How to successfully appeal a Massachusetts auto insurance (SDIP) surcharge

My wife was involved in an auto accident last September which was not her fault — she opened the door of her parked car after confirming that no one was coming, and another driver came whipping around a corner and hit her door.  Her insurance company found her liable for the accident and issued an SDIP surcharge, because the regulations state that the person opening the door is assumed to be at fault whenever an accident like this occurs (just like the person in back is assumed to be at fault whenever one car rear-ends another).

Everyone with whom my wife spoke about the surcharge told her not to bother appealing.  Several people claimed to have waged unsuccessful appeals when they were not at fault.  The prevailing wisdom seemed to be that the system is rigged against drivers.  Nevertheless, I insisted that she appeal and even ghost-wrote her affidavit (we chose to appeal in writing rather than attending the hearing).

Today we received a notice that my wife “did demonstrate a showing necessary to rebut the governing presumption of the applicable standard of fault,” and the surcharge was vacated.  Woohoo!

Here’s the affidavit I wrote for her which was successful at getting the surcharge overturned:

March 19, 2010

Commonwealth of Massachusetts
Division of Insurance / Board of Appeal
1000 Washington Street, 8th Floor
Boston, MA 02118
Attn: Statement Section

To whom it may concern:

Thank you for the opportunity to present my case for your consideration.

The open door of my parked Honda Odyssey minivan was hit by another driver.

I checked that the roadway was clear immediately before opening my door. No cars were in sight.

I then opened my door all the way and placed one foot on the pavement before suddenly realizing that there was another vehicle about to hit my door. I had time to pull my leg all the way back in and partially shut my door before that occurred, such that I was not injured and the only damage to my minivan was slight damage to my door’s trim.

When you consider the time that it took me to open my door all the way at a normal speed (i.e., I didn’t throw it open quickly or anything), put one foot on the pavement, realize that a vehicle had “come out of nowhere” and was about to hit mine, pull my leg fully back into my minivan, and close my door more than halfway, it should be obvious that the other vehicle (a) could not have been close to mine when this sequence of events started and (b) was probably traveling at an excessive speed and possibly not paying attention.

Here is a satellite photo of where the accident occurred:

I have marked where my car was legally and properly parked, only a couple of inches from the curb, with a red rectangle. I would like to call your attention to two features of this scenario:

  1. Note how wide the single traffic lane is on that part of Faneuil Street, which is one-way. In a traffic lane that wide, any car driving close enough to the parking lane to clip a door was being driven negligently.
  2. As I noted above, I did not see the other vehicle when I checked the roadway before opening my door, nor do I have any direct knowledge of where it came from. However, it seems likely to me that the vehicle either turned right from Bigelow Street onto Faneuil Street as shown by the blue arrow in the photo, or left from N435 onto Faneuil Street as shown by the green arrow. In either case, it appears that the other driver made the turn too quickly and/or without paying sufficient attention and did not notice my already open door until it was too late for him to avoid colliding with it.

Given all these details, I think it is clear that I was not responsible for this accident.

Thank you again for taking the time to consider my appeal.

Sincerely,

Andrea Kamens

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138 Responses to “How to successfully appeal a Massachusetts auto insurance (SDIP) surcharge”

  1. jeep_jeep says:

    I’m seriously considering appealing a recent surcharge notice I’ve received. I was involved in a rear end collision that I was completely at fault for 2 days prior to the surcharge in question. On my way to work one morning on the route I travel every day- the one lane road turns into two marked lanes upon an intersection. While entering the right hand lane to turn right, the operator in the left hand lane quickly drove into my front left quarter panel and bumper as a car in front of her was taking a left hand turn and she needed to avoid them. She ended up pushing me into the curb and blowing out my tire – inevitably saying that it was my fault and leaving the scene of the accident when clearly it was not. When the cops came to file a police report- I had noticeable damage from the rear end collision I had been in 2 days prior (that I KNOW I was at fault for, this damage was to the hood and front grill of my jeep) in addition to the new damage that was done to my jeep- now having punctured my radiator among other things. I was lucky to have it happen in front of a garage where they could change my blown out tire and then bring it to my mechanic. The appraisers put in two separate claims (which- I should have just reported it as one at this point….)In July of 2012 was when this happened, and I’m just receiving a notice now. The police report states that the other woman was found and questioned, and she said I rear ended her, although all of the damage was done on the left side of my car. The police report from the prior accident states clearly that there was only hood and grill damage from the 2 days before. I wrote a statement with the 2nd police report (that was written 10 days after said accident, and nothing was written down at the scene where only I was present) yet I’m found at fault 2 YEARS later? I question this merely because my record is less than good and have been involved in another accident having hit a telephone pole 2 years before care of a travel mug being lodged under my break pedal and not being able to stop- doing major damage not only to the pole, and my car but breaking my kneecap and wrist as well. And another where I hit a parked truck, and totaled my jeep. Needless to say I’ve been extremely cautious and observant and have not had any other violations since. 3rd party perspective?

  2. Dave says:

    My wife backed out into a moving vehicle and I came to this site for information about whether to appeal. It is our first at-fault accident in 30 years.

    My wife says her vision was blocked by a large truck next to her and she was backing out slowly. Reasonably, the driver in the right of way should have seen her pulling out and stopped.

    However, we have a camera on the back of the vehicle that was covered in snow and she looked forward at the moment of the collision. I told her if I was deciding the case, I would deny the appeal because she should have cleaned the snow off the camera and been looking back for the entire time she was pulling out.

    I advised her not to appeal. She agrees that it was her fault for not cleaning the camera before backing out. Hopefully our insurance will not go up much due to our long accident free record with the company.

    Your site helped me decide not to waste time on an appeal that will likely be denied.

  3. R says:

    Yesterday I went to the appeal court in worcester to appeal a surcharge from my insurance company (Travellers). On december 1st I was leaving my neighborhood early in the morning and I was approaching a T intersection I realized I could not stop. I was sliding on Black ice. I could not slow down, stop, or turn my car. So I went straight into a curb. This curb caused severe damage to the underneath of my little ford focus so the insurance company deemed it totaled. The speed limit in my neighborhood is 25 and I was barely doing 20 at the time. I had no idea of the weather conditions because of how early it was nothing had been reported and at the time of the accident the weather was clear. The damage was so severe because the curb was new: extra tall, extra pointy edges. I appealed the surcharge because it said I was more than 50% at fault. I know that the insurance company has to place blame and since I was the only one involved they think it’s my fault. But I was driving safely, I approach that intersection everyday and all is fine, but on that particular morning there was deadly black ice and there was no way I could have stopped my car. I just braced myself for impact and I’m lucky that a curb is the only thing I hit. Do you think I have a chance of getting it vacated from my record and winning the appeal?

    • jik says:

      Yes, I think there is a chance that the appeals board (just to be clear, it is not a “court”) will overturn your surcharge. However, they could also determine that you should have been aware of the weather conditions and uphold the surcharge. Please let us know how it turns out!

  4. susan says:

    Hi, I have lived at my home for 30 years. Last year i had pulled out of my driveway, I was looking behind me the entire time checking for cars. After pulling out I had put my car in drive and was proceeding down the street traveling about 10 miles per hour when I was struck from behind by my neighbor who lives about 10 houses down the road. He has a history of driving very fast on our street. He apologized profusely to me and said he was distracted and never saw me. He later changed his story to avoid being at fault, to I backed into him. Damage was to the front of his car and the rear of my car. My insurance co. waived my deductible but now i received a surcharge letter saying that I was backing out of my driveway and am therefore more than 50% at fault. I want to appeal do you think I should?

    • jik says:

      Your first step should be to contact your insurance company, tell them that the surcharge notice is simply wrong because you were not, in fact, backing out of your driveway when the accident occurred, i.e., your neighbor lied, and see if they will fix it without resorting to an appeal hearing.

      If that fails, then yes, you should absolutely appeal. If you’re telling the truth and your neighbor lied, and there’s no evidence to prove the truth of his version of events, then there’s absolutely no reason why you should get stuck with a surcharge.

  5. CKimball says:

    Hi,

    Last November I pulled into a store parking lot, parked my car, turned off the ingition, and opened the door to step out. It was an extremely windy day and a huge gust of wind blew the door open (my hand was on the handle!) into the parked car next to me. I did the right thing and went inside and had the owner paged and we exchanged info. I assumed where I was parked and it was really the wind that I wouldn’t be held at fault. Needless to say I learned it’s considered collision, it’s my fault, and I have a $400 surcharge. I am appealing.

    What I really want to say is I could have just left the scene, and both of our cars could have been claimed as property damage/vandalism (along those lines) and I shouldn’t be punished for doing the right thing. Would that be a smart arguement? Or smart in a bad way?

    Thanks!

    • jik says:

      I find it hard to believe that you received “a $400 surcharge” because your car door damaged another car in a parking lot. How did you arrive at that figure?

      Please note that whether you are determined by the insurance companies to be responsible for paying the other guy’s damages is a completely separate issue from whether you are issued SDIP points that cause your insurance rates to go up. I think you might be confusing the former with the latter.

      I really don’t see any ambiguity in the question of fault. Your opening car door hit somebody else’s car and damaged it. That makes you at fault pretty much by definition. And no, “It was really windy,” doesn’t make you not at fault, it means you should have been more careful when opening the door.

      You should do the right thing because it is the right thing to do, and if that costs you money, then you should take your lumps and move on with your life. Anything else is immoral and unethical.

      To this day, over 20 years later, I am ashamed of the fact that I ripped a mirror off of a parked car while driving too close to it on a narrow street and didn’t stop and leave my insurance information. It was an act of moral cowardice, and it was wrong. I would never even consider doing that today.

      • CKimball says:

        My premium went up by $400 – is that not a surcharge? Also I now have 3 points.

        My point is I didn’t just carelessly fling my door open. I was holding the inside handle and the door was taken out of my hand. And actually that day was so windy that it even affected the Pats/Colts game (right before Thanksgiving). But I digress.

        To be honest with you next time I’m not going to “do the right thing” because what I have learned from this experience is when you do the moral thing you get punished (which is why people aren’t more forthcoming when these things happen). I’ve had damage done to my car with no note left and I got it fixed. Was I pissed? Yes. Do I blame that person? Not now.

        • jik says:

          My premium went up by $400 – is that not a surcharge? Also I now have 3 points.

          I suppose. It’s just that a $400 premium increase seems rather high to me for a single minor at-fault accident. Perhaps I’m wrong about that, or perhaps you were benefiting before from a special discount offered by your insurer for especially safe drivers, so when you got nailed with the surcharge, you got a double whammy: you lost the discount and you got a surcharge for having an accident on your record. Call the insurance company and ask; they’ll tell you what happened to your rate.

          Just to be clear, usually the insurance company isn’t allowed to raise your rate as the result of an SDIP rating change until the next time your policy comes up for renewal. Is that what happened here?

          My point is I didn’t just carelessly fling my door open. I was holding the inside handle and the door was taken out of my hand. And actually that day was so windy that it even affected the Pats/Colts game (right before Thanksgiving). But I digress.

          And my point is that you are expected to be aware of weather conditions and “the wind blew the door of my hand” does not, as far as I know, absolve you of responsibility under the law. According to the law, you are more than 50% at fault under two different standards of fault: “(1) Collision with a Person or a Lawfully or Unlawfully Parked Vehicle”, and “(18) Opened or Opening Vehicle Door(s). A door of the Operator’s vehicle is open, or is in the process of being opened, resulting in a collision with another vehicle”. There is nothing in the law about wind or weather being a mitigating factor, but I suppose it is possible that if you appeal the surcharge and convince the appeals board that the wind was so awful that day that you couldn’t have anticipated having the door blown out of your hand, they might overturn the surcharge. I doubt it, but it’s possible.

          To be honest with you next time I’m not going to “do the right thing” because what I have learned from this experience is when you do the moral thing you get punished (which is why people aren’t more forthcoming when these things happen). I’ve had damage done to my car with no note left and I got it fixed. Was I pissed? Yes. Do I blame that person? Not now.

          Look, you can blame the wind, or you can take responsibility for the fact that your door hit and damaged somebody else’s car, and cope with the results of that responsibility.

          Whatever rationalizations you choose to use to justify driving away after damaging someone else’s car is between you and whatever deity you believe in.

  6. Joe Sol says:

    Do you have any outcomes where hydro planning reasons were upheld on appeal? Similar situation to Nick, 1-2 years ago. Thanks

  7. Sara says:

    Hi, I was involved in a loss where i stopped at the stop sign in preparation to make a left turn. i inched foward in an effort to make sure it was going to be clear to proceed. i was stopped when the vehivle traveling straight (who was speeding trying to make the light before it chaged) hit my vehicle.
    the point of impact on my vehicle was my front end license plate (just a scratch) and point of imapct on the other vehivle was the passenger side front door into the rear door (more scrapes) would i have a chance at beating the appeal?

    • jik says:

      I think you might be able to successfully appeal the surcharge, but it’s not a slam dunk.

      There is one thing about the scenario you described that is unclear… You say you were at a stop sign, but you also say that the other driver was speeding to beat the changing light. An intersection doesn’t usually have both stop signs and traffic lights. Can you clarify that?

      Did police respond to the accident? Was a police report filed?

      There are a number of factors that seem to contribute to whether you were legitimately at fault. How far did you inch out into the road (how far into the roadway was your car extended when the accident occurred)? Was the other car not visible when you started to inch forward? Was the other car’s excessive speed the cause of the accident? Would the other driver have been able to avoid hitting you if he hadn’t been speeding?

      If the true answers to these questions would seem to implicate the other driver in the accident, then you may be able to overturn the surcharge.

      I would never advocate providing untrue or misleading information to the appeals board.

      • sara says:

        I tried to post a pic of the intersection but it wouldnt post. the person was definitely speeding and unfortunately no police came to the scene (she didnt want to stay as she was in a rush). i had to inch forward to be able to see if the road was clear to proceed. unlike if it were night time, where i would be able to see oncoming headlights, there was no way for me to tell that she was coming down. had she not been speeding, she would not have grazed the front of my car. from the damage itself, it is clear that i was not impeding her lane of travel but more that she tried to go around me to make the light. i think that she seen me but still was concerned about making the light.

        the intersection is like a lowercase t only the street that im coming from goes straight into a gas station.

        the street she was on is a long street and she was approaching the traffic light.

        • sara says:

          Also i was surcharged for failure to obey rules and regulations of driving but my insurance company told me it was supposed to be failure to proceed with caution from a stop sign, after they told me i wasnt going to be at fault, but 1 year later i received a surcharge letter.

  8. MG says:

    Hi. Trying to decide if i should appeal a surcharge. I was completely at fault hitting clipping th bumper of a parked car. I left my information for the other individual. I have never gotten in a surchargeable accident in 25 years. Have you ever heard of someone getting a surcharge revoked by being respectful and asking for leniency based on past experience and my actions?

    • jik says:

      You’ve already benefitted from not having a surchargeable accident in 25 years — your insurance rates have been lower all that time.

      If you want to seek leniency, you need to talk to your insurance company, not the appeals board. The board’s job is only to determine whether you were more than 50% at fault, and that is clearly not at issue here.

  9. Kelly says:

    Was in a hospital parking lot and leaving. I headed out to the access road which was an unmarked one way and hit a Prius. There was no indication that the road was a one way. The police came and I was not issued a citation. A month later signs have been installed making it very clear that the road is one way. I have pictures from the date of the accident as well as current pics showing the addition of the signs. Any additional advice on what to have for the appeal?

    • jik says:

      Is the access road on private property (i.e., the hospital grounds) or public property? If the former, then it’s not relevant that he police didn’t cite you — they don’t have the authority to issue citations for accidents on private property.

      If the access wrote was on public property, then it is slightly relevant, but not incredibly relevant, that you weren’t cited. Unfortunately, it’s all too common for police to be too lazy to issue a citation when they clearly should have.

      Having said that, if you can document that there was no signage indicating that the road was one-way, and that such signage was added immediately after your accident, then I certainly think you can make a strong case that you were not at fault because the road was improperly marked and you had no way of knowing which way to turn when heading onto the access road. I’d appeal if I were you.

  10. eric says:

    I rear ended a truck nothing happened to the truck because my bumper went under the trucks bumper he is not hurt . I was siding on ice at about 3mph
    There was some damage to my hood and grill.Is the ice a factor in this accident. And do you think I have an appeal case.
    Thank you Eric

    • jik says:

      Whether you could win an appeal depends on whether you could make the case that (a) the ice you slid on the road was atypical for the weather conditions and you couldn’t have reasonably foreseen it and (b) you were following at a safe distance for non-icy conditions, so if the ice hadn’t been there you would have been fine.

      I don’t know the weather or road conditions so I don’t know how likely it is that you’ll be able to convince the appeals board, but it seems unlikely to me.

  11. Bmac says:

    I am trying to figure out if I should appeal a recent surcharge. I was taking a left at a stop light. light was green when i was trying to go through but with the oncoming traffic i had to wait until the light turned yellow/red. It was jan 2 during the big storm and a truck tried to make the yellow red, was red by the time he hit the intersection and gunned it to get through. I got hit and when I tried to stop, due to the snow i skidded. Any advice would be very helpful. thanks in advance.

    • jik says:

      It sounds like you’re saying when you started to make the turn there was enough distance between you and the oncoming truck to make the turn safely, but then the truck attempted to gun it through a yellow light and hit your car.

      It’s difficult to prove you weren’t at fault in a situation like that since the presumption is that the person making the left turn is at fault for not yielding to oncoming traffic, but I think if you make your argument convincingly you might be able to pull it off.

      I’d appeal if I were you.

  12. Eric says:

    Hey Jik,

    Read through your article and found it very helpful. I hit a manhole cover (in the center of a small driveway) two month back. The road surface was peeled off by some construction company, and thus the manhole cover was raised above the road. The insurance adjuster told me that I won’t be surcharged when I reporting the accident, but now they changed their mind, saying I’m more than 50% at fault.

    I believe that I’m not at fault because (1) there was no construction or caution sign around; (2) I was driving carefully but I have to assume that I can go through it because it’s in the middle the road. It should be construction company’s responsibility to make sure the cover is smooth with the road surface. What do you think if I go for an appeal?

    • jik says:

      It’s complicated by the fact that it’s a driveway rather than a road. I believe there are differences in the rules for damage that occurs on private property, though I don’t know the details.

      I’d appeal if I were you.

  13. DCK says:

    ALL THESE ISSUES WITH MA SURCHARGES ON MINOR ACCIDENTS DON’T TOUCH WHERE THE PROBLEM REALLY ORIGINATES. THE CORRUPT SYSTEM ITSELF! SURCHARGES BRING IN MILLONS IN REVENUE FOR THE STATE. A MINOR DING TO A BUMPER CAN COST THE ‘AT-FAULT’ DRIVER AT LEAST $2,50.000 DURING A FIVE YEAR PERIOD. PLUS HIS OR HER PREMIUM WILL DOUBLE TO PAY FOR IT. IF APPEALED ($50.00 non-refundable fee) AND IS WON THE SURCHARGE APPLIED WILL BE REMOVED AND REFUNDED. The $500 DAMAGE THRESHOLD IS ABSURD IN THIS DAY AND AGE. BUMPERS ARE MADE OF VERY VERY THIN PLASTIC…POSSSIBLY DESIGNED TO ENCOURAGE DAMAGE CLAMS…SOME STATES LIKE CA HAVE A DAMAGE THRESHOLD OF $1000 BEFORE A SURCHARGE CAN BE APPLIED…NOT THIS STATE…OF COURSE NOT! I DID A VERY MINOR DING TO ANOTHER OPERATORS BUMPER…I WAS CONSIDERED AT FAULT…THE DAMAGE WAS ADJUSTED TO $526.00…JUST A LITTLE OVER THE $500???? GOT A SURCHARGE THAT IS MORE THAN MY CAR IS WORTH. SAD HOW THEY HAVE BEEN ABLE TO GET AWAY WITH THIS ALL THESE YEARS…CALLS FOR A CLASS ACTION LAWSUIT AND A COMPLAINT WITH THE ATTORNEY GENERAL’S OFFICE AND A MEDIA EXPOSE…THIS IS ABOUT VERY ‘MINOR’ ACCIDENTS ONLY. DON’T OWN A CAR OR DRIVE TODAY IN MA!!!

    • jik says:

      SHOUTING doesn’t make people take you more seriously; quite the opposite in fact.

      The state doesn’t make money from surcharges. The increased premiums go to the insurance companies, which are private, not the state.

      Fault is a far bigger issue for surcharges than the threshold. It seems to me that if you were at fault, then it’s perfectly reasonable for your rates to go up.

      • DCK says:

        HELLO AGAIN…I will not use all caps this time so I won’t seem to be shouting…just annoyed. You don’t seem to get my complaint…the $500.00 DAMAGE THRESHOLD (that’s shouting!). I just got my appeal notice that it will be at least 9 months before my appeal is heard. That means they are backlogged…is it right for a person to be surcharged $2,500 for a small bumper crack that is adjusted for $526.00?
        UPDATE: I just received notice that they have increased the adjusted damage to the other vehicle to $2,050.00. So now this little crack to his bumper is now considerd a MAJOR ACCIDENT and I have another point added to my record which was perfect since I was 16…I am now 71. I am very glad you told me that it is the insurance company that makes the money from the surcharge and not the state…now that make even more sense. My appeal is that he rear ended me…As you mentioned the surcharge appeal is all about who is more than 50% at fault. The whole system is badly flawed. Recenty,some insurance companies were found to not re-emburse customers after their appeal was vacated. the Attorney General’s Office after just one complaint investigated and made them pay back the customers and they were fined…Just inforces how dishonest these companies are. Thanks again for letting me know that it’ s the Insurance Companies that make all this money…now that really needs investigation…Also there is NO damage to my rear bumper and that was a major accident?

  14. Nirkmen says:

    Hi,

    I recently got into a car accident and the insurance is claiming I am at fault. I am going to appeal and would like to know your opinion. It was starting to snow and my significant other and I decided to drive home. Before it got bad.There was 2 inches on the ground. I was driving 20 MPH which is 15 under the speed limit when the person in front of me lost control of their vehicle for some unknown reason. I was about 200ft behind him when he lost control and skidded to a stop and was parallell to the road blocking both lanes. I saw this hit my brakes and started to slide to avoid hitting him full on I gained enough control to pull to the right hitting a tree. I bounced off the tree and my rear end hit his back right quarter causing a dent. My car was totaled from hitting the tree. If he had not lost control I would not have had to apply my brakes. He was the cause of the accident but since I hit him from bouncing off a tree to avoid him, insurance automatically blames me. Do you think I have a case.

  15. Kritika says:

    HI
    i recently met with an accident where my car skidded and turned more than 90 degrees hit the metal guard on road side and badly damaged. Car was total loss and insurance company levied deductible on me saying single car accident and driver is at fault. I had called cop at the site and there is witness who had seen after fact.

    can i apply for surcharge waiver.

    • jik says:

      I really don’t see what the grounds would be for an appeal of the surcharge. From your description of the accident it sounds like you were at fault. Why do you think otherwise?

      • Kritika says:

        well car skidding due to weather conditions and turns around 90degress, how i can be at fault?

        • jik says:

          You are expected to adjust your driving for current weather conditions. If you skid because of weather conditions, then legally speaking, you were by definition not driving safely.

          According to 211 CMR 74.04, “(19) Single Vehicle Collision. The operator of a vehicle subject to the Safe Driver Insurance Plan shall be presumed to be more than 50% at fault when operating the only vehicle involved in a collision.”

          Also, “The presumptions raised as to an operator being more than 50% at fault, as described in 211 CMR 74.04, shall be considered determinative unless and until the operator overcomes the presumption by producing sufficient evidence at an initial review or hearing held in accordance with the rules of the Board.”

          To overturn a surcharge resulting from a single-car accident caused by your skidding due to weather conditions, you would need to convince the appeals board that the conditions which caused you to skid could not reasonably have been foreseen. It seems unlikely that you would be able to do that.

          • Anonymous says:

            Hi Jik,

            I saw several of your replies where in weather situation somebody skids, applies brakes, you have mentioned that they can appeal. In my case there was black ice with foggy situation, I was next to the lake where it is more likely to have black ice when temp suddenly drops and it rains after a long time. Do you still feel that it’s not worth to appeal. Though we don’t have pictures we do have video, that car was going straight and suddenly turned around, do you think that would help?

            • jik says:

              How is it that you happen to have video of the accident? That seems somewhat odd.

              Appeals for weather-related accidents are tricky. You have to convince the appeals board that you were driving safely for the weather conditions and whatever caused your accident could not have reasonably been foreseen. In this case, you would have to convince the appeals board that the roads were mostly fine and clear down to the pavement, and then all of the sudden out of nowhere you came upon an invisible patch of black ice.

              That’s not impossible, but it’s not easy either.

              I don’t feel like I know enough about this type of appeal in general, or about your specific situation, to make any sort of concrete recommendation.

            • Anonymous says:

              hi,
              That is because security video is installed in our cars permanenetly which keeps recording everyday drive. Do you think that can be used as a proof while hearing.

            • jik says:

              You can certainly use the video as evidence; whether it will prove you weren’t at fault is not something I can judge.

            • Marv says:

              The appeals hearing does not allow any electronic devices submitted as evidence .. they only accept photos or paperwork FYI ( it is stated on the hearing date letter )

            • jik says:

              I’m pretty sure that only applies to evidence submitted by mail if you do that instead of attending the hearing. If you attend a hearing in person I can’t imagine they can prohibit you from showing them video evidence if you’ve got it. On the other hand I doubt it comes up that often.

  16. michaela says:

    I was turning left onto a small side street having to cross 2 lanes
    The car in the inner lane was letting me go as he did the truck right before me. When I went to turn a car came flying up the other lane and smashed into the right side and ripped the whole front bumper off. Then she hit the front of a van that was stopped on the side street
    Her car wasn’t nearly as damaged. Mine costed almost 6000 to repair

    So I don’t think she was paying attention, since she didn’teven use her brakes. But I was told Iam a fault because I was turning into oncoming traffic. Should I appeal this?

    • jik says:

      I would if I were you. There are no guarantees, though. And you’ll need to make the case, with any eyewitness testimony, police reports, diagrams, etc. that you can muster, that you were driving carefully, the other driver wasn’t, and you could not have foreseen the accident (e.g., you turned slowly and looked for a car in the outer lane but could not see her because the car stopped in the inner lane was blocking your vision and the car that hit you was driving too fast).

  17. bryan says:

    I was involved in an accident and received a citation for driving through a red light. clearly the other car was not at fault, but I am considering appealing the surcharge because the red light was out of my view (I put the visor down because of solar glare). Do I even have a chance or does the appeal board only care about who was more than 50% at fault?

    regards,

  18. Marv says:

    I was issued a surcharge ( sec 19 ) single car collision, when I drove up a slight incline ( @25mph ) and when I went over the to to descend down the incline, there was a raccoon slowly crossing the road. Road was unlit and dark and my headlights have 30 ft illumination. I had 1 second response time upon seeing the animal and swerved left to avoid hitting it and struck boulders on the roadside thus ending up in the woods causing @$4000 damage. My reaction is based on it being a child or animal and I will not kill a living thing. Do I stand a chance to be vacated?

    • jik says:

      I really can’t say for certain — I’m not familiar with what the rules are regarding swerving to avoid sudden obstructions in the roadway. See this relevant conversation below.

      • Marv says:

        thank you for the reply, I will get my hearing within 9 months according to the mail received and will update the results here when I appeal. I plan to convince them of impulse reactions by slapping my hands in front of their faces if I have to , to show how they reacted without hesitation LOL ( just kidding )

        • Marv says:

          Had my hearing yesterday and it lasted 5 minutes with the woman hearing officer being very friendly and emphasized with me saying she would have flinched also coming upon an animal in the road with 2 seconds to react. She said I was all set and can go as she was smiling and nodding her head while thanking me for attending. I can read people’s facial expressions very well and I am sure I will be vacated. I will post the outcome when I get it :)

          • Marv says:

            Just received my hearing appeal letter and I was VACATED of any surcharges . Note to anyone appealing, make sure you bring photos depicting accident scene in a way to put reviewer in your shoes and be polite as possible and also state your previous driving record :)

  19. Anne says:

    I would like to know if you think that I have any chance of successfully appealing a surcharge notice. My son hit a telephone pole that was very close (6 inches) to the edge of the pavement. He does not know how he “clipped it” (according to the police officer). He thinks that he must have just looked away for a second and hit the pole. He was traveling about 30 mph, was not texting or talking on his phone, and did not even have the radio on. We feel that if the pole had not been so close to the pavement, he would have been able to self-correct and continued driving straight on the road without having hit anything. If the pole had been placed further back, he would not have hit it. Please comment. Thank you.

    • jik says:

      Your son hit a stationary object that was not in the roadway. You don’t have a snowball’s chance in hell of successfully appealing the surcharge.

      The fact that the pole was close to the edge of the pavement is irrelevant, since nobody driving 30 m.p.h. should be driving that close to the edge of the pavement anyway.

  20. JTL says:

    Hi,

    I recently rear ended at vehicle on an interstate highway. There was heavy traffic when I rear ended this vehicle. I hit the vehicle going about 5 miles per hour. The reason I hit the vehicle was because I have seasonal alergies and was having a vicious sneezing fit. I simply didn’t stop in time and hit the vehicle because I was temporarily blinded by this sneezing fit. I subsequently received a surcharge notice and I would like to know if its worth appealing given the fact that I was temporarily incapacitated by the sneezing fit.

    Thanks,
    JTL

    • jik says:

      Seems to me that if your allergies can “temporarily blind” you for long enough to run into the car in front of you, then either (a) you shouldn’t be driving or (b) you should be leaving more distance between yourself and the car in front of you.

      In short, I think it’s unlikely that you’ll win an appeal. But as I’ve said here many times before, I am not a lawyer, this advice is worth what you paid for it, etc.

  21. Karen says:

    About a month and a half ago, I was slowly backing out of a parking lot space. I would have pulled forward but someone had left a cart in front of me. Rather than get out and move it, as I had already put mine away, I unfortunately decided to back out. The lane behind me is rather narrow for two cars, but is still used that way. People ten to go faster than necessary, also. Long story short, as I was backing out after looking both ways, a car came down the lane, on the passenger side of the car and we collided. I was quite surprised when I heard a crash and all I could see was a big white wall (turned out to to be the door of the Kia Sedona). I drive a Subaru Outback wagon. Since I didn’t know what I had hit, I pulled back into the space. I got out and saw the other driver, already outside of her car with her phone in her hand, which surprised me, as I keep mine in my purse. When I said what happened she said I hit her. I said was she sure. It was about then that a grocery cart boy came over and asked if we were all right. I was a bit annoyed because he was just now getting around to moving the carts – though I know the person who left it there was really responsible for that part of things. However, my teenager daughter who was with me said she overheard the other driver, a woman, saying over and over to the grocery cart boy that it wasn’t her fault, to which he said, well it’s not all your fault. The police took his info, but when my insurance co trying to call him, he refused to speak to them, so I don’t know if the groc. store or the other driver got to him. The police came and didn’t find either of us at fault, but took a report. I and my daughter both suffered pain as a result. The other thing is the other driver refused to immediately give me her info while insisting she had mine. Now my ins. co. says I should at least try to appeal, but I wonder if it is worth it. My husband says not to bother because the “rules of the road” are it is my fault. I see other people had success in appealing. What do you think? Also, my husband thinks the other driver might have been distracted. I had mentioned the phone in her hand to the ins. co. but it didn’t seem to make a difference.

    • jik says:

      Hi Karen,

      As an aside, I’m not sure the police were allowed to cite either of you because the accident happened on private property. I think they’re only allowed to issue citations for accidents that happen on public roads.

      This article is relevant to your circumstances: http://www.ehow.com/about_6536260_parking-lot-accident-law.html

      I think whether you will be able to succeed in an appeal hinges on whether you were looking behind you while you were backing out. You wrote above, “…as I was backing out after looking both ways,” which seems to imply that you were not looking behind you while your vehicle was in motion. As such, I think a successful appeal is unlikely.

      I think the situation might be different if you had a witness able to testimony or give a statement indicating that the other driver was distracted (e.g., on her cell phone) and drove down the lane too quickly without observing that you were backing out.

      As I’ve said many times before, I am not a lawyer and my advice is worth what you paid for it. If you are concerned about how much the surcharge is going to increase your premiums, you may wish to consult with a lawyer with expertise in this area.

      • Karen says:

        Thank you for your reply. I talked with an insurance agent from my co. today and they told me an approximation of the increase and that I could count on it going up by 37.5%, but I won’t know the exact amount till next Feb., because it doesn’t renew till Mar. So anyway, I go from having a really good credit (99) to 3 points on my license for 6 years. I had good driver credit and all and now it all goes away. There was nothing on my record since probably 2001 and that was a speeding ticket. I have been very careful for a long time, so this is especially upsetting to me. Anyway, because of my good record the insurance agent said to try and appeal, but I think I was looking to my left and not my right – the direction the woman came from when we collided. I know my neck is still very stiff on that side – 6 weeks later.

  22. David says:

    DOI appeals are rigged! There are some board members who used to
    be prosecutors and who wish they still were!
    They even asked the insurance representative to hand out cards so that
    everyone could get a good deal on Geico’s “great” insurance prices.

    And that was before the appeal

    • David says:

      The Board of Appeals chairperson, 1 of the 2 members that were present, also decided to go to lunch with
      the representative from Geico, asking whether or not the
      rep. knew a good place that they could go to together.
      That happened about ten seconds after the “appeal” was
      done!
      Unethical at best! But that sort of behavior shows the corrupt nature
      of the insurance world and how large corporations are treated as if the
      law doesn’t really matter. Just so long as you bring money and tax revenue to the state!

  23. Jay says:

    I got a surcharge notice, trying to figure if it’s worth fighting. My wife was driving on the Mass Pike, exited on and exit that has multiple exits. (3 exits, I believe) The car two cars ahead slammed on its brakes and stopped for no reason probably lost. The compact car ahead swerved and braked to miss the stopped car. The car directly in front of her stopped 100%. My wife, driving in an SUV, braked and hit the car directly in front of her. The car that caused the whole mess drove away unharmed.

    Clearly the first car was 100% at fault. Should I appeal this?
    Thanks!

    • jik says:

      Even if the first car was 100% at fault, your wife could still be more than 50% at fault. Fault in auto accidents in Massachusetts is evaluated separately for each driver involved.

      Did police respond to the scene? Was the first driver (who “drove away unharmed”) there when they arrived or already gone? If the former, was he cited? If the latter, did they make any effort to locate him? Were there police reports? Do they mention the driver who caused the whole thing? Did the police interview witnesses? Do you have the contact information of the other involved drivers and/or witnesses?

      If there is no independent corroboration of your wife’s version of events, then it is going to be difficult, albeit not impossible, to get the surcharge overturned.

      The presumption when one car rear-ends another is simple: the car in back was not keeping a safe following distance. Almost by definition, if your wife had been keeping a safe following distance, she would have been able to stop in time.

      Having said that, the fact that the accident took place on an exit ramp is definitely a mitigating factor in your favor. There are all sorts of things outside of one’s control that take place when one is exiting from the highway. For example, you may be following at a safe distance from the car in front of you when you’re about to exit, but then suddenly another car realizes they want that exit and cuts across two lanes of traffic into your lane.

      My gut instinct is to tell you that it’s probably worth trying to get the surcharge overturned. The argument you need to make is that your wife was following at a safe distance from the car in front of her, and the accident was caused by other drivers who created circumstances she could not have reasonably foreseen.

      It’ll be easier to make that case if you have a police report which corroborates your wife’s story, and/or statements from other involved parties or witnesses, but you might be able to win even without those, so it’s probably worth trying.

      (As usual, let me reiterate that I am not a lawyer and this advice is worth what you paid for it.)

  24. Chris says:

    I rear ended a vehicle at 630 am on May 1 2012. It was overcast and had just started raining. I was travelling at 35mph and saw the car ahead that was making a left turn (illegally across a double yellow line) into a dunkin donuts. I hit my brakes, my car didn’t have ABS so the brakes locked and I skidded into him. I quickly looked to my right to see if I could change lanes but there were vehicles to my right.
    Do the weather and the illegal left turn give me a chance? Should I attend my hearing (June 24) or write a letter? Any advice would be great! Thanks! I have already been paying my surcharge for 8 months, looking forward to getting it taken care of!

    • jik says:

      I am not a lawyer, and there are certainly lawyers who are expert in this area who will have more informed opinions than I and may be able to help you fight to get the surcharge reversed. If it’s costing you a lot of money, it may be worth consulting with one of them instead of a random guy’s blog. :-)

      Having said that, the presumption that a driver who rear-ends another driver is more than 50% at fault is probably the strongest of any of the presumptions that the SDIP appeals board deals with, and I think it’s unlikely that either the weather or the fact that the guy in front of you was turning illegally are going to make a difference.

      You’re responsible for driving at a safe speed for the current weather conditions, and you’re responsible for driving at a safe distance from the car in front of you so that you can stop safely if it stops suddenly.

      The only way I can see (and again, I’m not a lawyer, and you may wish to consult one) that you might be able to overturn the surcharge is if the guy making the left turn was doing so right after a bend in the road, such that it was impossible for you to see him until it was too late for you to stop. If that was the case, then the fact that the turn he was making was illegal becomes relevant, because the double yellow line was there for a reason, i.e., the reduce visibility around the curve.

      To make that case, you’d have to argue that (a) the driver in front of you stopped to make an illegal turn right after a curve, (b) you had no way of seeing him until it was too late for you to stop, and (c) it was the lack of visibility around the curve, and not your speed or following distance, that caused the accident.

      If there was no curve in the road, I think you’re probably out of luck.

      For making the case described above (if there’s indeed such a case to make), I think you’re better off going in person than writing a letter. Bring photos and diagrams to support your argument.

      • Chris says:

        I stated my case attributing it to the weather and the fact that the car was on the otherside of a crest and I won! I did provide pictures and weather reports which strengthend my case. I kept reiterating that I drive that road everyday and felt that without the rain I would have been safe. Thank you for your help!

        • jik says:

          Congratulations! And thank you for coming back and posting your outcome here. This gives the rest of us valuable information about how to successfully appeal surcharges in the future!

  25. Joanne says:

    In January, I rear ended another vehicle. A dog had run in front of the vehicle I hit and he suddenly stopped in the middle of the road. I saw him stop and hit my brakes but hit a patch of ice and hit him. He thought it was his fault, kept on saying that the dog came out of nowhere. The police report just has names/addresses etc. No description of the accident. My claim adjuster said if knew the dog owner they would be at fault. Question is since there is no record of the accident description, no I have a chance without proof and just my word. Thanks!

    • jik says:

      My understanding is that vehicles that rear-end other vehicles are pretty much always found more than 50% at fault.

      I do not know if an animal running into the road is sufficiently unforeseeable to overcome that presumption of fault. You’d need to ask a lawyer with expertise in these matters to get an informed opinion. (If you do that, please post a comment here and let us know what the lawyer says!)

      Note that the fact that the owners of the dog could be held liable for damages caused by the accident doesn’t imply that you weren’t at fault. Both you and the owners of the dog could be found at fault in the accident.

  26. Joe says:

    Hey jik,

    I had a similar thing happen to me where I decided to turn around, and as I was backing out of the driveway I was turning around in, a car came around the corner and had plenty of time to react, but didn’t because the man was 88 and did not see me in the middle of the road in time for his reflexes to react. The surcharge using the Standards pegged me as 50% at fault because I was in reverse at the time, although he had plenty of time to react to me in the road. Do I have a shot at an appeal? Thanks!

    • jik says:

      Yes, I think so. You will have to convince the appeals board that the road was clear when you started to back out, that you backed out slowly and with due care, and that the other driver came around the corner too quickly and hit you. Pictures of the accident scene might be useful.

  27. Colin says:

    I was in a parking lot and in the process of backing out of a space after looking to make sure I was not going to hit a pedstrian or another car. I continued to check the whole time I was slowly backing up and turning the rear end to the left. Just as I was starting to shift into drive I heard a crunch as I hit something. Turned out to be another car that was backing out of a space on the other side of of the aisle and a one space over to the left. It put a pretty good dent on the driver’s side rear door of his car and left a small scratch on the on the very tip of my left rear bumper. The other driver claims he was driving forward down the aisle when I hit him. Given the position of the damage to my car that is physically impossible. We did have a cop show up but he could do nothing as it was a private parking lot. The cop mentioned to us that he had often seen the other driver driving in a less that safe manner. Do I stand a chance of appealling the >50% responsiblity being assigned to me?

    • jik says:

      This is a tough one.

      The fact that the damage was to your bumper and his door indicates that you hit him rather than the reverse, since cars do not generally move laterally. ;-)

      To succeed on appeal, you will have to make the case that you were already pulling out when he recklessly pulled out behind your moving car so quickly that it was not possible for you to have seen him in time to stop.

      However, it sounds to me like you were still moving backward when you turned around and started looking forward in preparation for shifting into drive, and that’s when you hit him. That’s going to weigh heavily against you. You should not have turned from looking backward to looking forward until your foot was on the brake and you had stopped moving backward.

      Basically, to overcome the presumption of fault, you will need to make a case that there was nothing you could have done to foresee or avoid the accident. I’m not sure you can do that, but my gut instinct is that it’s iffy enough that it just might be worth the appeal fee to give it a try.

      (I am not a lawyer, and my advice is worth barely more than you paid for it. If the surcharge is going to cost you a lot of money, you may wish to consult with a lawyer who is expert in these matters.)

      • Colin says:

        Went to my appeal hearing a couple weeks back. Made the case that I was both checking mirrors and looking over my shoulders when the accident happened and the other driver pulled into my path. If he had been looking he wouldn’t have pulled out of his parking space, the accident wouldn’t have occured. Therefore we were equally at fault.

        Got the verdict a couple days ago and my appeal was upheld and there will be no surcharge added to my premium.

        The advice here was invaluable. Thank you!!

        • jik says:

          Therefore we were equally at fault.

          If it happened as you described, then you were not at all at fault!

          The advice here was invaluable. Thank you!!

          There’s a donation button to the right. :-)

  28. JT says:

    Recently I rear-ended a Prius. The Prius was stopped and I was going about 5 mph.

    The “damage” to the Prius was two small indentations on the rear bumper made by the screws of my license plate on my front bumper.

    I was shocked (and other emotions) to learn that the driver of the other car submitted a claim to fix the damage to their bumper (plus a trip to the ER for a “sore neck”). I naively thought that bumpers were for “bumping” and a small scratch was nothing to think twice about (boy was I wrong). I never took a photo since I never imagined the person would file a claim.

    The repair cost $525 which is more than the $500 limit for MA so I’m looking at 3 points on my record for this bumper bump. On top of it, the insurance company acknowledged that the only “damage” was the two very small cosmetic indentations. They will not release any photos of the damage to me since they claim it is confidential information (even though I saw the damage when we had the accident).

    My question is does the review panel take “reasonability” into account when you appeal an accident. I know I was at fault since I rear-ended the other car. What I’m having a really hard time with is seeing this as an accident that is to the degree that indicates I am an unsafe driver. I feel I need to appeal this just for the principal of the matter.

    • jik says:

      I sympathize with you; I’ve been in a similar plight. And I share your frustration with the things that pass for “bumpers” on cars nowadays. Subaru cars have real, rubber bumpers that can take a good solid knock without showing even a mark, but I don’t know of any other manufacturer putting decent bumpers on their cars nowadays. It’s quite annoying.

      Having said that, $525 doesn’t sound like an unreasonable estimate for fixing a couple dents in a bumper, so I think you’re out of luck in terms of appealing on the basis of the cost of the repair being unreasonable.

      Furthermore, when you are at fault, you don’t get to decide whether it is “reasonable” for the person whom you hit to want to fix the damage you caused. Perhaps if it were your car that was damaged in this way you wouldn’t bother to fix it, but it wasn’t your car, it was the other guy’s and he has the right to get it fixed if he wants to, and to make you (or your insurance company) pay for it.

      The purpose of the SDIP program is not just about “safety” in terms of potential injury to life and limb. It is also about which drivers are more likely to get into accidents that cause damage, and the fact that the insurance premiums for those drivers should be higher. The theory behind the program is that people who are at fault in accidents, are more likely to be at fault in accidents in the future. That’s a completely reasonable theory, and as such it sounds to me like the surcharge was appropriate.

      Therefore, I think it is very unlikely that you will succeed in appealing the surcharge.

  29. Manny says:

    I was driving at the speed limit and then I became unconscious due to a medical condition. When I woke up, I was told that I went to the other lane and hit another car. However, being unconscious, I can’t see how I can be responsible. Is there anything I should say, and how do you think this will come out?

    • jik says:

      There are too many unanswered questions here for me (or anyone else) to be able to offer an informed opinion about your situation. For example:

      • It’s not clear to me if you’re saying you’ve already been issued a surcharge notice by your insurance company, or if rather you’re worrying that you might be.
      • Were police called to the scene? Were you cited? Did the police write up an accident report? Did the report mention that you blacked out?
      • Were you taken to the hospital? Do you have documentation from the hospital that you blacked out because of a medical condition?
      • Was your blackout the result of a chronic medical condition or one of which you were previously unaware?
      • If it was a chronic condition, was the insurance company aware of it?
      • If it was a chronic condition, is it one whose sufferers are not supposed to drive (for example, people who have epileptic seizures are not supposed to drive)?
      • Manny says:

        Thank you for your response. The answers are:

        1) I have been issued a surcharge notice. This is an appeal to the surcharge.
        2) The police were called and I was cited for crossing the line. The police report mentioned that I blacked out.
        3) I was taken to the hospital and I do have that documentation.
        4) It was from type one diabetes. I can drive, and I had a spotless driving record up to that point. I had always been warned about not driving when my blood sugar was low, but in this case, my blood sugar was high, so I didn’t think that it would be a problem. I believe that the insurance company was aware of this, but I’m not 100% sure.

        • jik says:

          If your doctor is willing to put in writing for you that he or she had previously advised you that it was safe for you to drive, and that the blackout you experienced in this particular case was unforeseen, then you will probably be able to win your appeal.

          If, on the other hand, you are unable to provide documentation of an expert medical opinion saying you could not have anticipated blacking out, there’s a good chance you’ll lose.

          See http://www.millerandzois.com/Defendants_2nd_Memo_of_Law.pdf, which may not be directly applicable to Massachusetts law but does lay out the pertinent issues.

          If the surcharge that has been levied against you is likely to result in significant financial cost to you, then I encourage you to consult with a lawyer who is expert in these types of cases. It seems much more likely that your appeal will be successful if you have competent legal representation.

          • Manny says:

            Thank you for the advice. I appreciate the help. I will work on obtaining the letter, and I will let you know what happens.

          • Manny says:

            I just found out that they found in my favor on the surcharge appeal. Thank you so much for your advice!

  30. smc says:

    I hit a stop sign which caused extensive damage to the bottom left side of my small pickup truck. I honestly don’t know what the state of the sign was before it side swiped my truck. I do know that it was either bent over and damaged and in the roadway or just entirely down and lying contorted in the roadway. I know this because the damage was at the very lower portion of the left side and to my left front wheel well. No damage to front of truck or to upper left side or left side mirror, etc.

    I have a hearing in a few days and my main argument is that drivers should reasonably expect the roadway to be clear of damaged road signs. In fact, if anyone’s more than 50% at fault it’s the city for not adequately maintaining safe public roadways free from dangerous objects. This is perhaps similar to a huge pothole in the street causing vehicle damage.

    I have a spotless driving record, and plan to present that at the hearing. I don’t know how much impact a spotless driving record has, but it’s worth a shot. I also have pictures of the damaged which clearly show damage to only the very lower portion of the left side and front left wheel well.

    I was definitely paying attention, looking out for cars and trying to figure out which direction to head in since I was in unfamiliar territory. I was probably focused on other cars, and don’t know what the chances are that the sign was literally teetering on the edge and fell over in front of my truck just before I hit it.

    Any comments or advice would be appreciated!!

    • jik says:

      I think there’s a good chance you can appeal successfully, but I think you may wish to steer clear of the argument that “drivers should reasonably expect the roadway to be clear of damaged road signs.” Exercising due care means watching out for things in the road that shouldn’t be there and avoiding them. Therefore, you should instead argue that you were exercising due care, and the sign was not only in the roadway, but positioned in such a way that it was not possible for you to see before you hit it.

  31. Tina says:

    Hi. My car was parked legally overnight and was hit and no note was left. My insurance company said I will get hit with a surcharge at renewal. Can I appeal this? The repair shop says I can because I wasn’t even in the car and it was parked legally. Thoughts?

    • jik says:

      Under the Massachusetts Safe Driver Insurance Plan, you should only receive a surcharge if you were more than 50% at fault in the accident.

      If you were parked legally and someone hit your parked car, clearly you were not more than 50% at fault, so there must be more going on here.

      Did you receive a MA SDIP surcharge notice from your insurance company? If so, what justification did the surcharge notice give for finding that you were more than 50% at fault? Is it wrong? Did you call the insurance company and ask them to correct it?

      Are you sure the insurance company is talking about a MA SDIP surcharge, or are they increasing your rate under their own rules, independent of the MA SDIP program? If the increase has nothing to do with a MA SDIP surcharge, then the only recourse you have is to ask your insurance company to reconsider, and if they don’t, find another insurance company.

      • Tina says:

        I haven’t reported the claim yet because when I called a sales agent they said if I report it, at renewal they will apply a surcharge. I argued that I’m not at fault so I don’t understand why there would be a surcharge and they kept saying it doesn’t matter, since their is a “payout” on the claim, I will be subject to a surcharge. The repair shop told me if I report it and that happens I should file an appeal on the surcharge. I just didn’t know if I’d win in appeal since I have no way to “prove” that it was a hit and run.

        • jik says:

          It is possible that the sales agent is full of shit.

          The sales agent is certainly wrong if s/he told you that there is a MA SDIP surcharge merely because there was a payout on the claim. There is no SDIP surcharge unless you are found to be more than 50% at fault.

          However, the agent may have been confusing a SDIP surcharge with a rate increase imposed by the insurance company. It is entirely possible that your insurance company gives people with clean claim records lower rates, independent of whether they were found to be at fault under the SDIP rules. If that’s the case, then your rates may go up even without an official SDIP surcharge.

          You can call your insurance company and ask them. Tell them you’ve heard rumors that some insurance companies raise the rates of drivers who were not actually at fault, and you don’t think that’s fair and don’t want to buy insurance from such a company, so you want to know if that’s going to happen to you. See what they say.

          It is also possible that you have a sucky insurance company which will try to break the SDIP rules and issue you a SDIP surcharge even though you’re clearly not at fault. If that happens, then the first thing you should do is call the insurance company and complain and ask them to reverse the surcharge since it’s invalid since you weren’t at fault. If they refuse, then you should absolutely appeal the surcharge, and you will almost certainly win your appeal, and then you should ditch your dirtbag insurance company and find a new one.

  32. Nick says:

    Hi Jik,

    I was recently involved in an accident where my car hydroplaned and spun out during heavy rain. The moment I regained control of my car, I was rear-ended from behind.

    While the roads were certainly wet, they did not appear too wet to drive on safely by any means. The accident was pretty impossible for me to predict and therefore unreasonable to ask of me to prevent.

    I was deemed at fault and I’m about to appeal it. Any suggestions? Should it not be the responsibility of the car behind me to maintain a respectable distance to avoid my car should I spin out?

    Thanks!

    • jik says:

      Playing devil’s advocate…

      The accident was pretty impossible for me to predict…

      No, it wasn’t.

      If there was heavy rain and you hydroplaned, then you were driving too fast, by definition.

      Hydroplaning is a known risk of driving in the rain. The way you avoid it is by slowing down. You conceded that the roads were wet, and that the rain was “heavy.” The risk of hydroplaning therefore should have been known to you, and you should have adjusted your driving accordingly.

      You are responsible for maintaining control of your vehicle. If you lose control of your vehicle due to circumstances you could have anticipated, then you were responsible for anticipating them, and you are at fault for losing control.

      I am not a lawyer, and what I write here is my opinion, not legal advice. If the cost of being found at fault is significant, you may wish to consult with a lawyer who is experienced with situations like this one.

      • Nick says:

        Appreciate the advice and the different perspective.

        I should have mentioned that I did indeed slow down prior to hydroplaning. I was going about 50 in a 55mph zone. That’s why I said it was almost impossible to predict – I had driven in similar weather conditions hundreds of times before.

        Sure, hydroplaning is a risk of driving in the rain. But how is it reasonable to expect me to predict that? Should every car immediately pull over the moment it begins to rain?

        The point I’m trying to make is that besides not pulling over to the side of the road, I did nothing to contribute to the accident. Shouldn’t the car that rear-ended me be responsible for not maintaining a respectable distance behind me?

        Anyways, sorry for the rant :) Obviously I need to be talking to my insurance agent.

        • jik says:

          You didn’t need to pull over; you needed to slow down. The “magic number” for hydroplaning is 35 m.p.h. As documented here, it is much more likely to occur at that speed or higher. 50 m.p.h. is much too fast in conditions where hydroplaning is a possibility.

          Chapter 3 of the Massachusetts Driver’s Manual also discusses hydroplaning:

          Slow down as soon as the rain starts. Many roads are most slippery when rain first mixes with road dirt and oil and forms a greasy film. If a road is slippery, your tires can lose traction and your car can hydroplane.

          Hydroplaning is caused by road conditions, water, and speed. It happens when your tires are riding on water and have no contact with the road. If your vehicle starts to hydroplane, you’re driving too fast. Slowly step off the gas pedal. Never hit the brakes or turn suddenly. You may lose control and skid.

          The fact that hadn’t hydroplaned in similar conditions previously doesn’t mean that this particular accident was unavoidable; it means the conditions were actually different, or you were lucky, or you were driving slower those other times, or some combination of all of the above.

          The fact that people often get away with dangerous driving that does not cause an accident does not imply that they weren’t driving dangerously; it simply means they got lucky. As an analogy, consider that if you leave your front door unlocked with no incidents for years and then come home to find you’ve been robbed, that doesn’t mean it wasn’t stupid to leave your house unlocked all those other times, or that you’re not at fault for leaving it unlocked the one time it finally hurt you to do so.

          Pretty much by definition, if you hydroplaned, you were not exercising due care. This is how the law is written, and it is very unlikely that you will be able to overcome this presumption of fault.

          More than one driver can be found to be at fault in the same accident. It’s possible that you were found to be at fault and the other driver who rear-ended you was found to be at fault as well. That doesn’t excuse your dangerous driving.

          It’s entirely possible that a good lawyer may be able to get the surcharge dismissed. If it’s important to you, you’re welcome to pay one to try. But note that lawyers work by the hour, not on contingency, for cases like this, so you’re going to end up paying the lawyer whether you win or lose.

          If it were me, I’d suck it up and pay the surcharge.

          • Nick says:

            Appreciate the response but I have to disagree with you on a few things.

            It’s absurd to expect every car on the highway to slow down to 35mph when it starts raining. Have you ever, in your life, seen that? How can it be said that I was driving “dangerously” when I slowed down below the speed limit and below the speed of the general traffic on that highway.

            I didn’t avoid hydroplaning every other time I drove in similar conditions because I was lucky. Otherwise you could say to anyone who doesn’t immediately slow down to 35 mph the moment it starts raining on the highway, (aka everybody) that they were lucky they didn’t hydroplane. That’s simply not true. I happened to hydroplane this time because I was UNlucky.

            The law you quoted says to slow down as soon as the rain starts. I did. It does not say to slow down to 35 mph. That is ridiculous to do on the highway when the majority of cars are still going 70 mph.

            Also, if I may quote a law myself.

            (03) Rear End Collision. The operator of a vehicle subject to the Safe Driver Insurance Plan shall be presumed to be more than 50% at fault when operating a vehicle which is in collision with the rear section of another vehicle.

            It is clear that I am a victim of a rear end collision as defined by this regulation. Any car following me is responsible for maintaining a safe enough distance as to avoid a collision should my car suddenly be forced to a stop.

            Anyway, I do appreciate your advice even though my reply my sound heated. I’m frustrated about this because I’m being asked to pay for the other driver’s damages, not to mention the surcharge. If it was just the surcharge I would agree with you and suck it up.

            • jik says:

              It’s absurd to expect every car on the highway to slow down to 35mph when it starts raining.

              This argument makes two incorrect assumptions.

              First, it assumes that most people drive the way the law requires them to drive. That’s clearly not the case, given that, for example, when I drive the speed limit on the highway, which I do as a rule, the vast majority of other cars on the road are going faster than I am.

              Second, it assumes that you shouldn’t be held accountable when you get into an accident after driving unsafely, if other people who were also driving unsafely didn’t get into accidents. That’s nonsense. The “threshold” for entering into a situation where liability needs to be determined is an accident. You crossed that threshold, at which point the law considers the question of whether you were driving safely.

              I didn’t avoid hydroplaning every other time I drove in similar conditions because I was lucky. Otherwise you could say to anyone who doesn’t immediately slow down to 35 mph the moment it starts raining on the highway, (aka everybody) that they were lucky they didn’t hydroplane. That’s simply not true.

              Yes, you could say that, and yes, it is true.

              The fact of the matter is that when it starts raining hard, you’re supposed to slow down. If you don’t slow down, you’re driving unsafely. And if you are unlucky enough to hit a slippery / oily patch and hydroplane, then you are at fault, and you pay the price. That’s how things work, whether you like it or not.

              I happened to hydroplane this time because I was UNlucky.

              The distinction between whether the other drivers were lucky or you were unlucky is irrelevant. As I said before, if you hydroplane, then by definition under the law you were driving unsafely.

              The law you quoted says to slow down as soon as the rain starts. I did. It does not say to slow down to 35 mph. That is ridiculous to do on the highway when the majority of cars are still going 70 mph.

              Again, you are making the mistake of assuming that other drivers’ behavior and whether they crashed is relevant to the question of whether you were at fault. The law does not consider it so.

              Well, that’s not entirely true. In rare cases, you can successfully argue that you couldn’t slow down to a safe speed because the other drivers were going so fast that slowing down to a safe speed would itself have been unsafe. However, this is a difficult argument to make, and if you’re going to try it, I very much recommend you retain an attorney to represent you.

              Also, if I may quote a law myself.

              (03) Rear End Collision. The operator of a vehicle subject to the Safe Driver Insurance Plan shall be presumed to be more than 50% at fault when operating a vehicle which is in collision with the rear section of another vehicle.

              First of all, the law is that the driver who rear-ends is presumed to be at fault, but that presumption can be overcome by circumstances. If you are being asked to pay for the other guy’s damages, then a determination has been made that you, rather than the other driver, caused the accident.

              Second, please note that in Massachusetts, it is possible for multiple drivers in an accident to be found more than 50% at fault. Even if the other guy were found at fault for rear-ending you, you could still be found at fault as well.

              I won’t tell you it’ll be impossible for you to win an appeal. Anything is possible, and I’m not an expert, so my advice is worth what you paid for it. But from where I’m seeing, I think it’s unlikely. If you don’t like that answer, I suggest you find an attorney with expertise in this area to consult with.

  33. Yuriy says:

    Hello,

    I was recently involved in a weather related single-car accident – my car swerved while it was snowing and the streets were not cleaned. The result was that I hit a snow bank and had some damage to my car. I did not expect to receive a surcharge notice for a weather related incident such as this but alas it happened. Now I will be appealing. Any suggestions on the best way to successfully do so? I will bring a weather report to the hearing of course. Any thoughts would be of great help!

    Thanks in advance!

    • jik says:

      I doubt you’ll win an appeal.

      If it was a single-car accident, then by definition it was your fault.

      The fact that the snow was not plowed properly is unlikely to change the appeals board’s opinion on the matter. Drivers are expected to observe the weather conditions and adjust their driving to account for them.

      To win an appeal, you’d have to prove that you could not have reasonably known about the weather conditions which caused you to slide into the snowbank. However, as you point out, it was snowing and the streets were not plowed, so it appears that the weather conditions were obvious.

      Unless you can convincingly argue that you skidded on black ice or something like that, I think an appeal will probably be a waste of your time.

      Having said all of that, I am not a lawyer, and this is not legal advice. If you think the surcharge is going to cost you a lot of money, you may wish to consult a good lawyer with experience handling such appeals.

      • Yuriy says:

        Thank you for the thoughts! Much appreciated!

        This was after active snow ended and I was going well-below the speed limit, so most likely, there was black ice. I’d need good luck proving that on a factual level, but that will have to be something where I focus my argument.

        One could also argue that the streets should have been better plowed, and despite driving carefully, nothing I would’ve done could’ve changed the car losing traction (car is 2009 but does not have stability control or traction control) and causing the spiraling of the car into some snow on the side of the street.

        Again, thanks for the advice and the thoughts. Will definitely take it into consideration.

        -Yuriy

        • jik says:

          This was after active snow ended and I was going well-below the speed limit, so most likely, there was black ice. I’d need good luck proving that on a factual level, but that will have to be something where I focus my argument.

          Unless police responded to the accident and noted in their report that there was black ice on the road, it seems unlikely to me that the appeals board would take your word for it.

          One could also argue that the streets should have been better plowed, and despite driving carefully, nothing I would’ve done could’ve changed the car losing traction…

          They’ll say that if conditions weren’t safe you shouldn’t have been driving. Drivers are expected to use their judgment and not drive in unsafe conditions.

  34. barry says:

    I was stopped at a red light and was distracted and my foot came off of the brake. My Toyota Camry rolled into a Toyota pick-up truck that had a trailer hitch. The only damage I had was a damaged licence plate (bent). The other driver said I damaged his bumper. he had a round dent on the far left side of his bumper. I believe this was damaged before I rolled into him as my bumper did not contact his bumper. We filed accident reports and my insurance company never called me to get my statement on the accident. They also never informed me that they paid a claim out for $700. I found out when I got the surcharge notice in the mail. I know I was 100% at fault with hitting his trailer hitch. But can I appeal the surcharge on grounds that I was 100% not at fault to damages that were paid out as I believe there is no way I caused the damage to his bumper.

    • jik says:

      The surcharge isn’t because of the damage to his bumper, it’s because you rear-ended him, for which you were clearly at fault.

      It’s true that the amount of damage caused by an accident can affect the surcharge. I don’t know where the cutoff is, but I don’t think $700 is enough to increase the surcharge. If I’m right, then you would have received the same surcharge even if there had been no damage.

      You should inform your insurance company that you don’t think you caused the damage to the other car’s bumper and he just used the accident as an excuse to get his already damaged bumper fixed at your expense. You can ask them whether the cost of the damage affected your surcharge. If so, then you will be in a position to make an informed decision about whether to appeal the surcharge. Having said that, I think you are unlikely to win such an appeal, given that you were clearly at fault for rear-ending the other vehicle.

      Your insurance company probably didn’t contact you to get a statement about the accident because even if the other driver was lying about the cause of the damage, it would have cost your insurance company more to dispute the other driver’s claim than to just pay it.

      • Anonymous says:

        The dollar amount to receive a surcharge is $500.00 It is always worth it to appeal a surcharge if you have extenuating circumstances that could deem you 50% or less at fault. Weather, medical situations, obstructed views, road construction are good reasons that you may not be at fault. It is definitely worth a try!

        • jik says:

          The dollar amount to receive a surcharge is $500.00

          That is not correct.

          There are “points” assigned to surcharges based on the severity, and the more points are assigned, the more the surcharge ends up costing you.

          Furthermore, there are all sorts of factors that determine how much a surcharge ends up costing you, including at the very least the other accidents you’ve had in the past few years or will have in the few years after the surcharge is incurred.

          Finally, the amount by which a surcharge point raises your insurance is based on a percentage of your policy premium, not a fixed amount.

          It is always worth it to appeal a surcharge if you have extenuating circumstances that could deem you 50% or less at fault.

          There are no extenuating circumstances here.

          Weather, medical situations, obstructed views, road construction are good reasons that you may not be at fault. It is definitely worth a try!

          There is a substantial fee for appealing an at-fault finding, and it takes a significant amount of time to prepare the appeal; time is money. Furthermore, I’ve heard that the appeals board is quite strict about appeals. I do not think it is worth appealing when the evidence is not on your side and there is little chance of succeeding.

  35. George says:

    Hello,

    Thank you for posting this. It has a lot of good information. I am about to submit an appeal in writing rather than going to my hearing. My question is, did you mail it to the address in Boston? My form does not have clear instructions on where to mail the affadavit.

    Thanks

  36. Rob says:

    I was in a parking lot and was preparing to back into a spot, when I stopped to put the car in reverse I noticed a car, parked in front of me beginning to back into a spot next to the one I planned to pull into. I gave him the right of way and kept my foot on the brake. He pulled along side me and as he was just about finished, he turned the wheel to the right and the front fender of his truck hit my passenger side rear quarterpanel. He told me he never even saw me and was sorry for hitting me. We swapped paperwork. He had just a few scrathes while I had a dent and the quarterpanel was slightly ripped from my car.

    Even though the man, who I know, told me he told his insurance company he did not see me and I told them I was stopped to let him have the right of way, the insurance company said I was 50% at fault and that we had hit each other.

    There were parked cars in front of me and ifI tried to go in reverse I would have hit him like he had hit me. Can I appeal?

    • jik says:

      I’m by no means an expert on this, and there are no guarantees, but if you weren’t moving and the other guy hit you, it sure sounds to me like you have a good case for an appeal.

  37. Amanda says:

    Hello. I was recently involved in an incident where I rear ended someone. I believe I was not more than 50% at fault for this incident for a few reasons and plan on appealing, I just wanted to get your input. I was driving the speed limit down a very busy road where the road merges from two lanes to one and immediately after the merge, the whole road curves right about 90 degrees. The time was 1700hrs (5pm) and the sun was setting therefore it was extremely sunny and very hard to see because the glare was so bad. The car in front of me, as was everyone else in the line of traffic, was slowing down due to the upcoming curve in the roadway. What I couldn’t see was that the car in front of me was turning left. Since the glare was so strong, it was nearly impossible to even see her brake lights, let alone determine between normal slowing down for the curve, or stopping to make a left turn. I am almost positive she did not signal, but then again, it was very hard to even see her brake lights with the sun setting so brightly. I also believe she stopped short.

    I hit her very lightly, my driver’s side front bumper hit her passenger’s side rear bumper. No one was hurt, there was very little damage to either car, it was very hard to tell whether there even was damage to her car! The police did show up and didn’t issue any citations.

    This location is a terrible intersection. I’ve seen numerous accidents here so I’m sure the police know how bad it is as well.

    I think the weather conditions and the lack of a citation help prove I am less than 50% at fault?
    Thanks, Amanda

    • jik says:

      When it comes to rear-end collisions, the presumption is that it is every driver’s responsibility to keep a safe distance between them and the vehicle in front of them given the current driving conditions.

      To defeat the presumption of fault in such a situation, you will need to demonstrate that the vehicle in front of you did something so entirely unreasonable and unusual that you could not possibly have anticipated it. Given your description of events, it doesn’t seem likely that you will be able to do so.

      Glare from the setting sun happens every day. Drivers are expected to know how to cope with it, e.g., by maintaining a larger distance from the vehicle in front of them, using their sun visor to block out the glare, wearing sunglasses, etc.

      It doesn’t really matter if the car in front of you was signaling or not, because cars fail to signal all the time, and you are expected to drive defensively enough to protect against that.

      It doesn’t really matter if the car in front of you stopped short, because cars stop short all the time, and you are expected to maintain enough distance to be able to stop safely when that happens.

      I do not mean to pass judgment here on whose fault your accident was in a real-world sense. I am merely commenting on the legal aspects of it, and from that point of view, I don’t think you can prevail.

      • Anonymous says:

        I would recommend appealling, glare could be a “weather-type” factor.

        • jik says:

          Glare is a normal weather condition, which drivers are expected to anticipate and plan for. The presumption of fault for a rear-end collision in particular is very strong. Given the described circumstances, I think it is highly unlikely that an appeal would be successful. If I were in that situation, I would not waste my time appealing.

          • Anonymous2 says:

            You should appeal. I was involved in a similar accident where the sun was strong, busy intersection, and the person stopped short. I had a passenger in my truck and confirmed all of the above statements. Besides the person I rear-ended coming to two separate stops within 100 feet of the accident.

            The first time the car in front of me came to a stop was because another car stopped at a turning lane red light, was in the wrong lane attempting to merge into the moving straight lane while the light going straight was green. This road had two turning lanes going left, two lanes going straight, and one lane going right at this light (VERY BUSY) and the intersection was a 5 road intersection.

            I subsequently slowed down and came to a crawling stop the first time, as she didn’t let the car in and neither did I because the car in the turning lane was too close to the car in front of him to get into our lane. The car in front of me began to go again as I did as well (less than 50 feet from the light). The light was still green and as the driver in front of me was at the intersection the light had begun to turn yellow, the sun glared my vision (had my sun visor down, it didn’t matter) and she came to a sudden stop. I attempted to stop and barely came in contact with her, but because I was in a 7500 pound truck and she was in a Honda Civic, my less than 5 mph tap turned out to be $5000 in damages. I am going to attempt to appeal it, because there were a lot of factors, distractions involved in my accident. And before you say it Jik, “that I am at fault because I did not maintain a safe distance and rear ended the person”. The weather factor and the fact that a green light means go and yellow means slow down, not stop is a reason to appeal. Safe distance was used or I wouldn’t have been able to come to a stop the first time she came to a stop because of the driver in the wrong lane (at the same intersection, where my accident occurred). The sun glared my vision the second time and the reason I know she stopped at a yellow light when at the intersection is because of my passenger in my truck.

  38. Janet Gross says:

    My question has nothing to do with the previous comments but I can’t seem to find a consistent answer to my question. In October of last year I filed an appeal for an rear end collision to another car (truck actually). My brakes failed and hit twice-no damage to the truck my car was totaled. It is now February and I haven’t heard anything. How long does the appeal process take? Thanks for your help.
    Sincerely,
    Janet Gross

  39. JnLy says:

    My car was parked on the left side of a one strip parking in an aparment complex. I backed up into a car that was parked perpendicular behind my car about two feet away. Note: it was illegally parked there, she said she parked to get her mail and it was parked the wrong way if another car was coming. Well my insurance says it’s my fault for not looking, but she shouldn’t have been parked there! I didn’t see a moving car and backed up and in less then two seconds, there was a bump. I don’t have any damages whatsoever and she has an inch dent. Not a big deal, but how to I do an appeal? Is is worth it? How do I get one started? It’s not a huge claim, but I don’t want this on my record or my insurance to go up.

    • jik says:

      If you backed into a parked car, there’s no point in appealing. You will lose.
      It doesn’t matter whether the other car was parked illegally. It was plainly visible to you before you started moving and you bumped into it anyway.

  40. namey says:

    Ever heard of a no fault finding when there’s no other parties?

    The road was porous and scarred up and during a rainstorm, I was under speed limit but still lost control and damaged my car. Considering an appeal.

    Cop on the scene didn’t give me any citations.

    • jik says:

      Your comment is confusing. Do you mean a fault finding rather than a no fault finding? Because it sounds like what you’re complaining about is that you were found to be at fault.

      In any case, if there are no other vehicles involved in an accident, then you can obviously be found more than 50% at fault and have points added to your insurance. If there’s no one to share the blame with, then any fault makes you more than 50% at fault.

      To successfully appeal, you would have to argue that you were driving with reasonable care given what you knew about the road and weather conditions, and that the accident was caused by circumstances beyond your control that you could not have reasonably anticipated. It’s much harder to make that argument for a single-vehicle accident, since almost by definition, if you got into a single-vehicle accident, you weren’t driving with reasonable care.

      • namey says:

        Well if a tornado throws your car into a house there’s no other car, but it shouldn’t be your fault.

        I didn’t mean fault finding.

        My argument is that the road condition and weather accumulate to over 50% fault, thus my fault is less than 50%, so go away SDIP. I’m just not sure if there is any precedent in appealing fault for single vehicle matters.

        Thank you for your reply; notably the burden of proof language.

        I’m not very optimistic but $50 is worth spending for the potential upside.

        • jik says:

          Ah, I understand what you meant now. Sorry for the misunderstanding.

          There is certainly precedent for appealing a fault finding in a single-vehicle accident. However, like I said, there is an extremely high burden of proof in such accidents to overturn the original finding of fault.

          • namey says:

            Thank you and thanks for this blog post in general.

            It’s annoying how they don’t describe the burden of proof. Presumably it’s preponderance of the evidence… just says “by producing sufficient evidence” in the CMR. (211 CMR 74.00).

            Cheers.

  41. randy says:

    I hope you didn’t renew your insurance with that company.

    • jik says:

      Why? My wife would have been issued the same surcharge regardless of which insurance company we were using. The SDIP program requires insurance companies to assume that the driver is more than 50% at fault in certain circumstances, including an open-door accident such as this one.

  42. john says:

    hello–I just filed an appeal claim today, and sent in my $50.00. I was trying to merge right, because of a traffic back up. right lane was blocked after I exiting off ramp and I had to go in left lane, as I would be backing up more traffic, and had irate and honking drivers behind me. I had one and a half car lengths between me and the other driver, who was on cell phone. I was more than half way over into right lane, when he sped up to prevent me from moving over, and we tapped front fenders–not big damage. I couldn’t stop in time, and risked being hit from behind, if I did
    today when I got the surcharge notice, decided to appeal it. I don’t think I am more than 50% at fault, and hopefully it will get overturned—–stranger things have happened. thanks for posting

  43. Susan says:

    How were you able to apeal in writing rather than attend a hearing?

    • jik says:

      Why did you post the same comment under two different names one minute apart? That’s a little weird. Having trouble remembering your name?

      When you receive the notice of your hearing date, it includes instructions for how to submit your appeal in writing if you would rather do that than attend the hearing.

  44. Laura says:

    How were you able to appeal in writing rather than actually going?

  45. Trakadas says:

    My daughter has a surcharge appeal hearing and is out of state at college. I need to go in her absence with an affidavit. Is there a general form?

    Also, she was sited at the accident scene and her the foundings were not at fault. Will this no fault decision be enough evidence to find her less than 50% at fault?

    • jik says:

      My daughter has a surcharge appeal hearing and is out of state at college. I need to go in her absence with an affidavit. Is there a general form?

      The appeal hearing notification has a form on it, but I don’t think you’re obligated to use that particular form. If you’re attending the hearing in her place, You can just have her prepare her statement / evidence / etc. in whatever form she wants and get it notarized. However, if your daughter can’t appear in person, I suspect there’s no point in your going in her place, unless you were a witness to the accident or for some other reason have relevant first-hand evidence to present. If not, your daughter should just mail back a statement like my wife did. There are instructions on the appeal hearing notification.

      Also, she was sited at the accident scene and her the foundings were not at fault. Will this no fault decision be enough evidence to find her less than 50% at fault?

      If she was issued a citation at the accident scene, then it seems like there is a strong presumption that she was at fault, and it will be difficult to overcome that presumption. I don’t understand what else you’re saying above — what does “and her the foundings were not at fault” mean? — so I can’t comment further than that.

  46. LJ says:

    I am going to my hearing today. My accident was a one vehicle (my own) but I damaging guard rails on the highway – not to mention totaled my car. This happened because I was avoiding tractor trailer tire pieces which littered both lanes of the highway. I guess next time I should just hit the tire pieces? I am doubting my outcome will turn out as well as yours though.

    • jik says:

      Do you have any evidence that there were semi tire pieces on both lanes of the highways? A police report that mentions them? Pictures? Anything? Did the police officers who responded to the accident say anything about it?

  47. boblothrope says:

    Was there any other hassle in the process? How much was the appeal fee? Was the state the cause of the delay from September to March, or did you just wait that long to file the appeal?

    Do you know if the other driver will be surcharged instead, or will the insurance company have to actually pay a claim without collecting more money back in surcharges?

    • jik says:

      Appeal fee was $50. There were two causes of the delay: (1) the insurance company coded the surcharge wrong the first time they submitted it to the SDIP board, and that had to be corrected before I could file an appeal; (2) once I filed the appeal, it took several months for a hearing to be scheduled, after we were sent a postcard warning us that it could take up to a year depending on the size of the backlog.

      It is my understanding that a no-fault finding for one driver does not cause the other driver(s) in an accident to be found at fault automatically. It’s entirely possible that the other driver’s insurance company found him at fault too — there is nothing in Massachusetts law precluding both drivers from being found at fault in an accident. Otherwise, I don’t know if an insurance company is allowed to revisit a previous finding based on the outcome of an appeal hearing. I also don’t know if they are even notified about the outcome of that hearing, given that it was actually about my wife, not the other driver.

      Having said all of that, my best guess is that the reversal of my wife’s surcharge will have no affect whatsoever on the other driver.

      • Nangjing says:

        I had an accident in a very heavy raining day. I was turning right and at the turn my car was hit. The person behind me said I hit her car. I am sure before i turn I checked there is no car in my sight. So I filed appeal and the healing is scheduled. The insurance agent told me most people do not attend the healing in person. My question is, would there be any impact on judge between attending healing in person or submit in writing? Thanks.

        • jik says:

          It’s a hearing, not a healing.

          Whether you should attend the hearing in person depends on whether you believe that you will make a better impression in person than in writing. Only you can decide that, perhaps with the help of people who know you well.

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