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
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!
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.
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!
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.
I won! So an animal running into the road must be considered unforeseeable.
Congratulations! That’s good to know.
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!
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.
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?
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.)
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!!
If it happened as you described, then you were not at all at fault!
There’s a donation button to the right.
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.
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.
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?
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:
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.
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.
Thank you for the advice. I appreciate the help. I will work on obtaining the letter, and I will let you know what happens.
I just found out that they found in my favor on the surcharge appeal. Thank you so much for your advice!
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!!
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.
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?
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.
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.
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.
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!
Playing devil’s advocate…
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.
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.
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:
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.
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.
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.
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.
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.
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.
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.
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!
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.
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
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.
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.
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.
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.
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!
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.
There are no extenuating circumstances here.
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.
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
I mailed it to the address shown above at the top of the letter, obviously.
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?
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.
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
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.
I would recommend appealling, glare could be a “weather-type” factor.
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.
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
Mine took 7 months to get a letter and the date was 1 month after I received the letter so 8 months total
It can take up to a year to get a hearing. It’s very much worth the time and the $50 if you win the appeal.
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.