Section 1340-02-02-.17 - DEFAULT AND UNCONTESTED PROCEEDINGS(1) Default. A motion for default may be in writing or oral. (a) The failure of a party to attend or to participate in a prehearing conference, a party's non-attendance at a second setting of a hearing on the merits in a case or a party's non-attendance at another stage of contested case proceedings after notice thereof are each causes for holding such party in default pursuant to T.C.A. § 4-5-309.(b) The failure of a party to comply with any lawful order of the administrative judge that is necessary to maintain the orderly conduct of a hearing may be deemed a failure to participate in a stage of a contested case and be cause for a holding of default.(c) In any situation set out in subparagraphs (a) and (b) of this Rule, a motion may be made to hold the absent party in default and to enter an initial default order or to continue on an uncontested basis.(d) No default shall be entered against a claimant for failure to attend except upon proof, that the Legal Division has given notice of the hearing per Rule 1340-02-02-.06(2)(e).(e) Upon default by a party, an administrative judge may enter either an initial default order or an order for an uncontested proceeding. An order under this part must be in writing, with reasons given and appeal rights stated. Uncontested proceedings may go forward at the time of default. These orders must subsequently be filed with the Legal Division.(f) The defaulting party, no later than ten (10) days after service of an order may file a motion for reconsideration under T.C.A. § 4-5-317, requesting that the default be set aside for good cause shown, and stating the grounds relied upon. The administrative judge may enter an order pursuant to T.C.A. § 4-5-317. These orders by an administrative judge are reviewable by the commissioner.(g) No party shall be required by the administrative judge to call or inquire as to the whereabouts of a missing party.(h) A default shall be deemed effective as of the date and time that the party failed to appear after having been properly noticed to the hearing.(2) Effect of Default. (a) Upon a default by the agency, a claimant's claim shall be granted by initial default order or, if the claimant requests, the claimant may proceed uncontested.(b) Upon a default by a claimant, a claimant's claim shall be stricken by initial default order or, if the agency requests, the agency may proceed uncontested.(3) Uncontested Proceeding. When the matter is tried as uncontested, the party having the burden of proof must establish its case by a preponderance of the evidence.Tenn. Comp. R. & Regs. 1340-02-02-.17
Original rule filed December 5, 1994; effective February 18, 1995. Amendment filed December 10, 2015; effective 3/10/2015.Authority: T.C.A. §§ 4-3-2009, 4-5-219, 4-5-309, 40-33-201, et seq., as amended, and 53-11-201, et seq.