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Washington State Office of the Insurance Commissioner

Frequently asked questions about hearings

 

How do I demand a hearing?

RCW 48.04.010 permits you to demand a hearing to contest an Order or other act or threatened act of the Commissioner. You must demand a hearing by mailing or delivering 1) a Demand for Hearing, in letter or other written form, very briefly stating why you disagree with the Commissioner’s Order (or other action or threatened action) and how you are harmed by it; and 2) if possible, please also include a copy of the Order you are contesting or questioning, or any letter or other written material that shows the Commissioner’s act or threatened act. Your letter must be received (not postmarked) by the Office of the Insurance Commissioner within 90 days after the date of the Order or communication from the Commissioner or your Demand for hearing will be invalid and the Order or other action will stand. If your Demand for Hearing is received before the effective date of the Order or other action, the requirements and penalties contained in the Order or other action will be stayed (postponed) until a final decision is made by the administrative law judge after your hearing. Your letter should be mailed to the Deputy Commissioner who signed the Order and delivered to Office of the Insurance Commissioner, P.O. Box 40257, Olympia, Washington 98504-0257, who will forward it to the Chief Hearing Officer in the Hearings Unit who will be responsible for the proper handling of your file. Please contact the Hearings Unit with any questions you may have.

What happens once a Demand for Hearing is received? Does the Order (or other action) of the Commissioner that I am appealing still go into effect, or does is there a hold on it until after my hearing?

When an individual or company mails or delivers a Demand for Hearing letter to the Commissioner to question or challenge an Order (or other action) that the Commissioner has taken, it is promptly transferred to the Chief Hearing Officer in the Hearings Unit. At that time, your appeal is handled by the Hearings Unit, which will contact you within one week to schedule a prehearing teleconference to talk to you (and/or your attorney if you have one) and the Commissioner’s representative. Also, the Order might be “stayed.” A “stay” means that the Commissioner’s Order will not go into effect (and cannot be enforced by the Commissioner) against that individual or company until that individual or company has an administrative hearing before a Judge, who will conduct the hearing and make a final decision about the Commissioner’s Order. As stated in RCW 48.04.020, if the individual or company sends a Demand for Hearing to the Commissioner before the effective date of the Order, which will be stated in that Order, an automatic stay is granted until the outcome of a hearing, at which time the Judge may uphold, modify, or overturn the Order. The Judge also may grant a discretionary stay at the request of the individual or company depending on the situation. When a stay is granted, the Licensee is permitted to continue doing business unless or until the Judge orders otherwise. You can keep up with the status of a particular Licensee’s status by reviewing the documents filed in the proceedings by clicking here.

What is a prehearing conference?

Once your have filed your Demand for Hearing, the administrative law judge will schedule a prehearing conference, which will be held by telephone, and will include:

  1. you, and/or your representative if you wish;
  2. a person who represents the Commissioner in this matter; and
  3. the administrative law judge who will be hearing your case.

The purpose of the prehearing conference is to discuss basic procedures to be followed before, during and after the hearing, as well as any issues or concerns which have arisen or which you believe will arise in your preparation for the hearing. No final decisions will be made during the prehearing conference. The parties may anticipate, however, that the hearing date will be scheduled during the prehearing conference, with an effort made to accommodate the needs to both parties.

Following the prehearing conference, a Notice of Hearing will be entered advising you of the date scheduled for the hearing. Although it is hoped that all of your questions will be answered during this prehearing conference, you may contact the Hearings Unit at any time before your hearing and ask for additional prehearing conferences if you have additional questions or concerns which you would like to discuss with the judge and the Commissioner’s attorney.

What will my hearing be like?

Your hearing is somewhat similar to a trial in court, with witnesses, exhibits and rules of evidence, although it is very much more relaxed and flexible. Your hearing will be presided over by an administrative law judge who handles cases related to actions of the Commissioner. Normally, an attorney represents the Commissioner. You may be represented by an attorney, but if you are, you must pay for your own attorney. You may choose to represent yourself. However, an attorney may be better able to present your side.

When the hearing begins, each side may present an opening statement. This tells the judge what that side intends to prove. Each side can then offer relevant evidence to prove its case.

Evidence can be testimony taken in the form of live witnesses who appear under oath, or telephonic witnesses who are sworn and then testify by telephone. Evidence can also be presented in the form of written documents, such as business records. All of this evidence must be determined by the judge to be reliable before it is admitted.

The agency usually presents its evidence first. The agency attorney will ask its witness questions (direct examination). When the attorney is finished, it will be your turn to ask questions of that witness (cross-examination). The agency attorney will have a second chance to ask questions (redirect) and then you will have a second chance (recross).

After the agency has presented its witnesses, it will be your turn. You may make a statement yourself and call your witnesses. As you finish with each of your witnesses (and your testimony), the Commissioner’s attorney will cross-examine. You may be a witness for yourself, in fact sometimes the aggrieved party is his or her only witness.

As stated before, you will have a second chance to ask questions of each witness. Even if you choose not to testify, the agency attorney may cross-examine you.

Remember: Before the hearing closes, you must submit all the evidence you want the judge to consider.

After all testimony has been heard, each side can make a closing argument. Usually the agency goes first, and you go second. The party that goes first has the opportunity to make the last comments. Closing argument is your chance to sum up the evidence and tell the judge why you should prevail in your case. It can address only those facts brought out in testimony of witnesses or in documents received into evidence. In some cases, the judge may want the parties to submit written, instead of oral, argument. If so, a schedule will be set up to mail the written arguments.

Because the goal in these hearings is to present all pertinent evidence to the judge so that the judge can make the best decision possible, questions are even asked and answered during the hearing whether you represent yourself or you hire an attorney. The judge will answer your questions, and may also ask you questions about the substance of the case.

What do I need to prove?

This depends upon what kind of case it is. For example, if the Commissioner has issued a disciplinary action against an agent or broker, generally the agency has the burden of proof to prove that the disciplinary action was reasonable. This means that the agency must establish that you violated the laws or regulations by proving the facts that are alleged against you.

Even when the Commissioner has the burden of proof, you should prepare to offer evidence of your good character and conduct, mitigation, rehabilitation and evidence refuting the charges, as appropriate.

What kind of evidence will I need for the hearing?

Depending on your case, you may want to bring witnesses who know about the issues involved with the charges against you, or arrange for those witnesses to testify by telephone (first ask the judge at prehearing conference for permission for witnesses to testify over the telephone). If there are documents, such as contracts, business records or checks that help prove your side, try to bring the original and two copies. Items meant to be considered must be left with the judge to be included in the hearing record. You may substitute reliable copies of those items in place of the originals if necessary.

How do I get records from a business?

If you are a party to a hearing, you have the right to subpoena from individuals, businesses and government agencies relevant records or other things to be produced at the hearing. To do this, you may ask the judge, at a prehearing conference, as long before the hearing as possible, to issue the subpoena for you.

How do I get a witness to come to the hearing?

A witness can come voluntarily to the hearing. However, if the person is unwilling to come, or you are not comfortable asking that person to come, you must ask the judge (again, as long before the hearing as possible) to issue a subpoena to that person.

Is it okay to bring letters instead of witnesses?

Some letters and other documents may be admitted in evidence for limited purposes, but generally it is better to bring witnesses who can help present your side of the case and answer any questions raised. The judge will not speak with witnesses, except at the hearing itself. If you do choose to offer letters or affidavits from people, it is best to have them sworn to by the author of the letter or affidavit.

Remember: This hearing is your chance to tell the judge your side. It is important to have your witnesses present at the hearing to testify, or, if they cannot be present, to present sworn letters or affidavits.

If I forget something, can I send it later to the judge?

Your chance to present evidence is at the hearing. Upon your request at hearing, however, the judge may allow you to present witnesses or documents into evidence later if there is a good reason that the witnesses/documents could not be available at the hearing.

Is there a way to settle this without a hearing?

Cases sometimes settle without going to hearing. Contact the agency attorney to see if you can work something out. You may also contact the Hearings Unit for possible assistance, including requesting mediation.

What if I can’t be there on the day set?

Because you will have been involved in setting the hearing date at the prehearing conference, the judge is reluctant to change a hearing date. To do so, you must show good cause. If you cannot attend on the date and at the time shown, you must contact the Hearings Unit as soon as you know of the problem. To request a change of date, you must file a written statement with a copy to the agency attorney, explaining the reasons for the change. The sooner you make your request, the more likely it will be granted.

Remember: You must file a Demand for Hearing in order to have a hearing.

What if I don’t attend?

If you request a hearing and do not attend the hearing, the agency can still proceed with the case against you. (If you do not request a hearing, the agency most likely will proceed against you in your absence.)

What if I need an interpreter?

If you or a witness need a sign or language interpreter, immediately contact the Hearings Unit so that a certified interpreter can be provided. Normally, it is not sufficient to bring a friend or relative to interpret for you.

Will the hearing location be accessible to people with disabilities?

Hearing locations are to be accessible to persons with disabilities. However check in advance with the Hearings Unit so that they know of your needs. In addition, if you know persons who plan to attend have special needs that require reasonable accommodation, please contact the Hearings Unit as soon as possible, so arrangements can be made.



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