Mercury Life and Health Company

Text (OCR of the scan; may contain errors)

the decision. While we concur in the examiner’s recommendation in the matter, we do not believe it is necessary for the Commission to rule directly on respondents’ motion. Therefore, as to the motion to dismiss, the matter is returned to the examiner for his determination.

Respondents’ next motion certified by the examiner is a motion to extend time for filing a consent order. In this motion, respondents assert that because of alleged illness of individual respondent Leonard Hyatt, it was impossible for any of the respondents or their attorneys to avail themselves of the consent order procedure set forth in Part 2 of the Commission’s Rules. Complaint counsel, in his answer to this motion, while pointing out that respondents did not give notice of Mr. Hyatt’s illness until October 18, 1966, and did not indicate a desire to enter a consent negotiation until October 19, 1966, states that it appears the public interest would be best served by granting the motion. The hearing examiner recommends that the motion to extend time for filing a consent order be granted. This matter is now before the hearing examiner for adjudication in accordance with the Commission’s Rules of Practice for Adjudicative Proceedings. It would be inappropriate for the Commission, at this time, to extend the time for the filing of a consent order and so in effect to return the matter to its precomplaint posture. The Commission may consider whether or not it will waive § 2.4(d) of its Rules if and when faced with that preposition. Thus, the motion, so far as it is merely a request to extend time for the filing of a consent order, will be denied.

In the third and final motion certified by the examiner, the respondents move to postpone the hearing on the basis that Leonard Hyatt, the individual respondent, is recovering from a severe and disabling heart condition; that it is medically impossible for him to appear and participate in any type of legal proceeding at this time without endangering his health and life; and that respondents assertedly find it impossible to take part in the proceeding until Mr. Hyatt has sufficiently recovered from his illness to advise and assist the attorneys representing the respondents and to testify at the hearings. Complaint counsel opposes such motion and the hearing examiner recommends that it be denied.

“1 Relevant to this is a provision in § 3.6(e) of the Commission's Rules of Practice, which states that when a motion to dismiss is made at the close of the evidence offered in support of a complaint based upon an alleged failure to establish a prima facie case, the examiner may, if he so elects, defer ruling thereon until the close of the case for the reception of the evidence. . .

INTERLOCUTORY ORDERS, ETC. 1843

The same motion was made to the hearing examiner in the course of the hearings held on October 19, 1966. At that time the examiner carefully considered this issue and expressed his concern, among other things, that there is no indication at what time Mr. Hyatt will be available to participate in the case. He denied the motion but stated that it was with the understanding that he would subsequently entertain a motion to strike any and all of the evidence if it appears to be prejudicing or endangering any of respondents’ rights. We believe he has made a sound determination in the matter, making adequate provision for the protection of the rights of respondents. Thus, we will accept his recommendation thereon and deny the request for postponement. Accordingly,

It is ordered, That respondents’ motion to extend time for filing a consent order be, and it hereby is, denied.

It is further ordered, That respondents’ motion for postponement of hearings be, and it hereby is, denied.

It is further ordered, That as to the motion to dismiss this matter be returned to the hearing examiner for his appropriate determination thereon.

DEVCON CORPORATION ET AL.

Docket C-607. Order and Opinion, Dec. 16, 1966