Code of Massachusetts Regulations › 211 CMR - DIVISION OF INSURANCE › Title 211 CMR 101.00 - Procedures Concerning Rate Filings Made Pursuant To Mgl C.175c And The Conduct Of Hearings On Such Filings › Section 101.09 - Conduct of the Proceeding

Current through Register 1525, July 5, 2024
(1)
Presiding Officer
. The Presiding Officer, in
			 conducting the Proceeding, may administer oaths and affirmations, and shall
			 make all rulings and orders concerning the admission or exclusion of evidence
			 and testimony and on any other procedural matters that arise in the course of
			 the Proceeding. The Presiding Officer may shorten or terminate any phase of the
			 Proceeding for a Party's failure, without good cause, to comply with the
			 schedule or to proceed with expedition. The Presiding Officer may grant an
			 extension of time or allow a Party's motion for an extension of time if he or
			 she determines that an extension is appropriate. The Presiding Officer may
			 impose sanctions on a Party that does not comply with a ruling or order issued
			 in a Proceeding. Such sanction may include entering orders or rulings on one or
			 more issues, limiting the introduction of evidence or a Party's participation
			 in a proceeding and addressing other matters as he or she deems
			 appropriate.
(2)
Ex Parte
Communications
. From the start of a Proceeding under
			 211 CMR 101.00 until the
			 rendering of a final decision, no person who is not employed by the Division
			 shall communicate
ex parte
with respect to the merits of the
			 Proceeding with the Commissioner, the Presiding Officer, or any Division
			 employee involved in the decision process for the Proceeding in question. A
			 request for a report concerning the status of a Proceeding, an inquiry about
			 the Division's practice or procedure, and State Rating Bureau communications
			 with any other Party shall not be considered
ex parte
communications. If the Presiding Officer determines that a party has violated
			 211 CMR 101.09, the Presiding Officer may exclude such Party from the hearing
			 or decide against that Party with prejudice. If the Presiding Officer
			 determines that a person not a Party has violated 211 CMR 101.09, the Presiding
			 Officer may exclude that person from the Proceeding.
(3)
Oral Statements
.
			 Oral Statements generally will be heard at the commencement of an initial
			 hearing, but the Presiding Officer may, in his or her discretion, permit Oral
			 Statements later in the course of a Proceeding. Persons making Oral Statements
			 shall not be sworn as witnesses. The Presiding Officer may specify the amount
			 of time allowed to any person making an Oral Statement and, if the Presiding
			 Officer determines that an Oral Statement is irrelevant, immaterial or unduly
			 repetitious, may further restrict the time allowed.
(4)
Motions
. A Party
			 may, by motion, request a ruling from the Presiding Officer. The motion shall
			 state the ruling sought and the grounds therefor. The Presiding Officer may
			 require a Party to submit a motion in writing and may, in his or her
			 discretion, hear oral argument on a motion before making a ruling
			 thereon.
(5)
Official
			 Notice
. The Presiding Officer may take official notice of any fact
			 which may be judicially noticed by the courts of this Commonwealth and, in
			 addition, may take official notice of general, technical or scientific facts
			 within his or her specialized knowledge; provided that the Presiding Officer
			 shall notify all Parties of the material so noticed and shall, upon timely
			 request, permit any Party to contest the facts so noticed. The Presiding
			 Officer may utilize his or her technical experience, technical competence, and
			 specialized knowledge in the evaluation of the evidence presented. A Party
			 requesting that the Presiding Officer take official notice of facts or material
			 must submit a copy of the material with the request.
(6)
Evidence
. The
			 Presiding Officer need not observe the rules of evidence observed by the courts
			 of Massachusetts or of the United States, but shall observe the rules of
			 privilege recognized by Massachusetts law. Evidence may be admitted and given
			 probative effect only if it is the kind of evidence on which reasonable persons
			 are accustomed to rely in the conduct of serious affairs. The Presiding Officer
			 may exclude testimony or evidence which he or she determines is unduly
			 repetitious, or will have an unreasonably dilatory effect upon the Proceeding,
			 or should have been submitted as part of a Rate Filing or a Responsive Filing.
			 All evidence, including any records, investigative reports and documents in the
			 possession of the Division, which the Presiding Officer desires to use in
			 making a decision, shall be offered and made a part of the record in the
			 Proceeding, and no other factual information or evidence shall be considered
			 except as provided in 211 CMR 101.09. Documentary evidence may be submitted to
			 the record in the form of copies or excerpts or, if permitted by the Presiding
			 Officer, by incorporation by reference.
(7)
Written Direct
			 Testimony
. All sworn written testimony shall be offered in
			 evidence with the same force and effect as if it were stated orally by the
			 witness, and shall be subject to objections or motions to strike in the same
			 manner as oral testimony. If a witness who has given sworn written testimony is
			 unavailable for cross-examination on that testimony at a hearing, such sworn
			 written testimony shall be removed and stricken from the record, in whole or in
			 part, unless the Presiding Officer determines that no Party would be unduly
			 prejudiced by its inclusion. For purposes of 211 CMR 101.09(7), "unavailable"
			 shall include, without limitation, situations in which the witness is absent
			 from the Proceeding or unreasonably obstructs cross-examination despite an
			 order from the Presiding Officer.
(8)
Cross-examination and
			 Re-direct Examination
. A party, except as otherwise provided by
			 law or by
			 211 CMR 101.00, shall have
			 the right to submit sworn written testimony and to cross-examine witnesses.
			 Unless otherwise authorized by the Presiding Officer, cross-examination shall
			 be limited to subject matters which are relevant to the direct testimony of the
			 witness. Unless otherwise authorized by the Presiding Officer, redirect
			 examination shall be limited to matters which are within the scope of the
			 cross-examination of the witness.
(9)
Rebuttal
			 Evidence
. A Party, except as otherwise provided by law or
			 211 CMR 101.00, shall have
			 the right to submit rebuttal evidence. Rebuttal evidence shall be limited to
			 denial of an affirmative fact that another Party has endeavored to prove.
			 Surrebuttal evidence will be allowed at the discretion of the Presiding
			 Officer. To the extent that any Party intends to introduce rebuttal or
			 surrebuttal evidence, it shall inform the Presiding Officer, as soon as
			 practicable, of its intention, the subject of the proposed evidence and the
			 identity of any witnesses.
(10)
Additional Evidence
. At any stage of the hearing, the
			 Presiding Officer may call for further evidence upon any issue, and may require
			 any Party or Parties, to present such evidence. The Presiding Officer may also,
			 in his or her discretion and for good cause shown, permit a Party during the
			 Proceeding to introduce exhibits and to raise issues not included in its Rate
			 Filing or Responsive Filing. In connection with a call for further evidence or
			 cross-examination concerning such further evidence, the Presiding Officer may,
			 in his or her discretion, alter the established hearing and filing
			 schedules.
(11)
Control
			 of Testimony
. The Presiding Officer shall have the right to
			 question witnesses at any time in the course of their testimony. The Presiding
			 Officer may impose reasonable time limits on cross-examination and redirect. If
			 the Presiding Officer determines that the testimony of a witness is irrelevant,
			 immaterial or repetitious, he or she may order the witness to limit or omit
			 further testimony on a particular subject or to cease testifying.
(12)
Offers of
			 Proof
. A Party may make an offer of proof after a ruling by the
			 Presiding Officer excluding proposed evidence. The offer of proof shall include
			 a summary of the substance of proposed oral testimony and copies of documents.
			 The Presiding Officer may require that the offer of proof be made in writing.
			 All written offers of proof shall be marked for identification.
(13)
Stipulations
.
			 At any stage of the Proceeding, Parties may stipulate to any pertinent facts,
			 either orally or in writing. In making findings, the Presiding Officer need not
			 be bound by a stipulation, provided, however, that the Presiding Officer shall
			 notify the Parties before the end of the proceeding if he or she does not
			 intend to accept a stipulation, and shall give Parties a reasonable opportunity
			 to present evidence of any fact or issue covered by such stipulation.
(14)
Oral Argument
.
			 After completion of evidentiary hearings in a Proceeding, the Presiding Officer
			 may, on his or her own or on the motion of any Party, allow oral argument. In
			 determining whether oral argument should be allowed, the Presiding Officer
			 shall consider the complexity or importance of the issues, the public interest
			 to be served, and the availability of time.
(15)
Conduct of Persons
			 Present
. All persons present at a hearing shall conduct themselves
			 in a manner consistent with the standards of decorum commonly observed in the
			 Massachusetts courts. When such standards are not observed, the Presiding
			 Officer may take such action as he or she deems appropriate to maintain order,
			 including the exclusion of any disorderly person from the hearing. If the
			 person so excluded is a Party, its counsel or its authorized representative,
			 the Presiding Officer may decide against such party with prejudice.
(16)
Transcripts
.
			 The Filing Party shall engage a qualified stenographer officially to record and
			 transcribe a Proceeding. The Filing Party shall pay the stenographer's fees,
			 including any fee for expedited transcripts, together with the cost of
			 providing two copies of the transcript to the Division, in the format
			 determined by the Presiding Officer, and one copy to the State Rating Bureau
			 and to each Statutory Intervenor. Other Parties may, at their expense, obtain
			 copies of the transcript from the stenographer.