The opinion
REIF, J.,
specially concurring:
¶ 1 This case is on appeal for review of the trial court’s order allowing plaintiffs case to proceed as a class action. In the course of addressing the statutory requirements to support certifying this case as a class action, the trial court discussed the underlying claim and theories of recovery. This discussion placed this court in a position to likewise review the underlying claim and theories of recovery. While review of the merits of a case is not normally considered in making the class certification decision, the instant case is certainly one where the class action “cart” should not be placed before the “horse” of the underlying claim.
¶ 2 It is well settled that “determining whether the trial court applied the correct legal standards when it assessed [the existence of] commonality, predominance and *259 typicality requirements for class certification necessitates identification and review of the core liability issues which the class asserts.” Scoufos v. State Farm Fire and Casualty Co., 2001 OK 113, ¶ 1 , 41 P.3d 366, 367 . An appellate court “review[s] de novo whether the trial court applied the correct legal standard to grant certification [and where] the trial court incorrectly decided a question of law in certifying the class, reversal will be ordered.” Id.
¶ 3 Plaintiff endeavors to make various legal wrongs out of a 50<t “insurance fee” that was charged by defendant seller in connection with a direct order and shipment delivery of merchandise. Plaintiff asserts that the customer who pays this insurance fee has no risk of loss to insure and that the seller herein did not use the 50$ fee to purchase insurance for the seller’s risk of loss. The seller has explained that it self-insures the risk of loss imposed on it by the Uniform Commercial Code and that the 50$ fee defers the cost of its self-insurance to immediately replace lost or damaged goods. Plaintiff dismisses this explanation by asserting that replacement costs are a cost of doing business that should be reflected in the price, and not in a deceptive fee for which a buyer receives no value in return. While the plaintiffs opinion of cost allocation and pricing is no doubt worthy of respect, it does not rise to the level of a legal standard upon which to base a legal wrong.
¶ 4 Even though the Uniform Commercial Code places the risk of loss on the seller, the UCC does not place the risk of loss on the seller cost free. While including replacement costs in the price of the merchandise is certainly one way in which a seller can cover the costs associated with this risk of loss, it is not the only way a seller may do so. More importantly, this is not mandated by the UCC. Nothing in the UCC or any other provision of law expressly prohibits a seller from covering the cost of this risk by self-insurance. There is simply no legal wrong in charging a fee to cover the costs associated with a risk of loss imposed by the UCC.
¶ 5 There is likewise no legal wrong in calling it an “insurance fee.” Seller made no promise to purchase insurance with the fee it was charging. The disclosed purpose of the fee was for the immediate replacement of damaged or lost-merchandise. Considering the fact the UCC does not require the immediate replacement of damaged or lost merchandise, the buyer does indeed receive a valuable promise in return for the fee. Finally, there is no indication that replacements have not been “immediate” so as to make the “insurance fee” a false/fraudulent charge.
¶ 6 In a few words, this class action suit is not supported by a legally cognizable theory of liability. The decision that the “insurance fee” in question is an economic burden that consumers should not bear in doing business with the seller (and others like the seller) is one that should be made in the market place and not in the courthouse.