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.


Andrea Kamens

Print Friendly, PDF & Email

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

  1. Nikolaus Kennedy

    Hi Jonathan Kramens
    Can you tell me what I should do for my Surcharge. My truck slipped on the ice on the trail in my woods in my homes backyard. The truck glanced on the tree on my left front fender . I was driving less than 5 miles per hour. Do you think that I have a potential to change the surcharge notice? I was driving alone in the truck .
    Thank you,

    1. jik Post author

      A surcharge appeal for a single-vehicle accidental collision with a stationary object is unlikely to be successful.

      There’s a chance that you could succeed on the basis of the icy conditions, but it seems to me like rather long odds. I believe that the fact that you were driving on your own property makes things worse. Arguably, you should be aware of the driving conditions on your own property, and you are responsible for maintaining the roads and trails on your property.

      If I were in your shoes, I wouldn’t try to appeal.

      Your mileage may vary. I’m not a lawyer, and my advice is worth what you paid for it.

  2. bita


    Hit snow /rock on road on extremely snowy windy day . not got letter At Fault accident

  3. Andrew Wagner

    Hi Jonathan,

    Thanks very much for maintaining your blog and post about contesting a surchargeable offense. Its a great resource. In my instance I was attempting make a left turn down a street when I noticed signs indicating the street I wanted to turn down was closed. These signs were located some distance down the street and were not visible on approach to the intersection. I then turned off my signals and was struck from behind by a vehicle attempting to pass me on the right, while my vehicle was stationary. The vehicle clipped my right front wheel well and bumper causing minor damage. I filed a claim with my insurance company who then informed me that I (the stationary object in this scenario) was at fault. The argument they presented was that since I was not technically rear ended they could find me at fault. This occurred in October 2017 and at the time I didn’t understand fully what a surchargeable offense was or how serious the consequences are for your driving record so I opted not to contest. I have since contacted the Merit Rating board and they have agreed to send me a late appeal form. Aside from the delay, do you think my appeal is reasonable? From my perspective, I am only at fault for not appealing this offense earlier.

    1. jik Post author

      I don’t understand how the vehicle trying to pass you clipped your right front wheel well and bumper in your scenario.

      It seems to me that a car preparing to make a left turn would be either parallel to the roadway they’re currently on or perhaps angled slightly to the left in preparation for completing the turn. In either of those orientations it would be extremely difficult — almost impossible — for a car passing on the right to collide with the turning car’s right front quadrant.

      Can you tell us more about how this happened?

      1. Andrew Wagner

        Certainly, the intersection I was attempting to make a turn at had no turn lane, only a single lane of travel in each direction. There is however a large margin along this road where cars normally park. The other vehicle swerved into this margin to cut around me (the vehicle attempting a turn) and then cut back quickly into the legal lane of travel. As you suggested I was parallel to the road but the other driver anticipated that I wouldn’t be by the time they cut back since they were expecting me to complete a turn. The result was that they clipped my right front wheel well and bumper with their left rear bumper. I should note that I judged the other vehicle to be traveling at a considerable speed when this happened and despite the inconvenience this has caused me I’m glad the incident wasn’t more serious. Thanks very much for taking the time to listen to my story and offer your advice.

        1. jik Post author

          I can’t imagine how the insurance company justified finding you at fault. The scenario you described does not, as far as I recall, match any of the scenarios in which the insurance company is required by law to find you at fault. I think they were just wrong. I’d definitely appeal if I were you. And next time pay attention when you get the surcharge letter. 😉

          1. Andrew Wagner

            Thanks very much for the encouragement. I reached out to a lawyer who confirmed your assessment. He did mention however that in his experience even very strong claims like mine are not always successfully appealed. This raises an interesting question, are the records of the Merit Rating board public? I’m curious what a careful analysis of their appeals would reveal. I agree that the circumstances of my case indicate that I am not at fault, but I can make the devil’s argument that since the other vehicle did not technically rear end me, making the other driver automatically at fault, there is nothing in the law that requires my insurance company to find me not at fault. Furthermore since my insurance rate increases when surcharges are added to my record it seems my (or any) insurance company is incentivized to find any claimant at fault unless a set of rather narrowly defined scenarios automatically assigns fault to one part or the other. If I were my insurance company I would have found me at fault too, since the burden of proving otherwise falls to me. In any case I’ll keep you posted and will happily send you a copy of my appeal letter should it prove successful. I’ll also try doing a little digging into Merit Rating board statistics.

  4. Milo

    Hi, Thank you for the post and for sharing your appeal affidavit.

    I recently had an incident where I was driving way below the speed limit but it was snowing heavily and while trying to take a right turn my car skid out of control and ended up crashing on the side of the road and landed on a small rock. There was absolutely no visible damage to the car but the undercarriage damage from the rock was substantial. The roads were not plowed very well and were very slippery and I have a picture of the roads as well as the angle at which my car hit. The fact that the airbags didn’t open up means the speed was very low and I couldn’t have possibly done much to control my car at that point. And my tire treads are decent too. Should I appeal? I would love to have your thoughts on this. Thank you.

    1. jik Post author

      As noted in other comments below, the driver is almost always found to be at fault in single-car accidents.

      The driver is responsible for knowing the road conditions and driving at an appropriate speed for those conditions. It’s sort of by definition a failure in judgment if you were driving on poorly plowed roads fast enough that you went into a skid and ran off the side of the road. Regardless of how slow you were driving, apparently it wasn’t slowly enough, and who else is to blame for that but you?

      I don’t really see what grounds you would have for an appeal.

      Having said that, as I’ve also noted in comments elsewhere, I’m not a lawyer and my advice is worth exactly what you paid for it. If you want competent legal advice, pay a lawyer who handles such cases for an hour of his time to discuss it.

    2. Lisa Babs

      Hi Milo,

      I was in a similar predicament a few years ago and I wrote an appeal for an accident due to the weather. I was going under the speed limit due to the snow and when I went to stop at a red light my car slid in the other lane. I was then hit by another car. I got an automatic surcharge for being out of my lane. I wrote a letter and was granted my appeal.

      My letter said I ” was going slower than the speed limit because of the weather and the condition of the roads” and described the road conditions and the details of the accident. I concluded that the accident “was due to weather and road conditions and I believe I was not more than 50% at fault for the accident”.

      Now I’m also not a lawyer, and I know our two cases are different. But I can say it worked for me and the surcharge was removed.

    3. Chris

      Thanks to jik for posting this article. I followed his example and appealed a single car accident for my daughter. She was found less than 50% at fault. As for Milo, I’d say appeal it. I don’t see any downside to appealing it.
      State your case, let the Hearing officer determine whether or not you were more than 50% at fault. I spent a lot of time trying to understand what applicable standard of at fault was and found little information.

      It’s a governing presumption that you are at fault in a single car accident, it’s up to you to rebut it.

  5. Seekay

    On 9th December last year I was involved in a rear end collision and my insurance company found me at-fault for the incident, it was snowing that night and I was driving less than 10mph suddenly the driver in front of me hit brakes (an accident happened in front of her so she did a instant full stop), though there was more than a car length gap I couldn’t avoid collision because of the snow/ice road surface, brakes couldn’t stop car, it just floated on the icy surface and hit rear end of the car, though my car had some damages to the bumper etc. no damage to the car in front of me not even a scratch, what are my chances of successful appeal? please advise, thanks in advance.

    1. jik Post author

      I don’t think your chances are great, but if I were in your shoes I’d consider appealing.

      You will want to bring evidence of what the weather conditions were that night.

      You will want to bring evidence of the fact that there was another accident which prompted the car in front of you to stop short, if you can get it. Did you take photos? If not, contact the local police department for where the accident occurred and find out if any reports were filed about either your accident or the earlier one which contributed to yours.

      Rear-end collisions are tough, but if you can make a solid case with evidence, you might prevail.

      1. Seekay

        Thanks for the quick reply, I have taken few photographs from the place of incident, collision I was involved no one got hurt so police told me to call insurance and asked me file a report later at police station which I did very next day, other accident was major so police and fire department reached to the scene of accident at same time they approached me as well to ask whether anyone got hurt, is there a way to get the crash report from police for the other accident, please advise.

        1. jik Post author

          is there a way to get the crash report from police for the other accident, please advise.

          Seems like you’d be better off asking the police that than a blogger.

  6. Kimheang SOK

    On Friday 21 2017, 3:50 pm i was traveling from work toward to home. Later on I arrive at wilder street and I travel at the same speed (20). Then I saw stop sign and I stop my vehicle and look left look right carefully, and suppose to go straight but suddenly the car was travelling from another side driving with the over speed (40-50) which was diving by the young boy holding the learner permit in his hand and hit my car. My car was total lost in the front side. And everyone is OK. Finally, the police came and do report about everything. The corp also issue me a citation. They said that i’m wrong more than 50%. So, What’s the solution? Please advise!
    Thank you!

  7. Shahenaz

    Hi Dear. I need your advise in an accident of my husband which has led to surcharge to him. We believe its not his fault. Here is what happened
    He was driving in traffic and he was on red signal and waiting for right turn signal to be available. Then signal started for right turn, the car on the fron started moving and suddenly stopped due to pedestrian crossing the road. My husbands car was in safe distance but due to front car driver slammed break suddenly, he did not get enough time and bumper of his car touched to front car. It was minor scratch only on both sides. If there was a padestrian crossing the road, the front driver could have seen him earlier, he started driving without letting padestrian to cross the road and stopped the car suddenly so it is his negligence. But I have been provided surcharge beibg on the rear vehicle. That is not my husbands complete fault. How to present this in appeal to get justice? Thank you.

    1. jik Post author

      Legally speaking, if your husband hit the car in front of him when it stopped short then by definition your husband’s car was not at a safe distance, since he did not have enough time to stop.

      Whether the car in front of you could have avoided starting and then stopping short is beside the point. Also, given the circumstances you describe, there’s no way of knowing if it’s true that the other driver “could have seen” the pedestrian earlier. Perhaps the pedestrian jumped out into the road. Perhaps he emerged from behind a parked car.

      If I were in your husband’s shoes and I truly, at the bottom of my heart, felt that I had been driving safely and responsibly and could not have avoided hitting the other car, then I might appeal the surcharge on principle, but I wouldn’t go into the appeal expecting to be successful.

  8. wave

    I was waiting at a stop sign at an intersection to make a left turn on main road. the traffic on the main road was stopped, the driver on the main road waved on to me to indicate I can go. I waited for a minute or so for the traffic on the other side of the main road to clear. As I was making the left turn the driver who waved me indicating I could go, also started driving and bumped on my car. I received a letter from my insurance company indicating I am more that 50% at fault. Should I appeal?

    1. jik Post author

      This is a very complicated scenario, and for that reason alone it might make sense to appeal it, although I can’t predict how likely it is that your appeal would be successful.

      The thing is, the person who waved you on shouldn’t have done that. Yes, people think it’s the “nice” thing to do, but it just introduces uncertainty and confusion into the right-of-way rules. The rule is clear: someone going straight or turning right has the right of way over someone turning left. He should have gone himself rather than waving you on.

      But wave you on he did. If you had make your left turn immediately after he waved you on, and he pulled out into the intersection and hit you, then I think you could make a clear and convincing case that he yielded the right of way to you by waving you on, and that therefore he was at fault in the accident.

      However, you didn’t make the left turn immediately. You waited a minute before doing so. Did his yielding of the right of way “expire” because of that delay? Well, that’s exactly why I say that this is a complicated scenario, and it’s exactly why I say that waving people on like he did is a bad idea in general. There are no laws or regulations about this. There’s nothing in the Massachusetts Driver’s Manual about whether your right of way “expires” if you wait to long to take advantage someone waving you on. That’s because although someone waving you on may mean something in terms of real-world, day-to-day driving, it does not mean anything at all in terms of the law.

      However, the appeals board isn’t entirely limited by laws and regulations. They can use their best judgment to evaluate whether you were more than 50% at fault, and in the scenario you describe, they might just decide to cut you a break.

  9. Sw123

    If I rear ended someone, extremely minor fender bender with mild damage to his rear bumper, old vehicle, and no damage to my vehicle, icy road conditions, any chance I can win an appeal? The guy I hit is trying to cash in and posted on his public Facebook page immediately after the accident that he was hoping his car is totaled so he can get a new one. A police report was filed. Also, can I offer to my insurance company that I would pay the damages out of pocket to avoid a possible surcharge?

    1. jik Post author

      If you have reason to believe that the other driver is committing insurance fraud, i.e., gaming the system to claim more damage to his vehicle than actually occurred (Did you take photos said tof the accident at the scene? Always a good idea!), then you should notify your insurance company and the Division of Insurance ( immediately.

      I hope you took screenshots of his Facebook posting! If not, and it’s still there, go do it now!

      If you think that the other driver stopped short on purpose to cause you to rear-end him, i.e., his scheme to commit insurance fraud began before the accident occurred rather than him just deciding to take advantage of the situation afterward, then that may be grounds for winning an appeal, since it would imply that the other driver caused the accident on purpose.

      Otherwise, you’re unlikely to win an appeal, because you really are at fault and it’s extremely difficult to overcome the presumption of fault for rear-end collisions. Having said that, the amount of your surcharge depends on the amount of damage caused to the other vehicle, so you may be able to reduce the impact on your insurance rate by dealing with the fraud as described above — if indeed the other driver is inflating the damage.

  10. R


    I rear-ended another vehicle and want to send an appeal. Any chance I can win the appeal? I don’t know how much damage the other car got, but it was by all account a minor fender bender.

    Thank you

    1. jik Post author

      An appeal of a rear-end collision is unlikely to be successful. There’s a chance if you can argue — with evidence — that the collision was caused by unavoidable road conditions that you could not have anticipated, e.g., black ice or an oil spill or something. But the presumption of fault for someone who rear-ends another vehicle is extremely difficult to overcome.

  11. jamie

    I got into a minor accident on 7/28/17 in Cambridge. I was parked on the street and planning to leave my spot. I looked to make sure I was safe to merge into the lane. When I did so, pretty much 60% of my car was in the lane. However, as I was fully merging the remainder of my car into the lane, a car behind me was trying to cut me by driving into the other lane of opposing traffic. I braked but the other driver didn’t cut me enough and hit my front bumper. My front bumper on the driver’s side had a huge dent and her car had a minor scratch on the passenger side. I have a Toyota Prius and she has a red Kia Soul. The appraisal for my damages are $956 and her damage is $1258. The appraiser said the Kia Soul suffered damages on the fender, tires, rims, and wheels. I took a picture of the car’s passenger side. The wheels, tires, and rims are clearly from past self-damage. She’s definitely driven into the curb an extensive amount. I do see a dent above her fender but that cannot be from the collision. The Soul is much higher than the Prius. How is that logically possible right?
    My insurance (MAPFRE) said if her damages exceed $1000, I will face a surcharge of $500. I will be appealing this surcharge. My question is should I appeal that it wasn’t my fault or that her damages shouldn’t exceed $1000 or both reasons? I would like to appeal whatever gives me a higher chance of winning. Also, will my insurance agent be there? Your thoughts are much appreciated!

    1. jik Post author

      If I were you I would appeal on both of those grounds. There’s nothing that says you’re only allowed to appeal for one reason at a time. If you think there are two separate reasons why you shouldn’t be surcharged — and your argument for that sounds pretty reasonable to me — then you should present both of those reasons at the hearing.

      Someone from your insurance company may or may not decide to appear at the hearing and argue against your appeal. My understanding is that they try to schedule hearings that involve the same insurance company in blocks, so that a representative of the insurance company can show up and handle a bunch of hearings in a row.

      You asked whether you’re insurance “agent” would be there. If by that you meant that you actually bought your insurance through an insurance agency rather than directly from the insurance company, and you were asking whether someone from that agency — not the insurance company — would be there, then the answer is no, insurance agencies are not involved in these hearings.

      1. jamie

        I’ve told this to my insurance who said I’m automatically at fault. Furthermore, when I mentioned the damages the insurance issued a re-evaluation of both cars through the appraiser who said the damages seem to line up. There’s no way to prove that the other driver’s damages were from the past.
        How likely do you find the MRB to side with me over the insurance and vacate my surcharge?

        1. jik Post author

          I’ve told this to my insurance who said I’m automatically at fault.

          What your insurance company is saying is that under Massachusetts law, there are certain kinds of accidents for which there is an automatic presumption of fault on one of the drivers. For example: hitting a stationary object; a rear-end collision (the driver in back is presumed at fault); etc. I’ve linked to the relevant statute in other comments here, though I don’t have time to dig it up right now.

          When one of these types of accidents occurs, the insurance company is, indeed, required by law to issue a surcharge notice finding one of the drivers at fault as specified by the law.

          The law also acknowledges that the presumption of fault in these types of accident is not always correct, which is why the driver who is found at fault is given the option of appealing the finding as you are considering doing.

          In short, the insurance company is correct that they had to find you at fault; you may very well be correct that you were not, in fact, at fault; and the way to reconcile those two facts is to appeal the surcharge as described in the surcharge notice and try to get it overturned.

          There’s no way to prove that the other driver’s damages were from the past.

          You don’t have to “prove” anything. You just have to plant some doubt in the minds of the people who hear your appeal. This isn’t a court of law, so neither reasonable doubt nor even preponderance of evidence is the standard that applies. If you’re polite and civil and present your case calmly, given the facts you outlined, I think there’s a good chance they’ll overturn the surcharge. Not a sure thing, to be sure, but certainly worth the attempt.

          It seems to me that you do have a decent case to make. You can bring the photos you took of the damage to the two vehicles to the hearing and show that there is damage to the Soul in the photos that doesn’t have any corresponding damage to your vehicle. You can show how far above the ground the samage to your vehicle was and how far off the ground all the damage to the Soul was, and show that the appraiser’s claim that they match up doesn’t hold water.

          1. jamie

            Also, I withdrew my claim on my end because I fixed the front bumper on my own but my insurance still mailed me a payout check? Is this too good to be true? I’d like to deposit it but afraid of the consequences..

            1. jik Post author

              Clearly, if the insurance company sent you a check, they don’t think you withdrew the claim. You will need to call them to straighten things out. You may be not allowed to withdraw the claim if you are determined to be at fault and your insurance company ends up paying for the damage to the other vehicle.

              Some insurance companies will sometimes pay the owner of a vehicle the amount of the repair estimate (minus the deductible), rather than requiring the payout to go directly to the shop that performed the repair. That appears to be what happened here. If you are paid by the insurance company in this way, then there’s nothing wrong or illegal about keeping the money even if you did the repairs yourself or they ended up costing less than the estimate.

  12. Jerry

    My wife was pulling into the parking lot of a local restaurant and hit a large boulder on the edge of the parking lot causing $6000+ in damage (both passenger doors and running board needed replacement). Any chance she could win an appeal? Thanks.

    1. jik Post author

      Very little chance. Your wife hit a stationary object. She’s at fault pretty much by definition.


Leave a Reply

Your email address will not be published.