Insurance

Administration

Rule R590-160: Adjudicative Proceedings

Effective Date: 10/11/2022

Admin. Code Reference: R590-160

Rule Type: Current Rule

R590. Insurance, Administration.

R590-160. Adjudicative Proceedings.

R590-160-1. Authority.

This rule is promulgated by the commissioner pursuant to Sections 31A-2-201, 63G-4-102, and 63G-4-203.

R590-160-2. Purpose and Scope.

(1) The purpose of this rule is to establish procedures governing the designation and conduct of an adjudicative proceeding before the commissioner.

(2)(a) This rule applies to:

(i) an adjudicative proceeding commenced by a complainant;

(ii) an adjudicative proceeding commenced by a petitioner;

(iii) a respondent in an adjudicative proceeding; and

(iv) an intervenor in an adjudicative proceeding.

(b) This rule does not apply to a public hearing under Section 63G-3-302.

(d) The commissioner may permit a deviation from this rule for good cause.

R590-160-3. Definitions.

Terms used in this rule are defined in Sections 31A-1-301 and 63G-4-103. Additional terms are defined as follows:

(1) "Commissioner," for purposes of this rule, means Utah's insurance commissioner or a presiding officer designated by Utah's insurance commissioner.

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

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

(4) "Licensee" means a person who is issued a license or certificate, or is registered under Title 31A, Insurance Code.

(5) "Petitioner" means a person, other than the department, who commences an adjudicative proceeding.

(6) "Pleading" means a document authorized to be filed under Title 63G, Chapter 4, Administrative Procedures Act, and this rule.

R590-160-4. Designations of Proceedings.

(1) The commissioner designates each of the following as an informal adjudicative proceeding:

(a) denial of an application for a license or a certificate of authority;

(b) disapproval of a rate or form filing;

(d) a matter involving a technical or minor violation of law; or

(e) the entry of a stipulated pleading.

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

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

(4) The commissioner shall conduct an informal or formal adjudicative proceeding.

R590-160-5. Rules Applicable to Any Adjudicative Proceeding.

The following rules apply to an adjudicative proceeding:

(1)(a) The time within which an act is completed is computed by excluding the first day and including the last day, unless the last day is a Saturday, Sunday, or a legal holiday.

(b) If the last day is a Saturday, Sunday, or a legal holiday, 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.

(2) A party to a proceeding is named in the caption as petitioner, complainant, respondent, or intervenor.

(3) Representing a party and entering an appearance.

(a) Representing a party.

(i) An attorney who is an active member, in good standing, of the Utah State Bar or an attorney with an active license from another jurisdiction may represent a party.

(ii) An individual who is a party to an adjudicative proceeding may self-represent.

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

(iv) A general partner may represent a partnership.

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

(vi) The legal, registered owner of a business conducted under an assumed name is considered the legal party in interest and only the legal party in interest or an attorney may represent the business.

(b) Entering an appearance.

(i) A party's attorney or representative enters an appearance by:

(A) filing a notice of agency action;

(B) filing a request for agency action;

(D) filing a notice of appearance; or

(E) orally stating an appearance at a hearing.

(ii) The appearance shall include the attorney's or representative's name, address, email, telephone number, and the party's position or interest in the proceeding.

(4) Pleadings.

(a) A pleading shall be in substantially the following form:

(i) centered heading, BEFORE THE UTAH INSURANCE COMMISSIONER;

(ii) left side, identification of parties;

(iii) right side, title of pleading;

(iv) right side, name of presiding officer; and

(v) right side, docket number.

(b) A pleading shall clearly and concisely present a party's position or request, and the grounds in support.

(d) Signing a pleading.

(i) A pleading shall be signed and dated by the party, the party's attorney, or other authorized representative, and shall include the signer's address, telephone number, and email.

(ii) The signature in Subsection (4)(d)(i) certifies that:

(A) the signer has read the pleading; and

(B) to the best of the signer's knowledge and belief, there are grounds to support the pleading.

(e) Motion.

(i) A motion, other than a motion made orally at a hearing, shall be in writing and shall state the basis for relief.

(A) An affidavit, declaration, or other document may be submitted in support of a motion.

(B) The commissioner may decide a motion with or without a hearing.

(ii) A motion shall be filed and served at least ten days before the date set for the hearing.

(5)(a) A pleading is filed with the commissioner by mail or by submitting a PDF to uidadmincases@utah.gov.

(b) A pleading is filed on the date received.

(6) Service of a pleading.

(a) A copy of a pleading filed with the commissioner shall be served on each party to the proceeding.

(b) The department may be served with a summons, complaint, petition, or other pleading that commences a proceeding by sending a copy of the document by certified mail to the commissioner.

(c) The department may be served with any other pleading by ordinary mail or by sending a PDF to the email address of the attorney representing the department in the proceeding.

(d) A licensee or a certificate holder may be served by:

(i) regular mail;

(ii) sending a PDF to the current email address provided to the department by the licensee under Rule R590-258; or

(iii) sending a PDF to the current email address set forth in the pleading last filed by or on behalf of the licensee.

(e) A pleading shall include a certificate of service that:

(i) identifies the person that was served with the pleading;

(ii) contains the service email address or mailing address; and

(iii) certifies the date and method of service.

(f) When an attorney or other authorized representative represents a party, service upon the attorney or representative constitutes service upon the party.

(7) Disqualification of a presiding officer designated by the commissioner.

(a) A party may move to disqualify a presiding officer by filing a motion with the commissioner alleging the basis for disqualification.

(b) The commissioner may request additional briefing, evidence, or testimony as necessary to decide the motion.

(i) An adjudicative proceeding is stayed until the commissioner decides the motion.

(ii) A party may not appeal the commissioner's decision regarding the motion to disqualify until a final order is entered on the motion.

(d) If a presiding officer is disqualified, the commissioner shall appoint another presiding officer.

(8) Ex parte contact may not occur between the commissioner and a party, the party's attorney, or the party's representative.

(9) An issue of fact in an adjudicative proceeding is decided by a preponderance of the evidence.

(10) Burden of proof.

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

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

(11) Dismissing an adjudicative proceeding.

(a) A complainant or a petitioner may dismiss an adjudicative proceeding by filing:

(i) a notice of dismissal before the respondent serves a response to the initial pleading; or

(ii) a stipulation of dismissal signed by each party that has appeared.

(b) Except as provided in Subsection (11)(a), the commissioner, by order, may dismiss an adjudicative proceeding at a party's request only on terms the commissioner considers proper.

(c) If a complainant or a petitioner fails to prosecute the adjudicative proceeding, the commissioner may dismiss the proceeding after applying the standard for dismissal for failure to prosecute under Utah Rules of Civil Procedure, Rule 41.

R590-160-6. Rules Applicable to a Formal Adjudicative Proceeding.

(1) A hearing in a formal adjudicative proceeding shall comply with Section 63G-4-206.

(2) The commissioner may direct the parties to participate in a prehearing conference.

(3) The commissioner may grant a motion to continue a proceeding for good cause.

(4) Unless ordered closed by the commissioner for good cause, a hearing in a formal adjudicative proceeding is open to the public.

(5) Telephonic testimony.

(a) The commissioner may, when the witness's identity can be established with reasonable certainty, take testimony telephonically.

(b) If telephonic testimony is taken, a party may hear the testimony and examine or cross-examine the witness.

(6) Record of a hearing.

(a) Recording.

(i) A record of a hearing is made by audio recording.

(ii) The commissioner shall provide a copy of the recording at the request and expense of a party other than the department.

(b) Transcript of a hearing.

(i) On reasonable notice to and approval from the commissioner, a party may employ a certified court reporter to record and transcribe a hearing.

(ii) The party seeking approval to use a court reporter shall pay for the reporter and file the original transcript with the commissioner at no cost to the department.

(iii) A party requesting a copy of the transcript may purchase the transcript copy from the reporter.

(7) Subpoenas.

(a) A subpoena is issued and served under the Utah Rules of Civil Procedure, Rule 45.

(b) A party requesting a subpoena shall pay a witness the same fee and mileage the law allows for a district court.

(8) Discovery may be conducted by:

(a) the parties' agreement; or

(b) the commissioner's order.

R590-160-7. Rules Applicable to an Informal Adjudicative Proceeding.

(1)(a) The department may commence an informal adjudicative proceeding by issuing a Notice of Agency Action and Order under Subsection R590-160-4(1).

(b) The order in Subsection (1)(a) is based on information contained in:

(i) an affidavit;

(ii) a declaration; or

(iii) the department's files.

(c) The order in Subsection (1)(a) constitutes a proposed order that becomes final 15 days after service on the respondent unless a written request for a hearing is received before the expiration of 15 days.

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

(3) When a hearing is requested in an informal adjudicative proceeding, a notice of a prehearing conference is issued stating the matters to be decided and giving notice of the prehearing scheduling conference's date, time, and location.

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

(5)(a) At a hearing in an informal adjudicative proceeding, the commissioner may receive, regarding the issues to be decided, the following;

(i) testimony;

(ii) proffer of evidence;

(iii) affidavit;

(iv) declaration; or

(v) argument.

(b) The commissioner may issue a subpoena requiring a witness's attendance or the production of necessary evidence.

R590-160-8. Agency Review.

(1)(a) Agency review of an adjudicative proceeding, except an informal adjudicative proceeding that becomes final without a request for a hearing under Subsection R590-160-7(1), is available to a party to a proceeding by filing a request for agency review with the commissioner within 30 days of the date of the order.

(b) Failure to seek agency review is a failure to exhaust administrative remedies.

(2) Agency review shall comply with Section 63G-4-301.

(3)(a) The commissioner or the commissioner's designee shall conduct the review.

(b) A designee may not be the presiding officer who issued the decision under review.

(d) The commissioner will make the final decision and sign the order.

(4) Content of a request for agency review.

(a) A request for agency review shall comply with Subsection 63G-4-301(1)(b), and shall include the following:

(i) a copy of the order that is the subject of the request;

(ii) the factual basis for the request, including:

(A) citation to the record of the formal adjudicative proceeding; and

(B) clear reference to evidence or a proffer of evidence in an informal adjudicative proceeding;

(iii) the legal basis for the request, including citation to supporting authority;

(iv) for a challenge to a finding of fact in a formal adjudicative proceeding, the reason that the finding is not supported by substantial evidence based on the entire record; and

(v) for a challenge to a finding of fact in an informal adjudicative proceeding, the reason that the finding is not supported by substantial evidence based on the evidence received or proffered.

(b) A party challenging a finding of fact in a formal adjudicative proceeding shall:

(i) order a transcript of the recording relevant to the finding;

(ii) certify that a transcript is ordered;

(iii) file the transcript with the commissioner or the commissioner's designee;

(iv) serve a copy of the transcript on each party; and

(v) pay the cost of preparing the transcript.

(5) Memoranda.

(a)(i) A party requesting agency review shall submit a supporting memorandum with the request.

(ii) If a transcript is necessary to conduct agency review, a supporting memorandum shall be filed no later than 15 days after the service of the transcript on the opposing party.

(b) An opposing memorandum shall be filed no later than 15 days after the supporting memorandum is filed.

(d) The commissioner or the commissioner's designee may order a party to submit additional memoranda to assist in conducting agency review.

(6) Request for a stay.

(a) On motion by a party and for good cause, the commissioner or commissioner's designee may stay the presiding officer's order during the pendency of agency review.

(b) A motion for a stay shall be made in writing and may be made at any time during the pendency of agency review.

(7)(a) A party may request oral argument in the party's initial pleading.

(b) The commissioner or the commissioner's designee may grant oral argument if requested in a party's initial pleading.

(8) Failure to comply with Section R590-160-8 may result in the commissioner or the commissioner's designee dismissing the request for agency review.

R590-160-9. Sanctions.

(1)(a) The commissioner may sanction a party, a party's representative, a witness, or a witness's representative for:

(i) contemptuous conduct;

(ii) disobedient conduct; or

(iii) failure to comply with this rule or a lawful order.

(b) A sanction may include:

(i) excluding evidence;

(ii) dismissing one or more claims;

(iii) striking a pleading or a portion of a pleading;

(iv) entering a default judgment; or

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

(2) The commissioner may take reasonable steps to control the conduct of an adjudicative proceeding.

R590-160-10. Severability.

If any provision of this rule, R590-160, or its application to any person or situation is held invalid, such invalidity does not affect any other provision or application of this rule which can be given effect without the invalid provision or application. The remainder of this rule shall be given effect without the invalid provision or application.

KEY: insurance

Date of Last Change: October 11, 2022

Notice of Continuation: September 15, 2023

Authorizing, and Implemented or Interpreted Law: 31A-2-201; 63G-4-102; 63G-4-203