DocketNumber: No. CV97-0573695
Citation Numbers: 1998 Conn. Super. Ct. 2138
Judges: DiPENTIMA, J.
Filed Date: 2/24/1998
Status: Non-Precedential
Modified Date: 7/5/2016
This appeal is governed by the Uniform Administrative Procedure Act (UAPA), General Statutes §§
If, before the date set for hearing on the merits of an appeal, application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon conditions determined by the court. The agency may modify its findings and decision by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court.
Before ordering that the department take further evidence, this court must determine 1) that the additional evidence is material and 2) that there were good reasons for the failure to present the evidence in the department's original proceeding. The court need not address the first prong of this test because the plaintiff has failed to satisfy the second prong. CT Page 2140
The comptroller seeks to present the following additional evidence:
• The new policy and the minority interest are not fair and reasonable replacements for the Plaintiff's and other policyholder's ownership of the surplus (Testimony of Christian DesRochers and others);
• The Commissioner relied on flawed financial data in determining that the merger of BCBS-CT and Anthem would result in a financially strong company able to serve policyholders and those buying insurance (Testimony of Christian DesRochers, FSA, MAAA);
• The combined entity does not have sufficient capacity to write new premiums under current regulatory guidelines and has, in fact, already exceeded its capacity (Testimony of Christian DesRochers);
• Anthem is very highly leveraged and much weaker financially than the analysis relied upon by the Commissioner implies (Testimony of Christian DesRochers);
• There are presently cases pending in Kentucky and Ohio seeking charitable set asides for mergers already completed in those states; and a similar action has now been brought in Connecticut.
• If all of any of the charitable asides now being litigated in Kentucky, Ohio and in Connecticut are successful, Anthem will be in financial difficulty (Testimony of Christian DesRochers; Record; Townsend and Schupp Report); and
• The structure proposed in the merger leaves Connecticut insureds with a financially weak company that is answerable to a financially weak parent and it puts insureds and policyholders, including the Plaintiff, at risk (Testimony of Christian DesRochers).
She argues that these matters are material to the issue of whether the merger is fair and reasonable to the policyholders. In a prior ruling on the issue of aggrievement, this court found that the comptroller had pleaded and proved a possibility that an interest CT Page 2141 she had as a policyholder had been adversely affected. That finding was based upon the court's review of the record. Wyman v.Department of Insurance, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 573695 (November 25, 1997).
The comptroller claims that the second prong of §
For this reason and the reasons set forth in its contemporaneous decision on the motion in the companion appeal, the court finds that the comptroller has not shown good reason for her failure to present this testimony before the department in the proceeding below.
The motion is denied.
DiPentima, J.