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

By | April 9, 2010

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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171 thoughts on “How to successfully appeal a Massachusetts auto insurance (SDIP) surcharge

  1. Lucy

    Hello!
    I was hoping you could offer some input/advice? I was recently involved in black ice accident that involved a house. When I pulled my car (Honda Fit) down the driveway (which is an incline) I was unable to break on the black ice which resulted in me hitting the house. The damage includes (as far as I know) the outside door frame’s vinyl is cracked and door does not shut properly. I have yet to make an insurance claim yet because the home owner wanted to bring in a contractor to look at damage to avoid. But unfortunately this incident has occurred almost a week ago and they have failed to do so. In Massachusetts I know homeowners/landlords are responsible for snow removal/ice removal from their sidewalks and driveways from slip and fall. Do you think if it goes through my insurance I would have a case for appeal? The driveway was completely covered in black ice, was stuck in it for over 1.5 hours! Any insight would be great! Thanks

    Reply
    1. jik Post author

      Please keep in mind the fact that I am not an attorney and my advice is worth exactly what you paid for it. Having said that…

      Since you were the only vehicle involved in the accident, then (as noted in another recent comment exchange on this page) the insurance company is actually legally obligated to rule that you were more than 50% at fault in the accident and issue a surcharge notice.

      Having said that, it doesn’t sound to me like the accident was actually your fault, and I think there’s a good chance that you could get the surcharge overturned on appeal.

      On a somewhat independent question, it’s possible that you’re going to get a bit of grief from the insurance company about not reporting the accident immediately. Massachusetts law requires accident reports to be filed within five days for any accident that causes injury, death, or over $1,000 worth of damage. I suppose you could argue that the owner of the home you slid into hasn’t yet told you how much damage you caused, so you had no way of knowing you were required to file a report. Furthermore, I’m not entirely certain that this law applies to accidents taht occur on private property. On the other hand, if you read the fine print of your insurance policy, it’s possible (and indeed likely) that the insurance company has a time limit for claims to be filed and reserves the right not to pay claims that are filed late. For example, my Amica policy says:

      We do not know about accidents or losses until you or someone else notifies us. We, or our agent, must be notified promptly of the accident or loss by you or someone on your behalf. The notification should include as many details as possible, including names and addresses of drivers, injured persons and witnesses. If you or any person seeking payment under this policy fail to notify us promptly of any accident or claim under Parts 2, 3, 6, or 12 of this policy, we may not be required to pay claims under any of these parts.

      If you are filing a claim for damage to your auto, you or someone on your behalf must file a proof of loss within 91 days after the accident.

      Notice that it uses the vague term “promptly,” and the only time limit specifically listed is quite long, 91 days. So with any luck you’re in the clear.

      Reply
  2. NAM

    I was in stop and go traffic on a rain slicked 128 S @ 6:30 AM in October this year. The car in front of me started to move and suddenly stepped on his brake. The car in front of him swerved to avoid the car in front of them. I stepped on my brakes and slid into the rear bumper -my airbag did not deploy-. This was on a 2 lane part of 128 that sloped down and I had no room to veer off. Would it be worth my while to appeal this?

    Reply
    1. jik Post author

      Honestly, I’m not sure.

      On the one hand, the “party line” is that drivers are responsible for maintaining a safe following distance for the current weather conditions, and if you rear-ended another vehicle on the highway, then by definition you weren’t maintaining a safe following distance. So if the appeals board follows “the rules,” it seems unlikely that they’ll overturn your surcharge.

      On the other hand, I’ve heard anecdotal stories about the appeals board overturning surcharges when there really wasn’t any justification for doing so. Kind of a, “Well, you took the time and effort to show up, and yeah, the weather really was crappy that day, so we’re going to cut you a break,” kind of thing.

      My gut is that you probably won’t be successful if you appeal, but I don’t want to tell you there’s no chance, so you’ll have to decide for yourself whether it’s worth the time and $50.

      One thing I can tell you is that I think it’s highly unlikely that you would succeed in appealing by mail. I think you’ll need to show up for the appeal in person to have any chance of succeeding.

      Reply
      1. NAM

        Jonathan,

        Thank you for replying. I should also mention that I had a similar accident -rear ended someone on 128 about 7 years ago-. To the best of my knowledge, my insurance company will have a rep there at the hearing and I suspect they will introduce my past transgression and this will probably weigh heavily on the decision. To this affect, it probably will not be worth my time and cost!

        Reply
  3. Kay

    Is there any chance of winning in appeal in a situation where the other driver was at fault, but fled the scene and cannot be found? I was driving around a corner and someone was coming at me head on in my lane. I had to swurve and ended up hitting a telephone pole. Ins. Co. is saying I am more than 50% at fault! Thank you.

    Reply
    1. jik Post author

      It doesn’t sound like you were more than 50% at fault. The notice you received notifying you about the surcharge should have given the basis for the finding. Why did they say you were more than 50% at fault?

      Reply
      1. Kay

        Standard of Fault Code (19) Explanation: Single Vehicle Collision. The operator of a vehicle subject to the State Driver Insurance Plan shall be presumed to be more than50% at fault when operating the only vehicle invovled in a collision. [I was not the only vehicle involved, the other vehicle fled the scene!]

        Reply
        1. jik Post author

          From my reading of the law, the insurance company was required to find you more than 50% of the law because you didn’t collide with the other vehicle. Yes, that’s sort of stupid, but that does appear to be what the law says.

          So yes, you should absolutely appeal, and I think it’s likely that the finding of fault will be overturned by the appeal board.

          Reply
          1. Kay

            Thanks, I’m going to try. What this law says to me is that I should always try to hit the other vehicle in any sitution and cause even more damage, injuries and possibly death!

            Reply
            1. jik Post author

              It’s a bit more complicated than that.

              When the legislature decided to give the insurance companies the responsibility for assigning surcharge points, they wanted to lay down a set of rules that would be clear and unambiguous enough that it would be very difficult for the insurance companies to misapply them. This was actually intended to protect consumers by preventing the insurance companies from either (a) inappropriately assigning fault and causing people’s rates to go up, or (b) giving inappropriate preferential treatment to some customers over others (i.e., discrimination).

              However, as a result of the rigidity of the rules, there are circumstances when they require the insurance companies to find fault where it isn’t really appropriate. That’s where the appeals process comes in. When such a situation occurs, the appropriate redress is for you to appeal the surcharge and explain the situation in detail to the appeals board.

              In short, the system is working the way it should. Now, if you file an appeal and explain that you hit the pole because you had to swerve to avoid another driver coming straight at you in your lane, and the other driver fled the scene, and the appeals board refuses to overturn the surcharge, then you’ll have something to complain about. ;-)

  4. IKE

    I was involved in an accident last February where i skid off the road while trying to enter my apartment. i hit the front wheel area of the other car. it had snowed all day and was raining at that moment. my speed was between 15 and 20mph. the insurance has placed a 4points on me. i know am not at fault cause i was not driving at top speed and also the weather was very bad.

    Reply
    1. jik Post author

      Just because you were “not driving at top speed and the weather was very bad” does not mean you were not at fault.

      Drivers are required by law to at all times drive at a safe speed and with appropriate care for the current weather conditions.

      From the point of view of the law, unless you can argue that you encountered something weather-related that you could not reasonably have foreseen, you’re at fault.

      Having said that, the appeals board doesn’t always apply the law exactly as written. If you show up and make your case, they may overturn your surcharge. Depending on how much the four points are going to cost you in terms of increased premiums, it might be worth the $50 fee and time.

      Reply
  5. paul

    on a single lane road, (at a T intersection on the right and a driveway on the left) the car in front of me was slowing and signalling for a left turn. i moved into a breakdown lane to pass on right.
    the nose of my car was even with the passenger door of the other car when that vehicle swerved towards me, hit me and forced me onto the curb.
    by the time i got out of the car, the other driver had his right signal flashing and denied any intention to turn left.

    what kin of odds would i get to overturn a more than 50% at fault finding?

    Reply
    1. jik Post author

      Generally speaking, it is legal to pass someone on the right when they are slowed or stopped to make a left turn, with their left turn signal activated.

      However, as far as I can tell, it is not legal to pass someone on the right in the breakdown lane.

      Therefore, I doubt you will be able to get the surcharge overturned.

      Reply
  6. Ken

    I was in a car accident in January due to a medical condition. My Blood sugar level suddenly dropped and I went unconscious. I went off the road and smashed into a pole…..totaling my car. I am a very safe driver, no tickets, no DUI’s………and this wasn’t a result of me driving recklessly. It was a one time medical issue. I only damaged my own car, there was no other car and no other people or property damaged. I just received my premiums for 2015 and my insurance DOUBLED. It went from $1100.00 per year to $2269.00 This seems excessive to me. I was advised to appeal based on the medical issue. Do you think I have any chance of winning the appeal?

    Reply
    1. jik Post author

      Do you think I have any chance of winning the appeal?

      Yes, but be prepared to answer when they ask what you’ve done to ensure that the “one time medical issue” you experienced isn’t going to recur.

      Reply
  7. BRB

    I will be appealing a 4 point surcharge in Ma in a few weeks. I was in an accident in Feb. I had come to a full stop at a stop sign, looked both ways and attempted to enter the intersection when all of a sudden my front drivers side corner was hit by an on coming car. His car somehow caught the bumper of my car and the front bumper was ripped off.
    I was given a citation because it was my car that had the stop sign. I feel that I am less than 50% at fault. How can I appeal this?

    Reply
    1. jik Post author

      Why do you feel you are less than 50% at fault? Your brief description of the accident doesn’t provide any grounds for an appeal.

      Reply
      1. BRB

        Because after looking both ways I looked again before preceding into the intersection. The car came out of no where which makes me think they were speeding. (speed limit is 30 mph)
        After hitting my car, their car preceded across to the other side of the intersection and swerved back to the right side of the road before it came to a stop.

        Reply
        1. jik Post author

          Did police respond to the accident scene? Were you or the other driver cited? Did the police write up a report about the accident, and if so, do you have a copy, and if so, does it say anything that might support your theory that the other car was speeding? Were there witnesses to the accident? Did they give statements to the police, or if not, did police get their contact information such that you could contact them to get a statement now? Was your view at the intersection obstructed in any way (e.g., parked cars prevented you from seeing too far down the road from which the other car came, or that road is curved)?

          If you go into the hearing and say, “I looked both ways carefully before proceeding. The car was not visible when I entered the intersection. It came out of nowhere and hit me. I believe it was speeding,” then it’s possible that will be enough to overturn the surcharge.

          However, if the other driver submitted a statement to his insurance company telling a different story, and there are no police reports or witness statements supporting your version of events, and you can’t show that your view of the road the other car came from was limited, then I’m not sure you will be able to prevail.

          I think if I were in your shoes I’d probably go ahead and appeal, but I wouldn’t be too confident of success.

          Reply
          1. Anonymous

            fyi…I lost my fight against the surcharge. But at least I gave it a try, I really didn’t expect to win because I believe the State and Insurance Companies are negative against giving someone a break. I was told they “do not” take into account whether this was a “first” accident or not, they don’t take into account the driver’s driving record. Which I think is wrong and unfair.
            But I did change insurance companies and saved $1000 with even more coverage.

            Reply
            1. Eric

              If you don’t me asking, what insurance company did you end up picking?
              Thanks

  8. Maxwell

    I was involved in an incident in January. I attempted to overtake a slow-moving vehicle but in doing so inadvertently slipped on black ice and lost control of my car. No damage to the other car and I landed in the snowbank. Police investigated and issued me a citation, which I was later found NOT RESPONSIBLE for. I was happy until recently the town it was in is claiming guardrail damage under my policy, which will lead to a surcharge that will essentially double my monthly premium. Upon investigating the scene, I saw that the replaced guardrail is in fact 100+ feet away from the address of the incident stated in the police report. If it is assessed, what do you think my chances of successful appeal is? My main gripe comes from the fact that my insurance company is not taking my documentation and proof seriously and is, for some reason, eager to pay the claim.

    Reply
    1. jik Post author

      If you don’t think you did the damage the town is claiming you did, then you should appeal. The insurance company has no incentive to dispute the town’s claims… That’s what the appeal process is for.

      Reply

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