S.C. Code Regs. 69-31 - Practice and Procedure for Hearings Before the Chief Insurance Commissioner under the State Administrative Procedures Act, Act No. 176 of 1977

A. Scope of rules: The rules of procedure in this regulation govern the practice for hearings, decisions, and administrative review conducted by the Chief Insurance Commissioner of South Carolina pursuant to statutory authority.

B. Records to be public: All pleadings, correspondence, exhibits, transcripts of testimony, exceptions, briefs, decisions, and other documents filed in the docket in any proceeding may be inspected and copied in the office of the Department Hearing Clerk. Inquiries may be made at or to the office of the Department Hearing Clerk, South Carolina Department of Insurance, 2711 Middleburg Drive, P. O. Box 4067, Columbia, South Carolina, 29240.

C. Use of gender and number: As used in this regulation, words importing the singular number may extend and be applied to several persons or things, and vice versa. Words importing the masculine gender may be applied to females or organizations.

D. Suspension of rules: Upon notice to all parties, the presiding officer or the Chief Insurance Commissioner, with respect to matters pending before them, may modify or waive any rule in this regulation upon determination that no party will be unduly prejudiced and that the ends of justice will thereby be served.

E. Appearance: A party may appear in person or by counsel. Counsel for a party must be members in good standing of the South Carolina Bar or associated with a member in good standing of the South Carolina Bar.

F. Authority for representation: Any individual acting in a representative capacity in any proceeding may be required to show his authority to act in such capacity.

G. Exclusion from hearing for misconduct: Disrespectful, disorderly, or contumacious language or contemptuous conduct, refusal to comply with directions, or use of dilatory tactics by any person at any hearing shall constitute grounds for immediate exclusion of such person from the hearing by the presiding officer or by the Chief Insurance Commissioner.

H. Parties; South Carolina Department of Insurance deemed a party:

(1) The term "party" means each person or agency named in a notice of opportunity for hearing and petition or admitted as a party, or properly seeking and entitled as a matter of right to be admitted as a party.

(2) The term "person" means any individual, partnership, corporation, association, governmental subdivision, or public or private organization of any character other than an agency.

(3) The South Carolina Department of Insurance shall be deemed a party to all proceedings.

I. Amici curiae:

(1) Any interested person or organization may file a petition to participate in a proceeding as an amicus curiae. Such petition shall be filed prior to the prehearing conference, or, if none is held, before the commencement of the hearing, unless the petitioner shows good cause for filing the petition later. The presiding officer may grant the petition if he finds that the petitioner has a legitimate interest in the proceedings, that such participation will not unduly delay the outcome, and may contribute materially to the proper disposition thereof. An amicus curiae is not a party and may not introduce evidence at a hearing; nor may an amicus curiae examine or cross-examine a witness.

(2) An amicus curiae may submit a statement of position to the presiding officer prior to the commencement of the hearing, and shall serve a copy on each party. The amicus curiae may submit a brief on each occasion a decision is to be made or a prior decision is subject to review. An amicus curiae brief shall be filed and served on each party within the time limits applicable to the party whose position the amicus curiae supports; or if he does not deem himself to support the position of any party, within the longest time limit applicable to any party at that particular stage of the proceedings.

(3) After all parties have completed their initial examination of a witness, any amicus curiae may request the presiding officer to propound specific questions to the witness. The presiding officer, may, in his discretion, grant any such request if he believes that the proposed additional testimony may assist materially in explaining factual matters at issue between the parties and will not expand the issues.

J. Complainants not parties: A person submitting a complaint to the Department, regarding any matter within the jurisdiction of the Department, is not a party to a proceeding governed by this regulation, but may petition, after proceedings are initiated, to become a amicus curiae.

K. Form of documents to be filed: Documents to be filed under this rule shall be dated, the original signed in ink, shall show the docket description and title of the proceeding, and show the title, if any, and address of the person signing the document. Copies need not be signed but the name of the person signing the original shall be reproduced on all copies. Documents shall be legible and shall be eight and one-half inches wide and eleven inches long.

L. Signature of documents: The signature of a party, authorized officer, employee or attorney constitutes a certificate that he has read the document, that to the best of his knowledge, information, and belief there is good ground to support it, and that it is not interposed for delay. If a document is not signed or is signed with intent to defeat the purpose of this section, it may be stricken as sham and false and the proceeding may proceed as though the document had not been filed. Similar action may be taken if scandalous or indecent matter is inserted in a document.

M. Filing and service: All written notices by a Department official, and all written motions, requests, petitions, memoranda, pleadings, exceptions, briefs, decisions, and correspondence to a Department official from a party, or vice versa, relating to a proceeding after its commencement shall be filed and served on all parties. Parties shall submit the original and one copy of documents for filing. Filings shall be made with the Department Hearing Clerk at the address stated in the notice of hearing or notice of opportunity for hearing, during regular business hours. Regular business hours are every Monday through Friday (legal holidays in the State of South Carolina excepted) from 8:30 a.m. to 5:00 p.m., eastern standard or daylight-saving time, whichever is effective in the State of South Carolina at the time. Originals only of exhibits and transcripts or testimony need be filed. Requirements for service on amicus curiae are set forth in BBB below.

N. Service--how made: Service shall be made by personal delivery of one copy to each person to be served or by depositing the document or documents in the United States mail, postage prepaid, addressed to the last known place of business or residence of such person, certified with return receipt requested. If a party or amicus curiae has appeared by attorney, service upon such attorney shall be deemed service upon the party or amicus. Documents served by mail should be mailed in sufficient time to reach the addressee by the date on which the original is due to be filed.

O. Date of Service: The date of service shall be the day on which the matter is deposited in the United States mail or is delivered in person, except that the date of service of the initial notice of hearing or opportunity for hearing shall be the date of its delivery, or of its attempted delivery, if delivery is refused.

P. Certificate of service: The original of every document filed and required to be served upon parties to a proceeding shall be endorsed with a certificate of service signed by the party making service or by his attorney or representative, stating that such service has been made, the date of service, and the manner of service, whether by mail or personal delivery.

Q. Computation: In computing any period of time under this rule or in an order issued hereunder, the time begins with the day following the act, event, or default, and includes the last day of the period, unless the last day is a Saturday, Sunday, or legal holiday observed in the State of South Carolina, in which event it includes the next following business day. If the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded from the computation of time.

R. Extension of time or postponement: Requests for extension of time must be served on all parties and must set forth the reasons for the application. Applications may be granted upon a showing of good cause by the applicant. After designation of a presiding officer and until issuance of his decision, such requests must be addressed to the presiding officer. Answers or responses to such requests are permitted, if made promptly.

S. Reduction of time to file documents: Upon good cause shown, the presiding officer or the Chief Insurance Commissioner may reduce any time limit prescribed by this regulation, except as provided by law.

T. Notice of hearing or opportunity for hearing: Proceedings are commenced by service of a notice of opportunity for hearing and petition upon a party, pursuant to N above of this regulation.

U. Answer to notice: A respondent or respondents shall file an answer to the petition within ten days after service thereof. Answers shall admit or deny specifically and in detail each allegation of the petition, unless the respondent party is without knowledge, in which case his answer should so state, and the statement will be deemed a denial. Allegations of fact in the petition not denied or controverted by answer shall be deemed admitted. Matters alleged as affirmative defenses shall be separately stated and numbered. Failure of a respondent to file an answer within the ten-day period following service of the petition may be deemed an admission of all matters of fact recited in the petition.

V. Amendment of notice or answer: The General Counsel may amend the petition once as a matter of course before an answer thereto is served, and each respondent may amend his answer once as a matter of course not later than ten days before the date fixed for hearing but in no event later than ten days from the date of service or his original answer. Otherwise, a petition or answer may be amended only by leave of the presiding officer. A respondent shall file his answer to an amended petition within the time remaining for filing the answer to the original petition or within ten days after service of the amended petition, whichever period may be the longer, unless the presiding officer otherwise orders.

W. Request for hearing: If neither a petition nor notice of opportunity for a hearing fix a date for hearing, a respondent, either in his answer or in a separate document, may request a hearing. Failure of a respondent to request a hearing shall be deemed a waiver of the right to a hearing and to constitute his consent to the making of a decision on the basis of such information as is available to the Department.

X. Consolidation: The Chief Insurance Commissioner may provide for proceedings in the Department to be joined or consolidated for hearing with proceedings in other State departments or agencies, by agreement with such other departments or agencies. All parties to any proceeding consolidated subsequent to service of a notice of opportunity for hearing and petition shall be promptly served with notice of such consolidation.

Y. Motions and petitions: Motions and petitions shall state the relief sought, the authority relied upon, and the facts alleged. If made before or after a hearing, these matters shall be in writing. If made at a hearing, they may be stated orally; provided, however, the presiding officer may require that they be reduced to writing and filed and served on all parties in the same manner as a formal motion. Motions, petitions, answers and replies shall be addressed to the presiding officer, if the case is pending before him. A repetitious motion or petition will not be entertained.

Z. Responses to motions and petitions: Within five days after a written motion or petition is served, or such other period as the Chief Insurance Commissioner or the presiding officer may fix, any party may file a response thereto. An immediate oral response may be made to an oral motion.

AA. Disposition of motions and petitions: The presiding officer or the Chief Insurance Commissioner may not sustain or grant a written motion or petition prior to expiration of the time for filing responses thereto, but may overrule or deny such motion or petition without awaiting response: Provided, however, that pre-hearing conferences, hearings and decisions need not be delayed pending disposition of motions or petitions. Oral motions and petitions may be ruled on immediately. Motions and petitions submitted to the presiding officer or the Chief Insurance Commissioner which are not disposed of in separate rulings or in their respective decisions or report will be deemed denied. Oral arguments shall not be held on written motions or petitions unless the presiding officer or the Chief Insurance Commissioner in his discretion, expressly so orders.

BB. Who Presides: The Chief Insurance Commissioner or a presiding officer designated and assigned by the Chief Insurance Commissioner shall preside over the taking of evidence in any hearing to which these rules of procedure apply.

CC. Designation of presiding officer: Designation by the Chief Insurance Commissioner of a presiding officer shall be in writing, and shall be signed by the Chief Insurance Commissioner or by his designee. The document signed by the Chief Insurance Commissioner or his designee, designating a presiding officer, shall specify whether the presiding officer is to hold a hearing and make a report or to certify the entire record, including his findings of fact, conclusions, recommendations and proposal for decision to the Chief Insurance Commissioner as required by these regulations, and may also fix the time and place of hearing. A copy of such order, designating an individual as a presiding officer, shall be served on all parties. After service of an order designating a presiding officer, and until such officer makes his report, all motions and petitions shall be submitted to him. In the case of the death, illness, disqualification or unavailability of the designated presiding officer, another presiding officer may be designated by the Chief Insurance Commissioner, or by his designee, to take his place.

DD. Authority of presiding officer: The presiding officer shall have the duty to conduct a fair hearing, to take all necessary action to avoid delay, and to maintain order. He shall also have all powers necessary to these ends, including, but not limited to, the authority to:

(1) Arrange and issue notice of the date, time, and place of hearings, or, upon due notice to the parties, to change the date, time, and place of hearings previously set;

(2) Hold conferences to settle, simplify, or fix the issues in a proceeding, or to consider other matters that may aid in the expeditious disposition of the proceeding;

(3) Require parties and amici curiae to state their position with respect to the various issues in the proceeding;

(4) Administer oaths and affirmations;

(5) Rule on motions, and other procedural matters pending before him;

(6) Regulate the course of the hearing and conduct of counsel at the hearing;

(7) Examine witnesses and direct witnesses to testify;

(8) Receive, rule on, exclude or limit evidence and testimony;

(9) Fix the time for filing motions, petitions, briefs, or other matters pending before him;

(10) Issue findings of fact and of law, conclusions, recommendations and proposed decisions; and

(11) Take any action authorized by this rule of procedure or in conformity with the provisions of Article II of Act 176 of 1977 (Administrative Procedures) and the insurance laws of South Carolina.

EE. Statement of position and briefs: The presiding officer may require parties and amici curiae to file written statements of position prior to the beginning of a hearing. The presiding officer may also require the parties to submit briefs.

FF. Evidentiary purpose:

(1) Hearings shall be held for the purpose of receiving factual evidence and expert opinion testimony related to the issues in the proceeding. Arguments will not be received in evidence; rather they should be presented in statements, memoranda, or briefs, as determined by the presiding officer. Brief opening statements, as to a party's position and what he intends to prove, may be made at hearings.

(2) Hearings for the reception of evidence will be held only in cases where issues of fact must be resolved or when required by law. In any case where it appears from a respondent's answer to the petition, from his failure to timely answer, or from his admissions or stipulations in the record, that there are no matters of material fact in dispute, the presiding officer may enter an order so finding, vacating the hearing date if one has been set, and fixing the time for filing briefs under WW below. Thereafter, the proceedings shall continue to a conclusion in accordance with WW through BBB below. The presiding officer may allow an interlocutory appeal to the Insurance Commissioner from such an order in accordance with TT below.

GG. Testimony: Testimony shall be given orally under oath or affirmation by witnesses at the hearing; but the presiding officer may, in his discretion, require or permit direct testimony of any witness to be prepared in writing and served on all parties in advance of the hearing. Such testimony may be adopted by the witness at the hearing, and filed as part of the record thereof. Unless authorized by the presiding officer, witnesses will not be permitted to read prepared testimony into the record. Except as provided in II and JJ below, witnesses shall be available at the hearing for cross-examination.

HH. Exhibits: Proposed exhibits shall be exchanged and marked for identification at a pre-hearing conference, or otherwise prior to the hearing if the presiding officer so requires. Proposed exhibits not so exchanged and marked may be denied admission as evidence. The authenticity of all proposed exhibits exchanged prior to a hearing will be deemed admitted unless written objection thereto is filed prior to the hearing or unless good cause is shown at the hearing for failure to file such written objection.

II. Affidavits: An affidavit is admissible in evidence subject to the following qualifications. Unless the presiding officer fixes other time periods, affidavits shall be filed and served on the parties not later than ten days prior to the hearing; and not less than five days prior to hearing a party may file and serve written objection to any affidavit on the ground that he believes it necessary to test the truth of assertions therein at the hearing. In such event, the assertions objected to will not be received in evidence unless the affiant is made available for cross-examination at the hearing, or the presiding officer determines that cross-examination is not necessary for the full and true disclosure of facts referred to in such assertions. Notwithstanding any objection, however, affidavits may be considered in the case of any respondent who waives a hearing.

JJ. Depositions: Upon such terms as may be just, for the convenience of the parties or of the Department, the presiding officer may authorize or direct the testimony of any witness to be taken by deposition.

KK. Admissions as to facts and documents: Not later than fifteen days prior to the scheduled date of the hearing except for good cause shown, or prior to such earlier date as the presiding officer may order, any party may serve upon an opposing party a written request for the admission of the genuineness and authenticity of any relevant documents described in and exhibited with the request, or for the admission of the truth of any relevant matters of fact stated in the request. Each of the matters of which an admission is requested shall be deemed admitted, unless within a period designated in the request (not less than ten days after service thereof, or within such further time as the presiding officer or the Chief Insurance Commissioner if no presiding officer has yet been designated may allow upon motion and notice) the party to whom the request is directed serves upon the requesting party a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny such matters. Copies of any request for admission and answers thereto shall be served on all parties. Any admission made by a party to such request is only for the purposes of the pending proceeding, or any proceeding or action instituted for the enforcement of any order entered therein, and shall not constitute an admission by him for any other purpose or be used against him in any other proceeding or action.

LL. Evidence: Irrelevant, immaterial, unreliable, and unduly repetitious evidence will be excluded.

MM. Cross-examination: A witness may be cross-examined on any matter material to the proceeding without regard to the scope of his direct examination. Objections to testimony of a witness on direct examination need not be reserved and failure to reserve an objection, on cross-examination of a witness, shall not be deemed to be a waiver of any objection made during the witness's direct examination.

NN. Unsponsored written material: Letters expressing views or urging action and other unsponsored written material regarding matters in issue in a hearing will be placed in the correspondence section of the docket of the proceeding, but shall not be deemed to be part of the evidence or record in the hearing.

OO. Objections: Objections to evidence shall be timely and briefly state the ground relied upon.

PP. Exceptions to rulings of presiding officer unnecessary: Exceptions to rulings of the presiding officer are unnecessary. It is sufficient that a party, at the time the ruling of the presiding officer is sought, makes known the action which he desires the presiding officer to take, or his objection to an action taken and his grounds therefor.

QQ. Official notice: If official notice is taken or is to be taken of a material fact not appearing in the evidence of record, any party, on timely request, shall be afforded an opportunity to show the contrary.

RR. Public document items: If there is offered, in whole or in part, a public document, such as an official report, decision, opinion, or published scientific or economic statistical data issued by the executive department of the State of South Carolina or its subdivisions, legislative agencies or committees, administrative agencies of the Federal Government (including Government-owned corporations), or a similar document issued by the State of South Carolina or its agencies, and such document, or part thereof, has been shown by the offeror to be reasonably available to the public, such document need not be produced or marked for identification, but may be offered for official notice, as a public document item by specifying the document and relevant part thereof.

SS. Offer of proof: An offer of proof made in connection with an objection taken to any ruling of the presiding officer rejecting or excluding proffered oral testimony shall consist of a statement of the substance of the evidence which counsel contends would be presented by such testimony; and, if the excluded evidence consists of evidence in documentary or written form or of reference to documents or records, a copy of such evidence shall be marked for identification and shall accompany the record as the offer of proof.

TT. Interlocutory Appeals: Rulings of the presiding officer may not be appealed to the Chief Insurance Commissioner prior to the consideration of the entire proceeding except with the consent of the presiding officer and where he certifies on the record or in writing that the allowance of an interlocutory appeal is clearly necessary to prevent exceptional delay, expense, or prejudice to any party, or substantial detriment to the public interest. If such an appeal is allowed, any party may file a brief with the Chief Insurance Commissioner within such period as the presiding officer directs. No oral argument will be heard unless the Chief Insurance Commissioner directs otherwise.

UU. Official transcript: The Department will designate the official reporter for all hearings. The official transcripts of testimony taken, together with any exhibits, briefs, or memoranda of law filed therewith shall be filed with the Department Hearing Clerk. Transcripts of testimony in hearings may be obtained from the official reporter by the parties at rates not to exceed the maximum rates fixed by rules of the Supreme Court of the State of South Carolina for transcripts furnished by official court reporters in the courts of this State. Upon notice to all parties, the presiding officer may authorize and direct corrections to the transcript which involve matters of substance.

VV. Record for decision:

(1) The record, in a contested case, shall include:

(a) All pleadings, motions, intermediate rulings and depositions;

(b) Evidence received or considered;

(c) A statement of matters officially noted;

(d) Questions and offers of proof, objections and rulings thereon;

(e) Proposed findings and exceptions;

(f) Any decision, opinion or report by the officer presiding at the hearing; and

(g) The transcript, if any, of any oral proceedings, or any part thereof, transcribed upon request of any party or by direction of the presiding officer or the Chief Insurance Commissioner.

WW. Posthearing briefs; proposed findings and conclusions:

(1) The presiding officer shall fix the time for filing posthearing briefs, which may contain proposed findings of fact, conclusions of law, recommendations, and, if permitted, reply briefs.

(2) Briefs should include a summary of the evidence relied upon together with reference to exhibit numbers and pages of the transcript, if any, with citations of the authorities relied upon.

(3) Oral proceedings, or any part thereof, shall be transcribed on request of any party or by direction of the presiding officer or the Chief Insurance Commissioner.

XX. Decisions following hearing: Upon expiration of the time allowed for submission of posthearing briefs, the presiding officer shall make a report and certify the entire record, including his findings of fact, conclusions of law, recommendations and proposal for decision to the Chief Insurance Commissioner. Findings of fact shall be based exclusively on the evidence and on matters officially noticed. A copy of the presiding officer's report, findings, conclusions, recommendations and proposal for decision shall be served upon all parties, and amici, if any.

YY. Exceptions and briefs to presiding officer's report: Within ten days after the mailing of the presiding officer's report, any party may file exceptions to the report, findings of fact, conclusions of law and recommendations and proposal for decision, with the Chief Insurance Commissioner. Briefs of the parties, and amici, if any, shall be filed within thirty days after mailing of exceptions.

ZZ. Review by Chief Insurance Commissioner: Upon the filing of such exceptions, the Chief Insurance Commissioner shall review the record and report of the presiding officer and shall issue a written order. The order or decision of the Chief Insurance Commissioner shall become a "final decision" within the meaning of Section 8, Article II of Act 176 of 1977 upon the mailing of such order or decision. All final decisions shall be served on all parties, and amici, if any.

AAA. Oral argument to the Chief Insurance Commissioner:

(1) If any party desires to argue a case orally, he shall make such request in writing. The Insurance Commissioner may grant or deny such requests in his discretion. If granted, notice of oral argument shall be served on all parties. The notice will set forth the order of presentation, the amount of time allotted, and the time and place for argument. The names of persons who will argue must be filed with the Department Hearing Clerk not later than five days before the date set for oral arguments.

(2) The purpose of oral arguments is to emphasize and clarify the written argument in the briefs. Reading at length from a brief or other texts is not favored. Participants should confine their arguments to points of controlling importance and to points upon which exceptions have been filed. Consolidations of appearances at oral arguments by parties taking the same side will permit the parties' interests to be presented more effectively in the time allotted.

(3) Pamphlets, charts, and other written material may be presented at oral arguments only if such material is limited to facts already in the record and is served on all parties and filed with the Department Hearing Clerk at least five days before the argument.

BBB. Service on amici curiae: All briefs, exceptions, memoranda, requests, orders, and decisions required to be served upon the parties shall be served upon amici curiae at the same times and in the manner required for service on parties. Any written statement of position and trial briefs required of parties under EE above shall be served on amici.

CCC. Conduct: Parties and their representatives are expected to conduct themselves with honor and dignity and observe judicial standards of practice and ethics in all proceedings. They should not indulge in offensive personalities, unseemly wrangling, or intemperate accusations or characterizations. A representative of any party shall observe the traditional responsibilities of lawyers as officers of the court and use his best efforts to restrain his client from improprieties in connection with a proceeding.

DDD. Improper conduct: It is improper for any interested person to attempt to sway the judgment of the Insurance Commissioner with respect to any proceeding by undertaking to bring pressure or influence to bear upon any officer having a responsibility for a decision in the proceeding, or his decisional staff. It is improper for any interested person or persons or any members of the Department's staff or the presiding officer to give statements to communications media, by paid advertisement or otherwise, designed or intended to influence the judgment of any officer having a responsibility for a decision in the proceeding, or his decisional staff. It is improper for any person to solicit communications from or to any such officer, or his decisional staff, other than proper communications by parties or amici curiae.

EEE. Ex parte communications: Article II, Section 6 of Act 176 of 1977 governs ex parte communications in contested cases. A request for expeditious treatment of a matter pending before the presiding officer or the Chief Insurance Commissioner is deemed a communication on the merits, and is proper only after notice thereof is given to all parties. A request for information which merely inquires about the status of a proceeding without reference to the factual or legal issues is not deemed an ex parte communication, although such requests should be directed to the Department Hearing Clerk. Communications with respect to minor procedural matters or inquiries or emergency requests for extensions of time are not deemed ex parte communications.

FFF. Definitions:

(1) "Department" means the South Carolina Department of Insurance.

(2) "Notice" means notice of an opportunity for hearing.

(3) "Party" means a respondent and the South Carolina Department of Insurance.

(4) "Respondent" means the person or agency named in and upon whom a notice of opportunity for hearing and petition are served.

(5) "Commissioner" or "Chief Insurance Commissioner" means the Chief Insurance Commissioner of the State of South Carolina.

Notes

S.C. Code Regs. 69-31