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:
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:
- 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.
- 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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Tags: auto insurance, Massachusetts RMV, SDIP
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
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.
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.
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.
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.
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.
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.
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.
I hope you didn’t renew your insurance with that company.
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.
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
How were you able to apeal in writing rather than attend a hearing?
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.
How were you able to appeal in writing rather than actually going?
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?
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.
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.
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?
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?
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.
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.
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.