Code of Massachusetts Regulations › 211 CMR - DIVISION OF INSURANCE › Title 211 CMR 77.00 - Procedures For The Conduct Of Proceedings On Fixed-and-established Private Passenger Motor Vehicle Insurance Rates › Section 77.07 - Conduct of the Proceeding

Current through Register 1525, July 5, 2024
(1)
Docket
. The proceeding shall be assigned a number or
			 numbers on the docket maintained by the Division. Copies of all petitions,
			 briefs, advisory filings, exhibits, written testimony, transcripts, memoranda
			 of findings, orders, decisions, and material submitted in connection with a
			 remand order shall be maintained in the Division's files for a period of not
			 less than seven years.
(2)
Presiding Officer
. The hearing shall be conducted by
			 the Presiding Officer who shall administer oaths and affirmations, and make all
			 decisions regarding the admission or exclusion of evidence and testimony or
			 other procedural matters which may arise in the course of the
			 hearing.
(3)
Ex
			 parte
Communication
. From the
			 start of a proceeding under
			 211 CMR 77.00 and until a
			 final decision is rendered, no person who is not employed by the Division shall
			 communicate
ex parte
with respect to the merits of a
			 proceeding with the Commissioner, the Presiding Officer, or any Division
			 employee involved in the decision process for the proceeding in question. A
			 request for information on the status of a proceeding, however, shall not be
			 prohibited by 211 CMR 77.07(3). If an
ex parte
communication
			 is directed to a person in violation of 211 CMR 77.07(3), the person shall
			 immediately inform the Commissioner of the substance of the communication and
			 the circumstances of its receipt. Where a party or his or her agent has
			 violated 211 CMR 77.07(3), the Presiding Officer, within his or her discretion,
			 may decide against that party with prejudice, or may exclude that party from
			 further participation in the proceeding. If the Presiding Officer determines
			 that a person not a party has violated 211 CMR 77.07(3), the Presiding Officer
			 may exclude that person from the hearing.
(4)
Conduct of Persons
			 Present
. All persons present at the hearing shall conduct
			 themselves in a manner consistent with the standards of decorum commonly
			 observed in the courts of Massachusetts. When these standards are not observed,
			 the Presiding Officer may take action as he or she deems appropriate to
			 maintain order in the hearing, including the exclusion of a disorderly person
			 from a further participation in the proceeding.
(5)
Motions
. A party
			 may, by motion, request a ruling from the Presiding Officer. The motion shall
			 state the ruling sought and its grounds. The Presiding Officer may require a
			 party to submit a motion in writing and may, in his or her discretion, hear
			 oral argument on the motion before making a decision.
(6)
Oral Statements
.
			 A person who has not filed a petition for leave to intervene or participate or
			 whose petition has been denied may request permission to make an unsworn oral
			 statement. Oral statements will be heard at any time within the discretion of
			 the Presiding Officer. The Presiding Officer may limit the amount of time
			 allowed for an oral statement. If the oral statement is irrelevant, immaterial
			 or unduly repetitious, the Presiding Officer may restrict the testimony of the
			 speaker.
(7)
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, will cause an unreasonable
			 delay of the proceeding, or should have been submitted as part of an advisory
			 filing. All evidence, including 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 77.07. Documentary evidence may be submitted in
			 the form of copies or excerpts, or by incorporation by reference.
(8)
Written Direct
			 Testimony
. All written testimony shall be offered in evidence with
			 the same force and effect as though it were stated orally by the witness, and
			 shall be subject to objections or motions to strike in the same manner as oral
			 testimony. In the event a witness who has given written testimony is
			 unavailable for cross-examination on that testimony at the hearing, such
			 written testimony shall be removed from the record, in whole or in part, unless
			 the Presiding Officer determines that no party would be unduly prejudiced by
			 its inclusion. For the purpose of 211 CMR 77.07, "unavailable" shall include,
			 without limitation, situations in which the witness is absent from the hearing,
			 or unreasonably obstructs cross-examination despite an order from the Presiding
			 Officer.
(9)
Cross- and
			 Redirect Examination
. Cross- and redirect examination shall be
			 oral. Unless otherwise authorized by the Presiding Officer, cross-examination
			 shall be limited to matters which are within the scope of the direct testimony
			 of the witness. Redirect examination shall be limited to matters which are
			 within the scope of the cross-examination of the witness.
(10)
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. Where 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 certain subject or to cease testimony
			 altogether.
(11)
Additional Evidence
. At any stage of the proceeding
			 the Presiding Officer may call for further evidence or cross-examination upon
			 any issue, and require evidence to be presented or cross-examination to be
			 conducted. In connection with a call for further evidence or cross-examination
			 pursuant to 211 CMR 77.11, the Presiding Officer may in his or her discretion
			 alter the established hearing and filing schedules.
(12)
Rebuttal and
			 Surrebuttal
. Rebuttal evidence shall be limited to denial of an
			 affirmative fact which another party has endeavored to prove. Surrebuttal
			 evidence will be allowed at the discretion of the Presiding Officer.
(13)
Official
			 Notice
. The Presiding Officer may take official notice of matters
			 as might be judicially noticed by the courts of the United States or of
			 Massachusetts and, in addition, the Presiding Officer may take notice of
			 general or technical facts within his or her specialized knowledge; provided
			 that the Presiding Officer shall notify all parties of the material so noticed,
			 and shall afford a party an opportunity to contest the facts so noticed. A
			 party requesting that the Presiding Officer take official notice of facts or
			 material must submit a copy of the material with the request.
(14)
Offers of
			 Proof
. A party may make an offer of proof after a ruling of the
			 Presiding Officer excluding proposed evidence. The offer of proof shall include
			 a summary consisting of a statement of the substance of the 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.
(15)
Stipulations
. In the discretion of the Presiding
			 Officer the parties may, by stipulation in writing filed at any stage of the
			 proceeding or orally made at a hearing, agree upon any pertinent fact or issue
			 in the proceeding. 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 the parties reasonable opportunity to
			 present evidence of any fact or issue covered by such stipulation.
(16)
Transcript
. The
			 insurer shall engage a qualified stenographer, subject to the approval of the
			 Presiding Officer, officially to record and transcribe a proceeding. The
			 insurer shall pay the stenographer's fees along with the cost of providing two
			 copies of the transcript, in a format prescribed by the Presiding Officer, to
			 the Docket Clerk and one copy to the State Rating Bureau and each statutory
			 intervenor. Other persons may obtain copies of the transcript from the
			 stenographer at cost.