Code of Massachusetts Regulations
211 CMR - DIVISION OF INSURANCE
Title 211 CMR 88.00 - Procedures for the Appeal of Insurer At-fault Accident Determinations and the Conduct of Hearings on Insurer At-fault Accident Determinations
Section 88.08 - Appeal Hearing Procedures
Current through Register 1531, September 27, 2024
(1) Conduct of Persons Present. All parties, Authorized Representatives, counsel, witnesses and other persons present at an Appeal Hearing shall conduct themselves in a manner consistent with the standards of decorum commonly observed in the courts of the Commonwealth. Where such standards are not observed, the Hearing Officer may take action as he or she deems appropriate to maintain order at the hearing, including the exclusion of any person from the hearing. If the person so excluded is a Party or his or her counsel or Authorized Representative, the Hearing Officer may decide the Appeal against such Party with prejudice.
(2) Appellant's Statement in Lieu of Personal Appearance. After an Appellant receives a notice of an Appeal Hearing, he or she may elect to waive an Appeal Hearing and to submit to the Board a written Statement in Lieu of Personal Appearance. The Appellant must sign the Statement under the pains and penalties of perjury. The Appellant must submit with such Statement copies of all documents supporting the Appellant's allegations or defenses, except for those that have already been supplied to the Board. The Statement must be submitted to the Board's Boston office at least five business days prior to the Appeal Hearing date.
(3) Rights and Duties of the Parties.
(4) Hearing Officer's Duties and Powers at Appeal Hearings. The Hearing Officer shall conduct a fair Appeal Hearing to protect the rights of the Parties and to ensure that the Parties have a full opportunity to present their cases. The Hearing Officer shall make a fair, independent and impartial decision based upon the issues and evidence presented at the Appeal Hearing according to the law. The Hearing Officer need not observe the rules of evidence observed by the courts of the United States or the Commonwealth, 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 upon which reasonable persons are accustomed to rely in the conduct of serious affairs. All records, investigative reports, and other documents on which the Hearing Officer relies in making a decision shall be made a part of the record of the Appeal Hearing. Documentary materials may be tendered and entered into evidence in the form of originals, copies, or excerpts, or by incorporation by reference. The Hearing Officer also shall have the following duties and powers, including, but not limited to:
(5) Conflicts of Interest. No Hearing Officer who has a direct or indirect interest, personal involvement, or bias, in an Appeal Hearing, shall participate in the decision-making process or conduct the Appeal Hearing. In the event of a conflict, the Hearing Officer shall recuse himself or herself and the Appeal Hearing will be reassigned to another Hearing Officer or will be rescheduled to another date to be conducted by another Hearing Officer.
(6) Oral Testimony. Oral testimony shall be given under oath or affirmation.
(7) Ex Parte Communications.
(8) Objections and Exceptions to Rulings. A Party need not make formal exceptions to rulings on evidence and procedure but must, at the time of a ruling, make known to the Hearing Officer his or her objections to such ruling, the grounds for the objections, and the different action which he or she desires be taken.
(9) Offers of Proof. Any offer of proof made in connection with an objection to a ruling by the Hearing Officer that rejects or excludes the proffered oral or written testimony shall consist of a statement of the substance of the evidence which the Party making such offer contends would be adduced by the testimony. If the rejected or excluded evidence consists of documents or records, or of references to documents or records, the objecting Party must submit to the Hearing Officer a copy of such documents, records, or references, which shall be marked for identification and shall constitute the offer of proof.
(10) Motions. The Hearing Officer may make rulings regarding the admissibility of evidence or any other matter which may arise during the Appeal Hearing. Any Party requesting a ruling from the Hearing Officer shall do so by motion that states the grounds for the motion and the nature of the ruling that is sought. The Hearing Officer may require that a motion be in writing. The Hearing Officer may, in his or her discretion, hear oral argument on a motion prior to making a ruling.
(11) Non-English Speaking Parties. All Appeal Hearings are conducted in English. If a Party cannot communicate effectively in English, the Hearing Officer shall continue the Appeal Hearing until the Party, at his or her own expense, can provide someone who can communicate effectively at the Appeal Hearing in both English and the language of the Party. The Hearing Officer has the discretion to impose a time limitation on the continuance of the Appeal Hearing.
(12) Default by Appellant.
(13) Vacating At-fault Accident Determination for Failure of Insurer to Defend Appeal. The Board shall vacate an Insurer's At-fault Determination if an Insurer fails to defend the Appeal. Failure to defend an Appeal includes the failure of the Insurer to file papers required under 211 CMR 88.00, to appear at a scheduled Appeal Hearing, to respond to notices, or any other activity that supports a conclusion that the Insurer does not intend to defend its At-fault Accident Determination.
(14) Audio Recording. The Board shall electronically record all oral testimony at an Appeal Hearing. The Board's audio recording shall be included in the Appeal Record. The Board need not transcribe such audio recordings.