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

(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.