Commonwealth v. National Council on Compensation Insurance

238 Va. 513
CourtSupreme Court of Virginia
DecidedNovember 10, 1989
DocketRecord No. 890111
StatusPublished
Cited by2 cases

This text of 238 Va. 513 (Commonwealth v. National Council on Compensation Insurance) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. National Council on Compensation Insurance, 238 Va. 513 (Va. 1989).

Opinion

Chief Justice Carrico

delivered the opinion of the Court.

On June 27, 1988, the National Council on Compensation Insurance (the National Council)1 applied to the State Corporation [515]*515Commission for approval of a 25.2% increase in the overall level of premiums charged for policies of workers’ compensation insurance. The Division of Consumer Counsel, Office of the Attorney General, filed notice of its intention to participate in the proceeding in opposition to the application.

On October 21, 1988, after two hearings, the Commission entered a final order approving a 5.7% rate increase. Consumer Counsel is here on an appeal of right. The sole question for decision is whether the Commission erred in limiting Consumer Counsel’s cross-examination of a staff witness who changed his testimony following the initial hearing on the National Council’s application. Finding that the Commission erred in this respect, we will reverse.

The witness in question, Philip O. Presley, president of an actuarial consulting firm, was retained by the Commission staff. In his prefiled testimony, he stated that an average increase in workers’ compensation rates of only 0.7 % was warranted. Two consultants retained by Consumer Counsel stated in their prefiled testimony that a 1.3% reduction in rates would be proper.

In the initial hearing on the rate-increase application, held September 14-15, 1988, Consumer Counsel, in an opening statement, pointed out that the staffs recommendation of “only a .7 percent increase” and Consumer Counsel’s proposal for a “reduction in the order of 1.3 percent” were “not too dissimilar.” Then, when staff-witness Presley testified and reiterated his recommendation for a rate increase of only 0.7% , Consumer Counsel elected not to cross-examine the witness. Upon conclusion of the hearing on September 15, 1988, the Commission took the matter under advisement.

On September 27, 1988, the Commission directed a letter to Consumer Counsel enclosing a copy of a letter the Commission had received from Presley. In his letter, Presley stated that he had made certain errors in his earlier computations and that revisions he had made would produce a rate increase of 5.7%, rather than 0.7%.

On September 28, Consumer Counsel filed “Comments on Corrections to Testimony of Philip O. Presley.” In the “Comments,” Consumer Counsel requested that Presley’s “amended testimony be stricken because [untimely filed]” and because “[n]o reasonable opportunity to prepare cross-examination ha[d] been afforded the parties.” The “Comments” also stated that the parties had not [516]*516been allowed a “reasonable opportunity ... to test the credibility of this amended testimony through rebuttal testimony or further cross-examination.”

Also on September 28, the Commission entered a final order approving a 5.7 % rate increase, reflecting the new percentage increase recommended by Presley. On September 30, Consumer Counsel filed a notice of appeal and a motion for suspension of the Commission’s final order. That same day, the Commission sua sponte entered an order suspending the order of September 28 and setting a hearing on October 7 “for the limited purpose of permitting [the] parties to cross-examine and offer rebuttal testimony with respect to the amended testimony and exhibits of Philip O. Presley.”

During the hearing on October 7, staff counsel examined Presley on the reason for his change in testimony. The witness stated that he had been misled by an unlabeled column of a financial exhibit included in the National Council’s original filing and that correction of his erroneous reading of the exhibit produced the higher recommendation for a rate increase. Presley admitted that he had changed his testimony after conferring not only with Commission staff but also with the National Council.

On cross-examination, Consumer Counsel sought to question Presley about the reasonableness of calculations shown in the National Council’s financial exhibits regarding yields on securities. Consumer Counsel also sought to question Presley about his possible bias resulting from prior “business dealings” with the National Council. When the propriety of this questioning was challenged on the ground that ample opportunity had been provided for cross-examination at the initial hearing, Consumer Counsel attempted to explain why cross-examination of Presley had been waived.

The Commission ruled, however, that, by electing not to cross-examine Presley at the September 14-15 hearing, Consumer Counsel waived the right to cross-examine him during the October 7 hearing except with respect to his amended testimony. Then, on October 21, the Commission entered a final order reaffirming its previous action in approving a 5.7 % increase in rates.2

[517]*517On appeal, the Commission3 concedes that participants in rate-making proceedings, albeit such proceedings are legislative in nature, are entitled to cross-examine witnesses and that the bias of an expert and the factors underlying his evaluation are relevant and material. The Commission also concedes that considerations of due process require it to grant consumers a fair hearing with a full opportunity for cross-examination.

The Commission argues, however, that it did not err in limiting Consumer Counsel’s cross-examination of staff witness Presley at the October 7, 1988 hearing. The Commission says that when Consumer Counsel declined at the hearing of September 14-15 to cross-examine Presley, Consumer Counsel knew the methodologies employed by the witness as well as his prior “business dealings” with the National Council.

The only difference between Presley’s original testimony and his amended version, the Commission opines, was not in methodology but “in the final result.” Hence, the Commission concludes, Consumer Counsel waived the right to question Presley further on methodology and bias.

We do not agree that Consumer Counsel waived the right to cross-examine Presley beyond the limits imposed by the Commission’s order of September 30. One of the key elements of the doctrine of waiver is that the party who is alleged to have waived a right must have had full “knowledge of the facts basic to the exercise of the right.” Employers Ins. Co. v. Great American, 214 Va. 410, 412-13, 200 S.E.2d 560, 562 (1973).

While Consumer Counsel may have known of the methodology Presley employed and even of his prior business dealings with the National Council, Consumer Counsel could not possibly have known that Presley would later admit he had erred in his computations to the extent of $25 million. Neither could Consumer Counsel possibly have known whether, in the event Presley [518]*518changed his testimony, his prior business dealings with the National Council may have prompted the change.

The Commission makes light of the explanation Consumer Counsel gave below for declining to cross-examine Presley at the September 14-15 hearing while insisting upon cross-examining him at the October 7 hearing. The explanation, in the words of Consumer Counsel, was that “[w]e deferred cross-examining Mr.

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