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

  1. Shannon

    I just got a surcharge notice on my 1 vehicle accident. I was traveling on a narrow, winding, yet well traveled road not far from home. I noticed the town had not treated the road at all. Since I was driving a rwd Ford van, I was going about 22 mph. Nevertheless, I hit a batch of black ice, and the van veered the right, striking a tree head on, totaling the van. My police report says that the accident was due to poorly treated road. In fact, the responding officer also slid in his cruiser while responding to my accident. Do you think I should try to get my surcharge vacated?

    Reply
    1. Don

      I can’t believe an accident report from a police officer actually attributed primary blame for the accident to a poorly treated road (the officer, if he/she did this, should either be fired or retrained). But, if you truly have a copy of the police officer’s report that clearly attributes blame to a poorly treated road, then yes, in my opinion, you are well within your rights to seek a vacation of the at-fault determination, and if I were you, I would do that. In the other 99% of the cases, you would not bother, as you would be considered to be traveling too fast for the conditions and you would just be wasting your time and money.

      Reply
      1. jik Post author

        I don’t think it’s necessarily true that it’s a waste of time and money to appeal without a policy report acknowledging that the road was poorly treated. It’s not unheard of to get a surcharge overturned simply by arguing that there was black ice on the road and the locality responsible for sanding or salting the road hadn’t done it. You have a better chance if you can *prove* that, e.g., if you take photos of the black ice after the accident and take photos of other nearby roads that *were* salted or sanded, but even without that, if the accident really was caused by black ice, I’d appeal.

        Reply
        1. Tairan

          Thanks for your suggestion, jik. Similar thing happened to me, and it is a single-car accident. I would like to find a way to appeal. My logic is: the MASSDOT didn’t clear the MASS pike, I paid particular attention to the road, and reduced the speed, but eventually lost control caused by a black ice, and hit the guardrail. I paid particular attention before the accident, so that it was a single-car accident on the crown MASS pike. I will also mentioned my clear and long driving records. Do you think this argument is reasonable, and useful? Appreciate any suggestion, and feedback. Thanks.

          Reply
          1. jik Post author

            Don’t have anything useful to add to what I already wrote above.

            Reply
  2. Greg

    I would appreciate any feedback or advice on my wife’s accident and appeal for a surcharge that she was found to be at fault for. The other vehicle was going straight and abruptly stopped for no reason before proceeding forward and stopping again to turn left onto a street. They changed their mind and turned right into a gas station when my wife was passing on the right. The other driver claimed that she had her blinker signaled to the right.

    I was travelling South on Main Street and the vehicle in front of me had their left turn signal on and stopped to turn left onto Albert Street. The vehicle crossed the double yellow line before stopping, and there was more than enough room to safely overtake and pass the vehicle on the right. There is also a bus stop at the location. Since the vehicle was turning left, I overtook the vehicle on the right. When I overtook the vehicle and did not see it anymore, the vehicle suddenly accelerated and turned sharply to the right crashing into my driver side fender and wheel. As soon as the accident occurred, a lady (later determined to be the driver’s mother) came running out of the nearby gas station and started yelling at me. The lady called the police and they soon arrived.

    I believe I am not more than 50% at fault for the accident because the vehicle in front of me had their left turn signal on and stopped to turn left onto Albert Street. The General Law in Part 1, Title XIV, Chapter 89, Section 2 states that “the driver of a vehicle may, if the roadway is free from obstruction and of sufficient width for two or more lines of moving vehicles, overtake and pass upon the right of another vehicle when the vehicle overtaken is (a) making or about to make a left turn, …” Since there was more than enough room for two lines of moving vehicles to safely overtake and pass the vehicle on the right, I obeyed the law and did that. I have reason to believe the driver of the other vehicle was distracted by their phone and possibly in a phone conversation with their mother at the time of the accident because as soon as the accident occurred, the driver’s mother came running out of the nearby gas station and started yelling at me and blaming me for the accident.

    Reply

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