jurisdiction; Maak argues that these cases suggest
that once a district court has certified a class, it has an obligation
to take all steps necessary to try to maintain the viability of that
class. See, e.g., Woe v. Cuomo, 729 F.2d 96, 107 (2d Cir. 1984) (‚*I+t
is an extreme step to dismiss a suit simply by decertifying a
class, where a ‘potentially proper class’ exists and can easily be
created.‛); Chisolm v. TransSouth Fin. Corp., 194 F.R.D. 538, 554
(E.D. Va. 2000) (‚Prior to decertification, the Court must consider
all options available to render the case manageable.‛). IHC
points to decisions highlighting the considerable discretion
afforded to district courts in managing class action litigation. See,
e.g., Shook v. Board of County Comm’rs of El Paso, 543 F.3d 597, 603
(10th Cir. 2008) (‚When applying an abuse of discretion standard
of review, we necessarily recognize that there may be no single
right answer to the question at hand, but a range of possible
outcomes sustainable on the law and facts, and we will defer to
the district court’s judgment so long as it falls within the realm
of these rationally available choices.‛ (citation and internal
quotation marks omitted)).
¶29 The Utah Supreme Court has explained that ‚*o]ne reason
. . . district courts are allowed such broad discretion is that rule
23(c)(1) of the Utah Rules of Civil Procedure grants the district
court the ability to alter or amend the order of class certification
20140003-CA 13 2016 UT App 73Maak v. IHC Health Services
before the decision on the merits.‛ Jaques, 2010 UT 54, ¶ 35. The
court reasoned, ‚[I]f it becomes necessary, the class action may
be amended to contain subclasses to meet the factual pattern of
the case.‛6 Id. And ‚if it is found by the district court that the
individual transactions of the class members are too varied to be
categorized into subclasses, it is within the discretion of the
[district] court to decertify the class.‛ Id. Nothing in the supreme
court’s analysis of rule 23 supports the hard-and-fast rule Maak
advocates—that a district court must take all steps necessary to
preserve the class action. Indeed, the plain language of rule 23
provides that a case ‚may be maintained as a class action‛ if the
court finds that the plaintiff has satisfied certain requirements.
Utah R. Civ. P. 23(a)–(b) (emphasis added). Likewise, the
supreme court has consistently referred to what the court may do
and not what it shall do in response to challenges to class
certification or composition. See Jaques, 2010 UT 54, ¶ 35; see also
Richardson v. Arizona Fuels Corp., 614 P.2d 636, 639 (Utah 1980)
(‚If the criteria of Rule 23 are complied with, it is within the
sound discretion of the district court to determine whether a
suit, or some of the issues in a lawsuit, should proceed as a class
action.‛).
¶30 The breadth of that discretion does not, however, mean
that the district court can deny a motion to certify without
carefully considering the motion and setting forth the reasons
underlying the exercise of its discretion. See Richardson, 614 P.2d
at 639 (‚It is the duty of the district court to apply carefully the
criteria set forth in Rule 23(a) and (b) to the facts of the case to
6. Utah Rule of Civil Procedure 23(c)(4) provides, ‚When
appropriate (A) an action may be brought or maintained as a
class action with respect to particular issues, or (B) a class may
be divided into subclasses and each subclass treated as a class,
and the provisions of this rule shall then be construed and
applied accordingly.‛ Utah R. Civ. P. 23(c)(4).
20140003-CA 14 2016 UT App 73Maak v. IHC Health Services
determine whether an action may be maintained as a class
action.‛); see also Wallace B. Roderick Revocable Living Tr. v. XTO
Energy, Inc., 725 F.3d 1213, 1217 (10th Cir. 2013) (‚*T+he district
court has an independent obligation to conduct a ‘rigorous
analysis’ before concluding that Rule 23’s requirements have
been satisfied.‛ (citation omitted)). The district court must also
create an order sufficient to allow a reviewing court to
understand the basis of its reasoning before the reviewing court
can afford deference to the district court’s decision. See
Richardson, 614 P.2d at 639 (holding, among other things, that the
district court committed reversible error by certifying a class
action when ‚neither the memorandum decision nor the order of
the district court does any more than recite that the suit may be
maintained as a class action‛); see also Vega v. T-Mobile USA, Inc.,
564 F.3d 1256, 1275–80 (11th Cir. 2009) (holding that the district
court abused its discretion by failing to conduct a sufficient
typicality and superiority analysis of the class certified by the
court, and criticizing the court’s failure to ‚even attempt to
describe whether and how [the representative party’s+ claims are
typical of the remaining class that *the court+ actually certified‛);
In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 321–23, 327
(3d Cir. 2008) (vacating the district court’s class-certification
order and remanding for further proceedings because, among
other things, the court failed to undertake a sufficient analysis);
State ex rel. Chemtall Inc. v. Madden, 607 S.E.2d 772, 782–83 (W.
Va. 2004) (concluding that a circuit court committed reversible
error by failing to provide sufficient analysis and factual
findings to support its class-certification decision).
¶31 The same considerations apply to a class-decertification
motion. A district court must carefully analyze whether the
certified class continues to meet rule 23’s requirements.
Richardson, 614 P.2d at 639. The rigorous analysis demanded by
rule 23 requires the district court to ‚do more than offer brief
and conclusory statements establishing the Rule 23
prerequisites.‛ See Slaven v. BP Am., Inc., 190 F.R.D. 649, 651
20140003-CA 15 2016 UT App 73Maak v. IHC Health Services
(C.D. Cal. 2000). Rather a district court ‚must offer written
reasons supporting its decision to maintain class certification, or,
alternatively, to decertify the action.‛ Id.
¶32 Indeed, the need for a thorough explanation of the district
court’s reasoning becomes even more pronounced on a motion
to decertify because the district court does not write on a blank
slate. ‚Once a class is certified, the parties can be expected to rely
on it and conduct discovery, prepare for trial, and engage in
settlement discussions on the assumption that in the normal
course of events it will not be altered except for good cause.‛
O'Connor v. Boeing N. Am., Inc., 197 F.R.D. 404, 409–10 (C.D. Cal.
2000) (citation and internal quotation marks omitted). This
reliance entitles the parties to a careful analysis of the rule 23
requirements and a reasoned explanation of why the case can no
longer be maintained as a class action. Moreover, a reviewing
court needs the benefit of the district court’s analysis to evaluate
whether the court has properly exercised its discretion.
¶33 In the context of a motion to amend the class definition,
rule 23 explicitly recognizes that a class-certification order ‚may
be altered or amended before the decision on the merits.‛ Utah
R. Civ. P. 23(c)(1). Although we find no support in Utah law for
Maak’s argument that the district court must take all steps
necessary to preserve a certified class, our rules of civil
procedure and supreme court case law permit the district court
to consider whether the original class should be divided into
subclasses. See Utah R. Civ. P. 23(c)(4); Jaques v. Midway Auto
Plaza, Inc., 2010 UT 54, ¶ 35, 240 P.3d 769. Further, when
presented with a motion to amend a class, the district court must
carefully analyze the proposed amended class under rule 23’s
requirements and clearly articulate its reasoning as to why the
amended class either would or would not satisfy rule 23. See
Richardson, 614 P.2d at 639; see also In re Motor Fuel Temperature
Sales Practices Litig., 279 F.R.D. 598, 603–05 (D. Kan. 2012)
(reviewing a motion to amend a class by comparing the then-
20140003-CA 16 2016 UT App 73Maak v. IHC Health Services
current class definition with the plaintiff’s proposed class
definition).
I. IHC’s Counterclaims Against Class Members
¶34 Against this backdrop, we examine whether the district
court properly exercised its discretion in decertifying the class.
Among Maak’s many arguments aimed at demonstrating that
the district court abused its discretion, she contends that the
court improperly relied on the purported difficulties IHC’s
counterclaims presented for class treatment.
¶35 Maak correctly asserts that IHC’s counterclaims played a
role in the district court’s decision to decertify the class. IHC’s
counterclaims are, in essence, its attempt to collect the full
amount of a patient’s itemized charges in those instances where
its agreement with an insurer led it to collect less than the
patient’s full itemized charge for the applicable medical
procedures. See supra ¶¶ 3–5. The district court concluded that
‚with thousands of people identified in the Tier 2 analysis
subject to counterclaims that might involve widely varying
degrees of damages, there can be no uniform alignment of
interests, and no ability to generalize causation, injury, and
liability.‛ The court was also concerned with the counterclaims’
potential to create a conflict of interest between Maak and other
class members who may or may not be subject to suit based on
the counterclaims.
¶36 Maak argues that the district court abused its discretion in
considering the counterclaims as part of its decertification
calculus because IHC had waived its counterclaims as a matter
of law. We cannot determine on the record before us whether the
district court correctly concluded that IHC had viable
counterclaims that it had not waived.
¶37 ‚Waiver is an intentional relinquishment of a known
right.‛ Meadow Valley Contractors, Inc. v. Department of Transp.,
20140003-CA 17 2016 UT App 73Maak v. IHC Health Services
2011 UT 35, ¶ 45, 266 P.3d 671 (citation and internal quotation
marks omitted). ‚Waiver of a contractual right occurs when a
party to a contract intentionally acts in a manner inconsistent
with its contractual rights, and, as a result, prejudice accrues to
the opposing party or parties to the contract.‛ Id. (citation and
internal quotation marks omitted). ‚Waiver can be implied from
conduct, such as making payments or accepting performance
which does not comport with contractual requirements.‛
Anderson v. Brinkerhoff, 756 P.2d 95, 98 (Utah Ct. App. 1988). For
conduct to amount to an implied waiver of a contractual right, it
must be intentional, Meadow Valley, 2011 UT 35, ¶ 45, and must
be done ‚in a manner that is unambiguous,‛ McCleve Props., LLC
v. D. Ray Hult Family Ltd. P’ship, 2013 UT App 185, ¶ 10, 307 P.3d
650 (citation and internal quotation marks omitted).
¶38 In the context of assessing whether a party has waived its
rights under a contract, the supreme court has held that ‚each
party has the burden to read and understand the terms of a
contract before he or she affixes his or her signature to it.‛ ASC
Utah, Inc. v. Wolf Mountain Resorts, L.C., 2010 UT 65, ¶ 28, 245
P.3d 184 (citation and internal quotation marks omitted).
‚*S+ophisticated business parties are charged with knowledge of
the terms of the contracts that they enter into.‛ Id. Such parties to
a contract are ‚‘not permitted to show that [they] did not know
[a contract’s] terms, and in the absence of fraud or mistake [they]
will be bound by all its provisions, even [if they have] not read
the agreement and do not know its contents.’‛ McCleve, 2013 UT
App 185, ¶ 12 (alterations in original) (quoting ASC Utah, Inc.,
2010 UT 65, ¶ 28). Thus, a ‚party may not sign a contract and
thereafter assert ignorance or failure to read the contract as a
defense.‛ See John Call Eng’g, Inc. v. Manti City Corp., 743 P.2d
1205, 1208 (Utah 1987); see also McCleve, 2013 UT App 185, ¶ 12.
Where a contract provides a discernible right and the party
intentionally acts inconsistently with that right, the party may
not later feign ignorance to avoid the waiver of that right. See
McCleve, 2013 UT App 185, ¶¶ 12–13.
20140003-CA 18 2016 UT App 73Maak v. IHC Health Services
¶39 Maak points to IHC’s admission, ‚When we enter into
those arrangements with the insurance plan, we’ve agreed to
make an adjustment on the patient account and only hold the
patient responsible for the deductible co-insurance or co-pay
that’s determined by their plan benefit.‛ Maak also highlights
IHC’s statement that ‚if the DRG payment was less than the
itemized charges, and the patient’s payment still didn’t make up
to the itemized charges, [the remaining amount due] would
show as a credit.‛ Thus, ‚[w]hen the sum of the insurer’s DRG
payment and the patient’s payments *was+ still less than the
itemized charges,‛ IHC would amend the bill to ‚show*+ a
current balance of zero‛ so long as the patient paid his or her co-
payment or obligation under the contract with his or her
insurance company.
¶40 Maak also argues that IHC’s right to collect the shortfall
amounts—the basis of its counterclaims—‚did not suddenly
spring into existence‛ with our statement in Maak v. IHC Health
Services, Inc., 2007 UT App 244, 166 P.3d 631, that ‚when a health
care provider has not been fully paid for its services, it can
collect the difference from a patient pursuant to its contract with
the patient.‛ See id. ¶ 28. She contends that our statement was a
mere recognition of existing law, not the creation of a new legal
right, and thus, IHC had a right ‚to collect the shortfall
amounts . . . at the time *it+ billed the patients.‛
¶41 Finally, Maak asks us to infer that ‚until filing the
counterclaims,‛ ‚IHC had no intention of collecting any shortfall
amounts‛ because it would, of its own accord, change an
otherwise unfulfilled charge to a balance of zero, and because
IHC’s own witness admitted that he could not recall any time
where ‚IHC *had+ ever attempted to collect [the unpaid
amounts] from any patient whose insurer paid under the DRG
reimbursement method.‛
20140003-CA 19 2016 UT App 73Maak v. IHC Health Services
¶42 Maak concludes, ‚*The undisputed facts+ demonstrate
that IHC intentionally and unequivocally waived its purported
counterclaims against any and all members of the Class by
‘accepting performance *that did+ not comport with contractual
requirements [of its Patient Agreement].’‛ (Second and third
alterations in original.) (Quoting Anderson, 756 P.2d at 98.)
¶43 IHC responds that its right to pursue the counterclaims
did not exist until our prior decision in this matter. It insists that
our 2007 ruling ‚changed the legal landscape and altered the
understanding‛ of its contractual agreements and ‚*o+nly then
did [it] know it had an independent right to collect shortfall[s]
‘pursuant to its contract with the patient.’‛ (Citation omitted.)
IHC also disputes Maak’s characterization of its counterclaims.
IHC argues, based on the many individual reimbursement
agreements, that ‚individual adjudication is required for each
class member to determine whether the waiver defense Maak
raises applies.‛7 Finally, IHC contends that Maak incorrectly
assumes that, in its reimbursement agreements with insurers
other than Regence, IHC limited its ability to collect more than
the patients’ deductible or coinsurance obligation determined by
their benefit plan. IHC contends that because ‚Maak has no
evidence‛ that all insurer agreements are similar to Regence’s,
she cannot establish that IHC waived its right to collect the
shortfall amounts against the class.
¶44 The district court appears not to have explicitly ruled on
Maak’s motion for summary judgment on IHC’s counterclaims.
Instead, the district court, in its final order granting
decertification of the class, ruled that IHC’s counterclaims ‚are
7. IHC does not elucidate its argument that a waiver
determination would need to be made for each individual class
member. Nor does the district court’s order analyze why waiver
could not be adjudicated on a class-wide basis.
20140003-CA 20 2016 UT App 73Maak v. IHC Health Services
no longer speculative, were not waived by IHC, and warrant
decertification.‛ That sentence, together with a recognition that
Maak’s interests might conflict with other class members due to
the counterclaims, constitutes the district court’s entire factual
and analytical discussion of whether IHC had waived its
counterclaims and how the presence of those claims impacted
the rule 23 factors.
¶45 The district court’s order does not provide us any insight
into why it concluded the counterclaims had not been waived,
nor does it indicate what record evidence supports its
determination. ‚Failure of the [district] court to make findings
on all material issues is reversible error.‛ Hill v. Estate of Allred,
2009 UT 28, ¶ 59, 216 P.3d 929 (citation and internal quotation
marks omitted); see also Tillotson v. Meerkerk, 2015 UT App 142,
¶ 14, 353 P.3d 165 (vacating the district court’s denial of a motion
to intervene and remanding the case because neither the district
court’s ‚order nor the minute entry provides any explicit
findings or articulates any basis for the district court’s denial of
the motion,‛ and thus the appellate court could not ‚ascertain
the basis of the [district] court’s decision‛ (citation and internal
quotation marks omitted)). ‚[W]here the inadequacy of the trial
court’s findings of fact and conclusions of law results in our
inability to ascertain the basis of the [district] court’s decision,
[we are] prevented from effectively reviewing the [district]
court’s decision and may remand for the entry of more-detailed
findings.‛ Allen v. Ciokewicz, 2012 UT App 162, ¶ 42, 280 P.3d 425(third alteration in original) (citation and internal quotation
marks omitted).
¶46 Without insight into the district court’s reasoning, ‚we are
unable to ascertain whether the *district+ court’s Order follows
logically from, and is supported by, the evidence.‛ See Interstate
Income Props., Inc. v. La Jolla Loans, Inc., 2011 UT App 188, ¶ 14,
257 P.3d 1073 (citation and internal quotation marks omitted).
Accordingly, we vacate the district court’s ruling with respect to
20140003-CA 21 2016 UT App 73Maak v. IHC Health Services
the waiver of IHC’s counterclaims and remand to the district
court to determine the issue anew and to provide the written
analysis necessary to ensure that its legal conclusion flows
logically from, and is supported by, the record evidence.
II. The District Court’s Decertification of the Class
A. Rule 23’s Class Certification Requirements
¶47 Maak contends that the district court abused its discretion
in decertifying the class because ‚this action presents a
quintessential case for class-action adjudication‛—a resolved
legal question imposing liability in a variety of similar factual
scenarios.
¶48 Rule 23 of the Utah Rules of Civil Procedure sets forth the
criteria for the certification of a class action suit. A class may be
certified under rule 23 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, and (4) the
representative parties will fairly and adequately
protect the interests of the class.
Utah R. Civ. P. 23(a). ‚These four criteria are respectively
referred to as (1) numerosity, (2) commonality, (3) typicality, and
(4) adequacy of representation.‛ Jaques v. Midway Auto Plaza, Inc.,
2010 UT 54, ¶ 23, 240 P.3d 769. Further, to maintain a class
action, the case must ‚fall[] into one of the three categories found
in rule 23(b).‛ Id. ¶ 24. Applicable here, to maintain a class action
the court must determine that ‚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
20140003-CA 22 2016 UT App 73Maak v. IHC Health Services
adjudication of the controversy.‛ Utah R. Civ. P. 23(b)(3). These
two concepts, enunciated in rule 23(b)(3), are referred to as
predominance and superiority, respectively. See Jaques, 2010 UT
54, ¶ 24.
B. The District Court’s Order Granting IHC’s Motion to
Decertify the Class
¶49 The district court concluded that, as a result of ‚the
parties’ extensive discovery efforts,‛ the class no longer satisfied
the requirements of commonality, typicality, predominance,
adequacy of representation, and superiority under rule 23 of the
Utah Rules of Civil Procedure. The court found that the
contractual agreements governing many of the class members’
claims were ‚materially different from *Maak’s+,‛ that ‚most
overbillings *were+ not in a context similar to *Maak’s+,‛ and that
identifying class members would require ‚individualized
adjudications.‛ Thus the court concluded that the claims of the
current class did not satisfy rule 23’s class certification
requirements.
¶50 As part of its determination, the district court reasoned
that IHC’s counterclaims weighed in favor of decertifying the
class:
[W]ith thousands of people identified in the Tier 2
analysis subject to counterclaims that might
involve widely varying degrees of damages, there
can be no uniform alignment of interests, and no
ability to generalize causation, injury, and liability.
Additionally, given the pendency of what are now
clearly significant counterclaims, the Court is
concerned about the potential conflict of interest
between [Maak] and class members who might be
subject to those counterclaims. Those potential
counterclaims . . . warrant decertification.
20140003-CA 23 2016 UT App 73Maak v. IHC Health Services
¶51 Because we have determined that the district court must
revisit its holding with respect to IHC’s counterclaims, and
because the district court relied upon the viability of IHC’s
counterclaims in its decision to grant IHC’s motion to decertify
the class, we vacate the district court’s grant of that motion. We
decline to substantively review the district court’s decertification
decision because it may be affected by the district court’s
decision on remand. If the court determines on remand that
IHC’s counterclaims are, in fact, waived, then it should conduct
a new decertification analysis without regard to IHC’s
counterclaims. If the court concludes that IHC has not waived its
counterclaims, the district court should specifically address how
the presence of those counterclaims affects the rule 23 analysis.8
8. Maak challenges several other aspects of the district court’s
decertification decision. For example, Maak also argues that the
district court erred by allowing IHC to benefit from the missing
EOBs. IHC argues that if EOBs were available, they would show
that a number of class members do not qualify for class
membership. IHC also argues that by asking that patients
without EOBs be included in the class, Maak essentially asked
the district court to adopt an inference adverse to IHC—an
inference that IHC argues is unwarranted because IHC could not
have known that it needed to preserve the EOBs. Maak contends
that she did not ask the district court to sanction IHC based
upon its alleged spoliation of evidence, only that IHC not be
permitted to enjoy a positive inference from the missing
evidence. See generally Ockey v. Club Jam, 2014 UT App 126, ¶ 11,
328 P.3d 880 (acknowledging that Utah Rule of Civil Procedure
37 affords district courts broad discretion ‚to determine if a
party’s *spoliation of evidence+ justifies the imposition of
sanctions and, if so, which sanction is appropriate to the
circumstances‛). The district court appears to have not expressly
(continued…)
20140003-CA 24 2016 UT App 73Maak v. IHC Health Services
¶52 Because the issue may arise on remand, we also address
Maak’s argument that, even if IHC did not waive its
counterclaims, the district court incorrectly determined that it
had ‚no alternative‛ but to decertify in the face of IHC’s
counterclaims. See Buford v. H & R Block, Inc., 168 F.R.D. 340, 363–
64 (S.D. Ga. 1996) (recognizing that courts handle counterclaim
issues ‚differently‛ in the class action context, such as by
severing class members or by prosecuting claims separately, but
recognizing that permissive counterclaims, ‚by themselves, will
not defeat certification‛); Walczak v. Onyx Acceptance Corp., 850
N.E.2d 357, 371 (Ill. App. Ct. 2006) (concluding that ‚generally,
individual counterclaims or defenses do not render a case
unsuitable for class action‛ because counterclaims only reduce
damages awards and do not affect the underlying finding of
liability). Maak notes that courts around the country have
adopted procedures to permit class actions to proceed despite
the assertion of counterclaims against class members. See, e.g.,
Roper v. Consurve, Inc., 578 F.2d 1106, 1116 (5th Cir. 1978)
(directing that counterclaims against a class may be managed by
‚adopting standards and classifying the claims,‛ such as
(…continued)
addressed the issue, other than to state in the decertification
order that ‚the re-defined class essentially asks the Court to
adopt an adverse [inference] against IHC, which is not
appropriate.‛ Because of the factual issues to be resolved with
respect to IHC’s destruction of the EOBs, and the district court’s
broad discretion to craft appropriate remedies for spoliation,
these arguments are best resolved by the district court in the first
instance. Remand will permit Maak to renew her arguments
with respect to spoliation and the other errors she argues on
appeal and permit the district court to address them in the
context of the other decisions before it on remand. Remand will
also provide the district court an opportunity to fully explain the
basis for its decisions.
20140003-CA 25 2016 UT App 73Maak v. IHC Health Services
‚excluding counter-claim defendants from the plaintiff class or
separating and severing the class into two different classes, one
with counter-claims and one without counter-claims‛); Partain v.
First Nat. Bank of Montgomery, 59 F.R.D. 56, 59 (M.D. Ala. 1973)
(concluding that it is appropriate for a district court to ‚exercise
its discretion under Rule 23 [of the Federal Rules of Civil
Procedure] to define the scope of the class by deleting from the
proposed class all those persons‛ subject to counterclaim
liability).
¶53 Utah law does not require a district court to sua sponte
consider all options that it could employ to salvage a
problematic class definition. We conclude, however, that when a
party specifically proposes a mechanism to ameliorate concerns
with class treatment, the district court must undertake a rigorous
analysis and explain the basis for its decision to reject the
proposed approach and to instead decertify the class.
Accordingly, if the district court concludes that IHC has not
waived its counterclaims and that such counterclaims cause the
proposed class to fall short of rule 23’s strictures, the district
court should specifically analyze any proposal Maak presents to
address the proposed counterclaims. This is not to suggest that
the district court must adopt any such proposal, only that it may
not, without consideration and analysis, reject an attempt to
salvage a class.
¶54 Accordingly, we vacate the district court’s order
decertifying the class and remand the issue for reconsideration.
III. Maak’s Motion to Amend the Class Definition
¶55 Maak also contends that the district court abused its
discretion in denying her motion to amend the class definition.
Maak argues that a proper class exists and that her amended
class definition satisfies the elements of rule 23 of the Utah Rules
of Civil Procedure. See Utah R. Civ. P. 23(a)–(b).
20140003-CA 26 2016 UT App 73Maak v. IHC Health Services
¶56 The district court determined,
[A]lthough [Maak] has proposed a new class
definition, the re-defined class essentially asks the
Court to adopt an adverse [inference] against IHC,
which is not appropriate, and in any event, the
problem remains that establishing causation and
damages would still require individualized
adjudications to determine the facts of each specific
case. The Court has no alternative but to decertify
the conditionally certified class.
Maak argues that this decision constitutes an abuse of discretion
because ‚a proper class of some size exists.‛ Maak also argues
that ‚*i+n a great number of cases‛ the relevant documents exist
sufficient to establish ‚that the contractual adjustment at issue
must have been made as a result of the billing policies
[determined to be] in breach of Maak’s Patient Agreement.‛
Thus, she argues, class action status is proper for some portion of
the initial class, ‚even if it is smaller than the class as originally
certified or the proposed amended Class that was the focus of
Maak’s Motion to Amend.‛9
9. It bears noting that on remand, Maak cannot simply argue that
a proper class of some size must exist and ask the district court
to establish the boundaries of that hypothetical class. See Utah R.
Civ. P. 23(b) (setting out that an action may be maintained as a
class if the plaintiff satisfies the prerequisites to a class action in
rule 23(a) and (b)); Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir.
1993) (holding that rule 23 of the Federal Rules of Civil
Procedure ‚requires a potential class representative‛ to establish
that the class satisfies each of the rule’s elements); Nelson v. Wal-
Mart Stores, Inc., 245 F.R.D. 358, 372 (E.D. Ark. 2007) (same);
Lewis v. First Am. Title Ins. Co., 265 F.R.D. 536, 546 (D. Idaho
(continued…)
20140003-CA 27 2016 UT App 73Maak v. IHC Health Services
¶57 The record before us does not permit us to evaluate the
merits of Maak’s arguments. The district court’s order simply
concludes that with Maak’s proposed amended class,
‚establishing causation and damages would still require
individualized adjudications‛ and would require ‚the Court to
adopt an adverse [inference] against IHC.‛ The district court’s
order does not explain why the narrower class Maak proposed
would require individualized determinations that would either
prevent common issues from predominating or prevent class-
action treatment from being a superior method of resolving this
dispute. Without application of the rule 23 factors to the
amended class Maak proposed, we cannot determine if the
district court properly exercised its discretion. See Richardson v.
Arizona Fuels Corp., 614 P.2d 636, 639 (Utah 1980) (holding that
the district court erred by insufficiently analyzing the class
action certification requirements in rule 23); cf. Pipefitters Local
636 Ins. Fund v. Blue Cross Blue Shield of Mich., 654 F.3d 618, 630
(6th Cir. 2011) (highlighting the need for ‚‘rigorous analysis’ by
the district court as to all the requirements‛ of rule 23 of the
Federal Rules of Civil Procedure due to the ‚huge amount of
judicial resources expended by class actions‛ and concluding
that the ‚absence of analysis‛ is reversible error); Ex parte Am.
Bankers Life Assurance Co. of Fl., 715 So. 2d 186, 190–91 (Ala. 1997)
(requiring the district court to ‚identify each of the four
elements‛ of Alabama’s class-certification rule and requiring that
its analysis ‚not simply parrot the language of Rule 23(a) [of the
(…continued)
2010) (‚The party seeking certification bears the burden of
showing that each of the four requirements in Rule 23(a) are met
and one of the conditions in Rule 23(b) is met.‛). The district
court is not required to play the role of Goldilocks and test the
universe of potential classes until it finds one that is ‚just right.‛
The party seeking an amendment of the class should propose a
class definition for the court to analyze.
20140003-CA 28 2016 UT App 73Maak v. IHC Health Services
Alabama Rules of Civil Procedure] but [instead] provide a
written rigorous analysis of each element and explain how the
proponents of class certification have met their burden of
proving these elements‛).
¶58 We therefore vacate the district court’s order denying
Maak’s motion to amend the class definition and remand for
further consideration. On remand, the court should review the
dimensions of Maak’s amended class definition to determine
specifically whether it satisfies the class certification
requirements of rule 23 of the Utah Rules of Civil Procedure. The
court should undertake the rigorous analysis rule 23 demands,
and its written order should specifically analyze why Maak’s
amended class definition either does or does not meet each
element of rule 23. See Richardson, 614 P.2d at 639.10
CONCLUSION
¶59 We vacate the district court’s order granting IHC’s motion
to decertify the class and denying Maak’s motion to amend the
class definition. We remand the case for (1) a redetermination of
Maak’s argument that IHC has waived its counterclaims to allow
the court to provide a developed explanation of its reasoning,
(2) a new consideration of IHC’s motion to decertify the class to
10. In vacating the district court’s order denying Maak’s motion
to amend the class definition and remanding the case, we do not
foreclose the district court’s ability, under the Utah Rules of Civil
Procedure, to address any procedural, or other, issues that may
arise or to set a course of proceedings for the case. See Utah R.
Civ. P. 23(d) (providing that the district court may, among other
things, ‚impos*e+ conditions on the representative parties‛ and
‚determin*e+ the course of proceedings or *prescribe+ measures
to prevent undue repetition or complication in the presentation
of evidence or argument‛).
20140003-CA 29 2016 UT App 73Maak v. IHC Health Services
permit the district court to revisit that order in light of its
resolution of the issue of the continuing viability of IHC’s
counterclaims and any other issues that may arise on remand,
and (3) further consideration of Maak’s motion to amend the
class definition to permit the district court to perform the
rigorous analysis that rule 23 of the Utah Rules of Civil
Procedure demands.
20140003-CA 30 2016 UT App 73