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
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 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?