R590-160. Adjudicative Proceedings, R590. Insurance, Administration, Utah Administrative Code

Utah Administrative Code (Current through November 1, 2019)

R590-160-1. Authority

Latest version.

This rule is promulgated by the commissioner pursuant to Subsections 31A-2-201(3)(a), 63G-4-102(6), 63G-4-203(1), and applicable provisions of Title 63G, Chapter 4, Administrative Procedures Act.

R590-160-2. Purpose

Latest version.

(1) This rule establishes procedures governing the designation and conduct of adjudicative proceedings before the presiding officer.

(2) Public hearings pursuant to Section 63G-3-302 are not governed by this rule.

R590-160-3. Definitions

Latest version.

In addition to the definitions in Sections 31A-1-301 and 63G-4-103, the following definitions shall apply for the purpose of this rule:

(1) "Complainant" means the Department in any action against a licensee or other person alleged to have committed a violation of statute, rule, or order of the commissioner.

(2) "Department" means the Utah Insurance Department.

(3) "Existing Disability" means:

(a) any suspension, revocation or limitation of a license or certificate of authority; or

(b) any limitation on a right to apply to the commissioner for a license or certificate of authority.

(4) "Intervenor" means any person, not a party, permitted to intervene in a proceeding pursuant to Section 63G-4-207.

(5) "Licensee" means any person who has been issued a license or certificate under Title 31A, Insurance Code.

(6) "Petitioner" means any person, other than the Department, who commences an adjudicative proceeding and seeks agency action.

(7) "Pleading" means any paper or document filed, in written or electronic form, in an adjudicative proceeding.

(8) "Presiding officer" means the commissioner or a presiding officer appointed by the commissioner

(9) "Respondent" means any person against whom an adjudicative proceeding is initiated.

R590-160-4. Designations of Proceedings

Latest version.

(1) Any of the following proceedings may be commenced as an informal adjudicative proceeding:

(a) the Department's initial decision on an application for a license or a certificate of authority;

(b) the Department's decision on a petition to remove an existing disability;

(d) the Department's decision to disapprove a form;

(e) when it appears to the Department that the matter may have no issues;

(f) when it appears to the Department that the matter involves technical or minor violations of law; or

(g) proceedings for the purpose of entering stipulated findings of fact, conclusions of law and orders.

(2) A complainant may commence an informal or formal adjudicative proceeding pursuant to this rule.

(3) Any petitioner may commence a formal adjudicative proceeding pursuant to this rule.

(4) The presiding officer shall conduct any informal or formal adjudicative proceeding.

(5) Any time before a final order is issued, the presiding officer may, sua sponte or upon motion of any party, convert any adjudicative proceeding from a formal to an informal adjudicative proceeding or from an informal to a formal adjudicative proceeding, provided the conversion is in the public interest and does not unfairly prejudice the rights of any party.

R590-160-5. Rules Applicable to All Proceedings

Latest version.

(1) Liberal Construction. These rules shall be liberally construed to secure just, speedy and economical determination of all issues.

(2) Deviation from Rules. The presiding officer may permit a deviation from these rules if strict compliance is found to be impracticable or unnecessary or for other good cause.

(3) Computation of Time. The time within which any act shall be completed shall be computed by excluding the first day and including the last day unless the last day is a Saturday, Sunday or a legal holiday, and then the last day is excluded and the period runs until the end of the next day that is not a Saturday, Sunday, or a legal holiday.

(4) Parties.

(a) A party to a proceeding is:

(i) any person authorized by statute or agency rule to participate in the adjudicative proceeding pursuant to Subsections 63G-4-201(1)(a) or (b);

(ii) a complainant;

(iii) a petitioner;

(iv) a respondent; or

(v) an intervenor.

(b) Any participant in a proceeding shall be named in the caption as Petitioner, Complainant, Respondent or Intervenor.

(5) Appearances, Representation, and Pro Hac Vice.

(a) Making an Appearance. Any party enters an appearance by filing an initial written response to a notice of agency action at the beginning of the adjudicative proceeding, providing the party's name, address, email, telephone number, and the party's position or interest in the proceeding.

(b) Representation of Parties.

(i) An attorney who is an active member of the Utah State Bar may represent any party.

(ii) An individual who is a party to an adjudicative proceeding may represent himself or herself.

(iii) An officer duly authorized by corporate resolution may represent a corporation that is duly registered with the Department of Commerce, Division of Corporations and Commercial Code, as required by law.

(iv) A general partner may represent a partnership.

(v) An authorized member or manager may represent a limited liability company that is duly registered with the Department of Commerce, Division of Corporations and Commercial Code, as required by law.

(vi) The legal, registered owner of a business conducted under an assumed name, dba, shall be considered the legal party in interest and that business may not be represented except through the legal party in interest.

(i) An attorney licensed to practice in a jurisdiction outside of Utah may represent any party in a particular matter before the presiding officer without being admitted pro hac vice in Utah.

(ii) An attorney, pro hac vice attorney, or other authorized representative pursuant to R590-160-5(5)(b), if previous appearance has not been entered, shall file a Notice of Appearance with the presiding officer no later than five days before any hearing at which the attorney or other authorized representative shall appear. The Notice of Appearance shall contain:

(A) the name, address, telephone number, fax number, email address, bar identification number(s), and state(s) of admission of the pro hac vice attorney, if applicable;

(B) the name and docket number of the case in which the applicant is appearing as the attorney of record;

(C) a statement whether, in any state, the applicant is currently suspended or disbarred from the practice of law, or has been disciplined within the prior five years, or is the subject of any pending disciplinary proceeding; and

(D) the name, address, Bar identification number, telephone number, fax number and email of a member of the Utah State Bar to serve as associate counsel.

(iii) The presiding officer may require Utah counsel to appear at any hearing.

(6) Pleadings.

(a) Pleadings Allowed. Pleadings shall consist of petitions, complaints, requests for hearing, responsive pleadings, motions, stipulations, affidavits, memoranda, orders, or documents in a proceeding.

(b) Docket Number. Upon the commencement of an adjudicative proceeding, the commissioner shall assign a docket number to the proceeding.

(i) Centered heading: BEFORE THE INSURANCE COMMISSIONER OF THE STATE OF UTAH;

(ii) Left side, identification of parties;

(iii) Right side, identification of type of pleading;

(iv) Right side, docket number.

(d) Content of Pleadings. Any pleading shall identify the proceedings by title and docket number, if known, and shall contain a clear and concise statement of the matter relied upon as a basis for the pleading, together with an appropriate request for relief when relief is sought.

(e) Amendment to Pleading. The presiding officer may allow any pleading to be amended or corrected. Any amendment to any pleading shall be consistent with the Utah Rules of Civil Procedure.

(f) Signing of Pleading. Any pleading shall be signed and dated by the party or by the party's attorney or other authorized representative and shall show the signer's address, telephone number, and email. The signature is a certification by the signer that the signer has read the pleading and that, to the best of the signer's knowledge and belief, there are good grounds to support it.

(g) Motions.

(i) A proceeding seeking an order to secure compliance may not be initiated by motion except for a Motion for Order to Show Cause.

(ii) Any motion, other than one made orally at a hearing, shall be in writing and shall be filed and served on all parties as provided in this rule. The presiding officer may use discretion to decide any motion with or without a hearing. If either party desires a hearing on its motion, the pleadings in support or in opposition shall state that a hearing is requested and shall provide the reasons therefor. The filing of affidavits or declarations in support of the motions or in opposition thereto may be permitted or required by the presiding officer. Oral motions may be allowed at a hearing at the discretion of the presiding officer.

(iii) Any motion shall be filed and served at least ten days prior to the date set for the hearing.

(7) Filing and Service.

(a) Any pleading shall be considered filed on the date it is received by the Department.

(b) Unless filed and served electronically pursuant to R590-160-5.5, the pleading shall be filed with the Department and a copy served upon all other parties to the proceeding. The presiding officer may direct that a copy of any pleading be made available by the filer to any person requesting copies thereof who the presiding officer determines may be affected by the proceedings.

(c) Service may be made upon any party or other person by ordinary mail, by certified mail with return receipt requested, in accordance with the Utah Rules of Civil Procedure, or by any person specifically designated by the commissioner. Service upon a licensee, if by mail, shall be to the mailing address or other address on file with the Department.

(d) Any pleading required to be served by these rules shall include a Certificate of Service in substantially the following form: The undersigned hereby certifies that on this date, a true and correct copy of the (Pleading title) was served, emailed, or mailed, postage prepaid, to the following: name, street, city, state, zip code, and email address. Dated this (blank) day of (month), (year). (signed).

(e) When any party is represented by an attorney or other authorized representative, service upon the attorney or representative constitutes service upon the party.

(8) Disqualification of Presiding Officer.

(a) Any party to an adjudicative proceeding may move for the disqualification of an assigned presiding officer by filing with the commissioner an affidavit alleging facts sufficient to support disqualification.

(b) The commissioner shall determine the issue of disqualification as a part of the record of the case and may request and receive any additional evidence or testimony as considered necessary to make this determination. The adjudicative proceeding may not proceed until the commissioner makes this determination. No appeal shall be taken from the commissioner's order on the determination of disqualification except as part of an appeal of a final agency action.

(i) If the commissioner finds that a motion for disqualification was filed without a reasonable basis or good faith belief in the facts asserted, the commissioner may order that the offending party be subject to the appropriate sanctions as are authorized by statute or this rule.

(ii) When a presiding officer is disqualified or it becomes impractical for the presiding officer to continue, the commissioner shall appoint another presiding officer.

(9) Ex Parte Contact Prohibited. Except as to matters that by law are subject to disposition on an ex parte basis, the commissioner and the presiding officer shall not have ex parte contact with any party or its representative, directly or indirectly involved in any matter that is the subject of a pending adjudicative proceeding unless all parties are given notice and an opportunity to participate.

(10) Standard of Proof. Any issue of fact in an adjudicative proceeding before the presiding officer shall be decided upon the basis of a preponderance of the evidence standard.

(11) Burden of Proof.

(a) A party who commences an adjudicative proceeding has the burden to prove entitlement to the relief sought.

(b) A party who asserts an affirmative defense to a request for relief has the burden to prove entitlement to that defense.

R590-160-6. Electronic Filing and Service of Pleadings in Formal and Informal Proceedings

Latest version.

(1) Filing with or service on the presiding officer may be accomplished by sending a copy of the pleading in PDF to uidadmincases@utah.gov.

(2) Filing with or service on the Department may be accomplished by sending a copy of the pleading in PDF to the Department's current email as provided in the subject proceeding.

(3) Filing with or service on:

(a) a licensee may be accomplished by sending a copy of the pleading in PDF to the current email provided by the licensee pursuant to Subsection 31A-23a-412(1); or

(b) a party's representative may be accomplished by sending a copy of the pleading in PDF to the representative's current email set forth in the representative's filed pleading.

(4)(a) Any pleading electronically filed or served shall be signed by a party or its representative and shall contain a signed certificate stating the date of electronic filing or service.

(b) An electronically filed or served pleading may be signed using any lawfully recognized signature, including an electronic signature.

R590-160-7. Rules Applicable to Formal Adjudicative Proceedings

Latest version.

(1) Conduct of Hearing. Any hearing in a formal adjudicative proceeding shall be conducted pursuant to the provisions of Section 63G-4-206.

(2) Continuance. If application is made within a reasonable time prior to the date of hearing, upon proper notice to the other parties, the presiding officer may grant a motion for continuance or other change in the time and place of hearing, upon good cause shown. The presiding officer may also, for good cause, continue a hearing in process if such continuance will not substantially prejudice the rights of any party.

(3) Public Hearings. Unless ordered by the presiding officer for good cause, any hearing shall be open to the public.

(4) Telephonic Testimony. The presiding officer may, when the identity of a witness can be established with reasonable assurance, take testimony telephonically. If telephonic testimony is taken, any party shall be permitted to hear the testimony and examine or cross-examine the witness. The presiding officer has discretion whether telephonic testimony may be allowed. Any telephonic testimony shall be given under oath.

(5) Record of Hearing.

(a) Recording. The record of the proceeding shall be made by an audio recording. A duplicate copy of the recording, or any portion thereof, shall be provided by the presiding officer at the request and expense of any party, and at no cost to the commissioner.

(b) Transcript of Hearing. Upon reasonable notice and at the party's own expense, any party may request that a certified shorthand reporter be present to record the proceeding. If a transcript is made, the original transcript of the proceeding shall be filed with the presiding officer at no cost to the commissioner. Any party who wants a copy of the transcript may purchase it from the reporter at the party's own expense

(6) Subpoenas, Witness Fees and Payment.

(a) Subpoenas.

(i) On the presiding officer's command, or at the request of any party the presiding officer may issue a subpoena to:

(A) obtain or inspect documents;

(B) inspect premises or tangible things; or

(ii) Any subpoena shall be issued and served in accordance with the Utah Rules of Civil Procedure, Rule 45, Subpoena.

(b) Witness Fees. Each subpoenaed witness, other than Department staff, who appears before the presiding officer shall be entitled to receive the same fees and mileage allowed by law to witnesses in a district court, to be paid by the party who requests the subpoena.

(i) Any witness appearing at the request of the presiding officer shall be entitled to payment from the funds appropriated for the use of the Department.

(ii) Any witness subpoenaed at the request of a party other than the presiding officer may, at the time of service of the subpoena, demand one day's witness fee and mileage in advance and unless such fee is tendered, that witness shall not be required to appear.

(7) Discovery. Discovery may be conducted by the parties' agreement or pursuant to an order of the presiding officer.

(8) Order. The presiding officer shall issue a written, signed order based upon evidence presented in the hearing.

R590-160-8. Rules Applicable to Informal Adjudicative Proceedings

Latest version.

(1) An informal adjudicative proceeding may be commenced by the Department by issuing a Notice of Informal Adjudicative Proceeding and Order as provided in R590-160-4(1). The Order shall be based upon the information contained in the files of the Department, any declarant's testimony, and information known to the presiding officer. The Order shall constitute a proposed order that shall become final 15 days after service or mailing to the party unless a written request for a hearing is received by the Department prior to the expiration of 15 days.

(2) A respondent's failure to timely request a hearing in an informal adjudicative proceeding will be considered a failure to exhaust administrative remedies.

(3) When a hearing is requested in an informal adjudicative proceeding, a Notice of Prehearing Conference shall be issued stating the matters to be decided and giving notice of the date, time and place of the prehearing scheduling conference to be held.

(4) A hearing in an informal adjudicative proceeding may be of record.

(5) At a hearing in an informal adjudicative proceeding, the presiding officer may receive testimony, proffers of evidence, affidavits, declarations, and arguments relating to the issues to be decided and may issue subpoenas requiring the attendance of witnesses or the production of necessary evidence.

(6) At the close of the informal adjudicative proceeding, the presiding officer shall issue a written, signed order based upon evidence in the Department's files and the evidence or proffers of evidence received at the proceeding. The order shall be final on the date of the order.

R590-160-9. Agency Review

Latest version.

(1) Agency review of an adjudicative proceeding, except an informal proceeding that becomes final without a request for a hearing pursuant to R590-160-7(1), shall be available to any party to the proceeding by filing a petition for review with the commissioner within 30 days of the date of the order. Failure to seek agency review shall be considered a failure to exhaust administrative remedies.

(2) A request for agency review shall be filed in accordance with Section 63G-4-301.

(3) The review shall be conducted by the commissioner or the commissioner's designee. The designee shall not be the presiding officer who issued the decision under review. If the review is conducted by a designee, the designee shall recommend a disposition to the commissioner who shall make the final decision and shall sign the order.

(4) Content of a Request for Agency Review.

(a) The content of a request for agency review shall be in accordance with Subsection 63G-4-301(1)(b) and include a copy of the order, which is the subject of the request.

(b) A party requesting agency review shall set forth any factual or legal basis in support of that request.

(i) supporting argument;

(ii) citation to appropriate legal authority

(iii) any reference to the relevant portion of the record developed during the formal adjudicative proceeding under review; or

(iv) reference to the relevant portion of the Department's files, and other evidence or proffers of evidence received during the informal adjudicative proceeding under review.

(d) If a party challenges a finding of fact in the order subject to review, the party shall demonstrate:

(i) based on the entire record, that the finding is not supported by substantial evidence in the formal adjudicative proceeding under review; or

(ii) based on the Department's files and declarant's testimony, that the finding is not supported by substantial evidence in the informal adjudicative proceeding under review.

(e) If a party challenges a legal conclusion in the order subject to review, the party shall support its argument with citation to any relevant authority and also:

(i) cite the portion of the record which is relevant to that issue in the formal adjudicative proceeding under review; or

(ii) cite the portion of the record which is relevant to that issue based upon the evidence in the Department's files, facts appearing in the Department's files and verified by a declarant testimony, and facts presented in evidence or proffers of evidence received in the informal adjudicative proceeding under review.

(f)(i) If the grounds for agency review include any challenge to a determination of fact or conclusion of law as unsupported by or contrary to the evidence, the party seeking agency review shall:

(A) order and cause a transcript of the recording relevant to such finding or conclusion to be prepared in the formal adjudicative proceeding under review, in accordance with R590-160-6(5)(a) and (b); or

(B) provide a statement in its request for agency review that no transcript or recording is available in the informal adjudicative proceeding under review.

(ii) In a request for agency review under R590-160-8(4)(e)(i)(A), the party seeking review shall certify that a transcript has been ordered and shall notify the presiding officer when the transcript is available for filing.

(iii) The party seeking agency review shall bear the cost of the transcript.

(iv) The presiding officer may waive the requirement of preparation of a written transcript and permit citation to the recording of such adjudicative proceeding upon motion and a reasonable showing that such citation would not be extensive and the costs and period of time in preparation of a written transcript would be unduly burdensome in relation thereto.

(5) Request for Stay.

(a) Upon the timely filing of a request for agency review, the party seeking review may request that the effective date of the order subject to review be stayed pending the completion of review.

(b) The Department may oppose the request for a stay in writing within 10 days from the date the stay is requested.

(c) In determining whether to grant a request for a stay, the presiding officer shall review the request, any opposing memorandum, the findings of fact, conclusions of law, and order and determine whether a stay is in the best interest of the public. If it is determined to be in the best interest of the public to issue a stay, the presiding officer may:

(i) issue a stay, staying all or any part of the order pending agency review, or

(ii) issue a conditional stay by imposing terms, conditions or restrictions on a party pending agency review.

(d) The presiding officer may also enter an interim order granting a stay pending a final decision on the request for a stay.

(6) Memoranda.

(a) The presiding officer may order or permit the parties to file memoranda to assist in conducting agency review. Any memoranda shall be filed consistent with these rules or as otherwise governed by any scheduling order.

(b)(i) If a transcript is necessary to conduct agency review, a supporting memorandum shall be filed no later than 15 days after the filing of the transcript with the Department.

(ii) If a transcript is unavailable or waived by the presiding officer pursuant to R590-160-8(4)(f)(iv), any supporting memoranda to the request for agency review shall be filed with the request.

(d) After the filing of an opposing memorandum, a reply memorandum shall be filed no later than five days after the filing of the opposing memorandum.

(7) Oral Argument.

The request for agency review or the response thereto shall state whether oral argument is sought in conjunction with agency review. The presiding officer may order or permit oral argument if determined to be warranted to assist in conducting agency review.

(8) Standard of Review.

The standards for agency review correspond to the standards for judicial review of formal adjudicative proceedings, as set forth in Subsection 63G-4-403(4).

(9) Order on Review.

(a) The order on review shall comply with the requirements of Subsection 63G-4-301(6).

(b) An Order on Review may affirm, reverse, or amend, in whole or in part, the previous order, or remand for further adjudicative proceeding or hearing.

(10) Failure to comply with R590-160-8 may result in dismissal of the request for agency review.

R590-160-10. Sanctions

Latest version.

(1) In any adjudicative proceeding the presiding officer may, by order, impose sanctions upon any party, a party's representative, any witness, or a witness's representative for contemptuous or disobedient conduct, or for failure to comply with this rule or any lawful order.

(2)(a) The presiding officer may take reasonable steps to control the conduct of an adjudicative proceeding. The presiding officer may impose a sanction against a party or a witness who fails to comply with an order or with a requirement of R590-160.

(b) A sanction may include:

(i) excluding evidence;

(ii) dismissing claims;

(iii) striking pleadings or portions of the pleadings;

(iv) entering default judgments; or

(v) ordering payment of costs, expenses and fees.

R590-160-11. Severability

Latest version.

If any provision of this rule or its application to any person or circumstance is for any reason held to be invalid, that invalidity shall not affect any other provision or application of this rule, which can be given effect without the invalid provision or application, and to this end the provisions of this rule are declared to be severable.