Arkansas Blue Cross and Blue Shield v. Freeway Surgery Center

2025 Ark. 12

• Court: Supreme Court of Arkansas
• Decided: February 27, 2025
• Status: Published

Opinion

Cite as 2025 Ark. 12 SUPREME COURT OF ARKANSAS No. CV-22-515

Opinion Delivered: February 27, 2025 ARKANSAS BLUE CROSS AND BLUE SHIELD CONCURRING OPINION ON APPELLANT DENIAL OF PETITION FOR REVIEW. V.

FREEWAY SURGERY CENTER ET AL. APPELLEES

NICHOLAS J. BRONNI, Associate Justice

I agree with the decision to deny the petition for review here because—as the court

of appeals ultimately held—Section 115 doesn’t apply to network agreements. That’s clear

from the statutory text, and it’s not a close call. But I write separately to note that my

concurrence doesn’t represent an endorsement of the lower court’s method of statutory

interpretation or language in this Court’s case law that would seem to endorse it.

In short, Section 115’s language and overall structure underscores that provision

governs “polic[ies], contract[s], plan[s], or agreement[s]” between “the person entitled to

payment or reimbursement”—that is, the insured—and the insurer. Ark. Code Ann. § 23-

79-115(a)(1). It says nothing about contracts or agreements between providers and insurers.

So that provision doesn’t apply here, and that should have been the end of the analysis.

Yet the court of appeals’ analysis didn’t stop there. Instead, taking its cue from this

Court’s repeated—but erroneous—assertion that the first principle of statutory interpretation is to divine legislative intent, the court of appeals turned to legislative history.

The court of appeals then held that because network agreements weren’t permitted in 1977,

a network agreement isn’t an agreement as that term is used in Section 115. And as such,

the court of appeals held, they aren’t covered by the statute. To be sure, what a word means

at the time of enactment is important. Wisconsin Cent. Ltd v. United States, 585 U.S. 274,

284, (2018) (“[I]t’s a fundamental canon of statutory construction that words generally

should be “interpreted as taking their ordinary, contemporary, common meaning . . . at the

time Congress enacted the statute.”) (internal quotation marks omitted). But in focusing

on the legal environment in 1977, the court of appeals ignored the General Assembly’s

subsequent decision to permit network agreements and did not consider whether those now

permissible agreements are agreements. Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts, 89–90 (2012) (explaining that while the definition of a word

in a statute is fixed, subsequent laws may alter the things or people that fall into that fixed

definition).

That approach was mistaken, and the following example illustrates why. Suppose a

statute provides that “an agricultural inspector shall inspect strawberries, bananas, pineapples,

and all other fruits in grocery stores for insects.” At the time of the statute’s passage, grocery

stores aren’t permitted to sell dragon fruits. Analyzing the statute ten years later when

dragon fruits have now become legal, it would be erroneous for a court to say that inspectors

need not search dragon fruits for insects because their sale wasn’t permissible at the time of

enactment. The hypothetical statute clearly covers all other “fruits.” Indeed, to put it

simply, fruit remains fruit—whether it was illegal when the statute was passed or not.

2 The same is true here. Network agreements are still agreements whether the year is

1977 or 2025. Therefore, the court of appeals’ reliance on their impermissibility in 1977 is

irrelevant. Instead, it should have focused on whether network agreements fall into the

types of agreements covered by Section 115’s text. Because the court of appeals didn’t do

that analysis, I cannot endorse its method of statutory interpretation.

WOMACK, J., joins.