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

  1. J

    Thanks for answering my question about my waxing. What I’m having trouble proving is the following. When I called my insurance carrier they told me that I was eligible for accident forgiveness. Unfortunately I decided to go ahead and have my car repaired for $4,000 only to find out after the fact that they were mistaken and I actually didn’t qualify for accident forgiveness. My surcharge was Substantial at nearly $1,000 increase per year.

    How do I go about fighting this and proving that on the initial phone conversation the agent told me I had accident forgiveness on my account?

    Reply
    1. jik Post author

      All I can suggest would be for you to contact the insurance company, tell them you were provided over the phone with incorrect information which was extremely financially damaging to you, demand that they review the recording of that telephone conversation to confirm that you are telling the truth, and demand that they allow you to listen the recording if they dispute your claim after having reviewed it themselves.

      Having said all that, the worst-case scenario is that the insurance company will tell you that the only binding contract between them and you is your written insurance policy, and that it is your responsibility to understand the terms of that policy. If you were told something over the phone that contradicts the terms of your written policy, then the insurance company may very well tell you, “Too bad, not our fault.”

      Reply
  2. J

    A point of clarification. If I want to sue my insurance carrier in court won’t the small claims court simply say I should have gone to the surcharge appeal body? I feel that the amount that they’re saying they paid out to repair the other car was egregious. I have pictures and there’s no way that that person had $5,000 worth of damage. My car was ripped almost in half and my bill was $4,000 and he had a quarter-sized hole in his bumper and they called it $5,000 worth of damage. Must I go through the surcharge appeal process first? And then if unsuccessful sue the insurance company in small claims court? I have an auto body that said they agreed with me that it shouldn’t have cost that much for the other car

    Reply
    1. jik Post author

      A few thoughts…

      * Whether you were at fault in the accident and whether the amount paid out for the damage to the other vehicle are entirely orthogonal issues, i.e., they have nothing to do with each other. You can appeal the surcharge if you don’t think you were more than 50% at fault, but that has nothing to do with whether you take action on your belief that the other driver’s damages were exaggerated.

      * I find it hard to understand how it could be that your car “was ripped almost in half” in an accident while at the same time the other car had only “a quarter-sized hole in his bumper.” If your car was so severely damaged, then how was the other car almost entirely unscathed?

      * If your car had $4,000 worth of damage, then the accident is well over the $2,000 threshold for a “major at-fault accident” regardless of how much damage the other driver’s vehicle had. So even if you manage to prove that the other driver’s claim was bogus and get it reduced, you’re still stuck with the surcharge for a major accident unless you appeal the surcharge and get the finding of fault overturned.

      * The damage caused to a vehicle in an accident is often invisible from the outside. Just because you saw only minor bumper damage doesn’t mean there was only minor damage to the vehicle.

      * If, indeed, someone — it could have been the other driver, the other driver’s body shop, the other driver’s insurance company, or your insurance company — knowingly, intentionally exaggerated the amount of his claim, that would be insurance fraud. Although it’s certainly possible, it seems highly unlikely to me that your insurance company would have committed the fraud, so I don’t see what you’d gain by suing them. I think in that case you’d be better off reporting the suspected fraud to the Massachusetts Division of Insurance (http://www.mass.gov/ocabr/government/oca-agencies/doi-lp/). If I were you, I would contact them and ask what their recommendation would be.

      Reply
  3. J

    Do you happen to know if people commonly sue if they are in a two car accident and where the rear car? Meaning ice truck somebody in front of me but he clearly was at fault not by the definitions of the insurance company but he was breaking the law when he stopped where he stopped based on posted. Sue in small claims court?

    Reply
    1. jik Post author

      In my opinion, it is unlikely that you would prevail in any sort of lawsuit if you were the rear car in a two-car accident.

      I am not a lawyer, and this advice is worth exactly what you paid for it. If this is really important to you, then consult a real lawyer.

      Reply
  4. Katie

    Hi Jonathan –
    Thank you so much for the helpful information! I was in an accident in Feb of 2017 and just received the SDIP saying I am more than 50% at fault & I’m wondering whether to appeal. I was in the right had lane of an exit ramp – this particular ramp has two lanes that stop at a traffic light and then all drivers turn left in their own lanes. I was completely stopped & I decided to merge into the left lane before the light turned green. I checked my rear view & side mirrors and saw nothing so I merged left. Another car was in the lane and I side swiped the side of their back door (it was a small 4 door SUV). We immediately drove to the business across the street from the set of lights and exchanged info. The police did not come. The damage to my right from bumper is very minimal – I will not even have to get it repaired – and the other driver’s car had a scrape about 12 inches long on his rear door. It ended up that the repair cost $2200 for his car because the repair shop said he needed a whole new door. I have driven this road almost every day for the past 15 years and since the accident I have tried to recreate the situation in my mind as I’m pulling off the exit ramp. I check my mirrors to see if I should have seen this driver and I absolutely should have been able to see him as the situation occurred. I’m not sure if he was speeding, etc. but I can not imagine how I did not see him at the time this happened. I know it is most likely a long shot but wanted your opinion. Thank you!

    Reply
    1. jik Post author

      It doesn’t seem likely to me that you would win an appeal in this case.

      Reply
  5. Charles Davis

    Hi Jonathan,
    Very informative page/posting. Thank you for your time in advance.
    Back on Feb 17, 2017 I was involved in a 3 car collision on a 3 lane highway (Rte 91 – western MA) – I was about dusk time – road conditions were not snowy/icy/wet – may have had sand on it? I had just moved over to the passing lane and we were moving the speed limit when vehicle 2 ( a large Chevy Z71) slammed on his brakes hard and stopped fast and immediately. I did not see any brake lights or warnings that he was stepping on his brakes. I immediately slammed hard on my brakes and slid into the back of Vehicle 2 and came to a stop! My airbag deployed.

    The operator of V2 jumped out of the vehicle to make sure V3 was ok – he had hit V3, and then came back to see if I was ok, he was a Firefighter and was already on the phone to the state police. He noticed my airbag was deployed and asked it I hurt anywhere in the upper body or face. I was not aware of any injuries at that time. He then told me that a 4th vehicle slammed on the brakes, causing V3 to slam on his brakes initiating the chain reaction. V4 did not get hit and drove away. I do not have any information on V4.

    I did not get a surcharge notice from the insurance company (Mapfre/Commerce). I will inquire about that due to your suggestion from above postings.

    Should I appeal? I do realize that I was the last one in the line of 3 – but I had no warning what so ever – being the car in front of me was large and hard to see in front of – usually I watch for break lights as I am driving – there was nothing to indicate that we would be slamming on our breaks in the passing lane.

    I am paying a surcharge that is the same as my regular monthly insurance payment!

    Thank you again for your time

    Reply
    1. jik Post author

      When you say, “I am paying a surcharge…” do you mean that your rates went up as a result of this accident even though you never received a surcharge notice from your insurance company, or that you are paying a higher rate because of a surcharge resulting from a prior accident?

      If you’re saying that your rates went up as as result of this accident even though you never received a surcharge notice, then I think that four months ago is probably recently enough that you can still appeal the surcharge after talking to your insurance company, explaining to them that you never got a surcharge notice, and getting them to send you one.

      As for whether you should appeal, did the police respond to the accident? If so, and there is a police report on file which explains what happened in anything like the language you used above, then if I were in your shoes I would definitely appeal.

      If the police didn’t respond and/or you can’t get a copy of the police report, then it’s more iffy. The ipso facto facts of the case are that you rear-ended another vehicle, so there’s a strong presumption that you were at fault for not following the vehicle in front of you at a safe distance. If you go to an appeal hearing (or submit a written appeal) and tell the story you told here, you may succeed in overturning the surcharge, but on the other hand, you may not. Given that it sounds like your rate increase is much higher than the cost of the appeal, it’s probably worth trying.

      Reply
      1. Charles Davis

        Thanks for the quick response.

        My policy renewed in May and I did not receive a surcharge notice from the Insurance company – I did know it was coming because I can log into my account and noticed that they were charging me an additional $850 per year on top of the $640 annual amount. I spoke to my insurance agent and he said he had no control over it and that since I was the last to hit that it was to be expected!

        The State Police arrived on the scene, asked if anyone needed medical attention, gathered our driver licenses and registrations then directed that we move from the fast lane over to the brake down lane. V2 and V3 moved over, my vehicle limped slowly and was barely able to move over. Upon moving over our information was returned and I was informed that they had requested a flatbed tow truck for my vehicle since it was not drivable, the front end was crumpled, windshield smashed and the airbag having been deployed. The other 2 were okay to drive off, which they were informed that they could do. My vehicle was then loaded up and towed away. My Rav4 was then inspected and determined totaled. I got the payout and I luckily had GAP insurance for the difference owed to the bank.

        I left a message to my insurance agent today asking about the Surcharge Notice. No word back from him, yet. I will also request an accident report from the State Police to see what they had to say.

        So I do not know how much at fault they have me classified.

        Reply
        1. Charles Davis

          Oh, and my record as a driver is excellent. I have not had an accident since 2001, which was an icy road condition accident.
          I have been driving since 1988!
          I know the whole appeal is iffy, but worth a shot. It will save me a lot more money than filing and dealing with it if it gets approved.

          Reply
  6. Jacob

    Hi, I just had accident yesterday. I was park my car in fond of barber shop before(1250 Commonwealth Ave
    Allston, MA 02134 ). After finished m hair cut i go out and turn on my car. It was no car going on the streets (one way)
    I stayed in the car about 2-3 minutes and driver back. I was check on the right side and have no car or anybody to come But it had 1 car parked illegal on my back and I could not see her. So can i ask who is fault at this case?

    Reply
    1. jik Post author

      If you hit a parked car you are at fault. It doesn’t matter whether the car was parked illegally. You are responsible for being aware of your surroundings, and there’s no way you can argue it’s anyone’s fault but yours when the car you hit wasn’t moving.

      Reply
  7. Neil

    Hi Jik and everyone ,

    On 8th Jan , 2017 , I have encountered an accident . I was coming from New Jersey to Boston and the Accident happened at Old Sybrook , Connecticut . There was huge snow on 7th of Jan , 2017 . My car got skidded in snow or black ice suddenly and I hit the side of the road (Iron Shoulder which usually present there). The front side of the car has been damaged. I have called Police for help and he helped me to get towed . But Police gave me one ticket and I dont know why . In the ticket , it is mentioned that “Failure to Maintain Proper Lane” . I told police gently that this is happened because of Snow . But still he gave me . I pleaded Not Guilty for that ticket and hired one Attorney in Connecticut . My Court date is on 15th of March , 2017 . Suddenly I got one surcharge notice from geico yesterday . It is simply unknown to me because i thought till the time , the decision of my case is done , I will not get any insurance premium increase. The estimated cost for repairing the dagame is 5400$. Insurance company is saying that I am more than 50% at fault in this accident and they categorize this as single vehicle collision . They told me that if I think this is not happened because of my fault then I can appeal to Division of Insurance . So I filled the appeal form(Back side of the surchange Notice) and sent to Divison of Insurance . This is happened because of poor weather condition and snow . This is why I appealed . Did i make correct move or should not have I sent that appeal ? When the hearing will be happened ? What is the next step ? I may not be available in Boston after couple of months and by that time if hearing date is not coming then what will happen ? Can I send any written statement for hearing ? I guess that is another option . So please suggest me what needs to be done ? Also suggest me what docs I should be sending after getting the hearing notice ? What should I write and what I should not ? Please help and suggest ?

    Reply
    1. jik Post author

      Your insurance surcharge in Massachusetts is entirely independent of the ticket you received. Single-vehicle collisions reported to your insurance company automatically result in a surcharge, because by law there is a presumption that the driver in any single-car collision was at fault.

      However, as per http://www.carinsurance.com/which-states-share-traffic-ticket-reciprocity.aspx, if you are unsuccessful at getting your ticket in Connecticut overturned, you may face a Massachusetts surcharge because you received that ticket, independent of the surcharge you received because of the presumption of fault described in the previous paragraph.

      If you have already engaged an attorney to try to get your ticket in Connecticut overturned, and that attorney is planning on arguing that the accident was caused by unforeseeable weather conditions and you were not driving negligently, then whatever case your attorney builds for your court case should be just as usable in your surcharge appeal.

      If, on the other hand, your attorney is planning on attempting to get the ticket overturned on some sort of technicality, without arguing that you were not driving negligently, then his case isn’t going to be particularly useful in your surcharge appeal, and you are going to have to build your own case to appeal your surcharge. You could, for example, bring printouts of news articles talking about black ice on the roads in Connecticut on the day of your accident.

      Note that this isn’t a “slam dunk.” Even if you make a convincing argument that there was black ice on the roads, the surcharge appeal board may still conclude that you should have known there would be and driven more carefully, and that you were therefore still more than 50% at fault.

      There’s no way of knowing when your hearing will be until you receive the response from the appeal board. If you are unable to appear in person you are allowed to send a written statement.

      Reply
      1. Neil

        Jik ,

        Thanks for your prompt response . I really appreciate of your help . If my attorney removes the point for Connecticut ticket then can I tell that in Surcharge written statement ? Should I write the ticket details and the results (If I win obviously) in Surcharge written statement ? Also if my attorney in Connecticut is unable to defend then CT will inform that to MA . Then that will cause the insurance increase along with this Surcharge increase correct ?

        Also in written statement , Should I write by Pen and sign and send or should i type in word doc with all the details and then sign and send ? Is there any specific format which I should be following ? Also I can send all the docs as you mentioned above . Is this correct ? Please suggest .

        After sending written statement , within how many days the result will come ? It can be either Vacate or Upheld . Correct ? Also do you know how much insurance will increase because of this ? Nothing is writen in the SUrcharge notice .

        Reply
        1. jik Post author

          If my attorney removes the point for Connecticut ticket then can I tell that in Surcharge written statement ?

          Yes. That will help.

          Should I write the ticket details and the results (If I win obviously) in Surcharge written statement ?

          Maybe you should be asking your attorney questions like this?

          Also if my attorney in Connecticut is unable to defend then CT will inform that to MA . Then that will cause the insurance increase along with this Surcharge increase correct ?

          Possibly. I can’t really say for certain. I don’t know what the rule is when there is both a presumption of fault and a citation for the same accident, i.e., I don’t know whether they both get rolled up into one surcharge, or you end up with two separate surcharges. Perhaps your attorney can tell you.

          Also in written statement , Should I write by Pen and sign and send or should i type in word doc with all the details and then sign and send ? etc.

          Typing is always better than handwriting for business or legal communication. This is common sense; this is not a question you should need to ask. Some of your questions here are really a bit over the top.

          After sending written statement , within how many days the result will come ? It can be either Vacate or Upheld . Correct ? Also do you know how much insurance will increase because of this ? Nothing is writen in the SUrcharge notice .

          Please take advantage of other resources available to you before wasting my time asking questions that are answered elsewhere.

          Reply
          1. Neil

            Thanks Joi for your guidance and prompt answers . I will keep this forum posted regarding my appeal results . Thanks

            Reply
            1. Anonymous

              Thanks jik for your help . I got my Surcharge appeal results and it is Vacated . My premium got down again . yipeeeee 🙂 Thanks for your help . I did not appear personally and I sent the written notice instead . I called several times to the customer care of Divison of Insurance and they told me that it will take 7-8 months to get hearing date but I got it within 3 months and I got the results within 7 days of my hearing . This is what I wrote in my statement . Hope it will help others ….

              Commonwealth of Massachusetts
              Division of Insurance / Board of Appeal
              1000 Washington Street, 8th Suite 810
              Boston, MA 02118
              Attn: Statement Section
              April 16, 2017

              To whom it may concern,

              Thank you for the opportunity to present my case for your consideration.
              This statement is related with the Surcharge Appeal for the accident happened on Connecticut. There was huge snow on previous day which was Saturday . I was coming from New Jersey to Quincy , on the day of accident. The snow report in Connecticut is attached with this statement .

              I was driving under the allowable speed but suddenly my car got skid due to black ice on the road and as a result my car hit on the shoulder . This is not something which happened because of my fault as weather conditions played a factor here. Though I was driving cautiously and at a reasonable speed with in proper lane, still my car got skid because of icy road and black ice .

              I have attached my Car’s picture after the accident . You can see that the shoulder of the road is full of ice and also the lane was icy and slippery which resulted my car to skid . I don’t think I am more than 50% responsible for this accident because this would not have happened if there was no snow on that day

              Also there were several accidents happened during that period due to snow storm . For your reference , I have attached the printout of the news report as well .

              I know that the insurance company categorized this as Single vehicle Collision but this collision was due to black snow .

              Given all these details, I think I am not more than 50% responsible for this accident. Kindly consider my appeal.
              Thank you again for taking the time to consider my appeal.

  8. Nat

    Jik,
    Thank you for the quick response and the vote of confidence.
    I will keep the ins. fraud and other speculation out of it.
    Also, thanks for clearing up the question of who will be there.

    Much appreciated, Nat

    Reply
  9. Nat

    Hi, Great advice on your blog. Thanks for having it.
    Last January my son was driving his 1998 truck on a rural road a half mile from our house, when his driver’s side mirror hit the mirror of another truck (2006). He immediately pulled over and was confronted by an irate driver and 2 angry passengers who accused him of hitting their truck. They smelled of Alcohol. My son called me (I was 1 minute away) and I arrived on scene and called the Police. The Officer didn’t think the driver was impaired, and understandably couldn’t cite or comment on who was at fault. The driver and his friends had just come from a game dinner at the hunting club down the road. Dinner was before 5pm & it was now 8:45. The Officer was also at the dinner before the start of his 5pm shift and remembered seeing them there. I not implying any bias on the officer’s part, I am friends with him and know his integrity. ( sorry, small town, this isn’t Boston). He looked at the damage, both trucks had broken driver’s mirrors and a tiny scratch on the doors, He said the damage was well under $1000 so he wasn’t doing an accident report. He suggested we fill out a crash report and send it to our insurance agent even if we aren’t filling a claim. I took a photo of each mirror. I send the report the next day, my son stated he was in his lane of travel. We didn’t file a claim and replaced the mirror for $75.

    Six months later (July) we received a notice of surcharge, I sent in an appeal.

    Last week (Nov) I received an appeal date ( Dec ) . I called the my insurance agent to find the details of the surcharge . ( maybe something I should’ve done last July) . The other driver had claimed my son crossed the centerline and damaged the entire side of his truck he received a settlement of $4300 .

    The insurance agent tried to get the other company’s appraisal and damage photos but was told she could not due to a privacy act.
    I spoke with the responding Police officer and he printed out the log for the accident. It simply states the names, location and the wording ‘No Report Taken’ . He again said No Report Taken is only because there was clearly less than $1000. Both the ins. agent and the officer commented about this being insurance fraud.
    The agent thought I should appeal, but said it would be difficult to win, because of the ‘witnesses in the other truck’.
    I would like to go to the appeal hearing to represent my son ( he is in college). The photos I took only show the mirrors, I didn’t take the entire side of his truck, because there wasn’t any damage. I will try to speak to the officer again to confirm alcohol was served at the dinner.
    Do the people at the hearing care only about the fault/ surcharge part ? Does the possible insurance fraud come up ?
    Is the other driver requested to be there?
    Any advice at all on how I should state my son’s case , would be greatly appreciated.

    Thanks, Nat

    Reply
    1. jik Post author

      You should appeal.

      When presenting your appeal, you should not speculate about things such as insurance fraud. They are not relevant to your appeal.

      What is relevant is that you have two civilian witnesses, photos, testimony from a police officer that there was less than $1,000 in damage, a printout of a police log which indicates that no accident report was taken which corroborates your claim that there was less than $1,000 in damage, and a timely report which you filed with your insurance company.

      Note that the dispute over the surcharge isn’t between you and the other driver, it’s between you and the insurance company. The other driver will not be at the hearing. Representatives of the insurance company will be at the hearing.

      I am fairly certain the surcharge will be overturned. Whether the other driver’s insurance company decides to investigate potential insurance fraud is not your problem and not relevant to whether the surcharge is overturned.

      Reply
    2. Nat

      Just a follow up.
      I went to the hearing today and the board ruled in my favor.

      Nat

      Reply
  10. Jesse

    Hi I was recently involved in an accident in July, both me and the other party had the same insurance coverage, while I had limited collision, the other party had full coverage so I knew pretty quickly the insurance company if they could would find a way to find me at fault and only have to pay out one claim instead of both. However I was sure I was not at fault for the accident and filed for an appeal. Sure enough the insurance board agreed with me and vacated the decision of my insurance company finding me not at fault for the accident. Now I was incorrectly found at fault by my insurance company and my policy was not paid and my truck was not fixed, now that the insurance board has over ruled the original findings I want my truck to be fixed… Or else what the hell is the point of paying for insurance anyway… I contacted my insurance company and they still feel they do not have to pay for my claim, what options do I have? Getting a lawyer and bringing it to court? Filing a complain in a court of law? Any help or suggestions would be very helpful thank you.

    Reply
    1. jik Post author

      Hi Jesse,

      There are several issues to unpack here.

      The fact that the finding of fault was overturned on appeal doesn’t necessarily imply that the insurance company was incorrect to issue it, nor does it prove that they did so to avoid paying for your repairs. Massachusetts law spells out many situations in which there is a presumption of fault, i.e., situations in which insurance companies are legally required to issue a finding of fault and a surcharge, regardless of whether the specific circumstances indicate otherwise. The appeals process is provided to deal with those circumstances.

      Even if this wasn’t an accident where a finding of fault was required by law, the adjuster who handled your accident may have legitimately felt you were more than 50% at fault. It is not necessary to attribute malice to your insurance carrier to explain the facts you’ve provided.

      Regarding the question of who should pay for the repairs to your vehicle, the law works like this:

      • Was the other driver found at fault in the accident? If so, then his insurance carrier pays fully for the repairs to your vehicle.
      • If the other driver was not found at fault, then do you have full collision coverage? If so, then your insurance carrier pays fully (less your deductible) for the repairs to your vehicle.

      The important thing to understand here is that findings of fault in accidents do not need to add up to 100%. That is, just because the finding at fault against you was overturned does not mean that the other driver was at fault. If neither driver was found to be more than 50% at fault — which is an entirely plausible scenario, and it sounds like what happened here — then neither vehicle’s insurance carrier is required to pay for the repairs to your vehicle.

      The fact that you and the other driver both had the same insurance carrier does complicate things. Sure, it’s possible that the carrier played fast and loose with the rules and didn’t find the other driver at fault to avoid paying for the repairs to your vehicle. On the other hand, it’s also possible that the other driver really wasn’t more than 50% at fault, and everything the insurance carrier has done has been legal and correct.

      So, what are your options at this point? If you believe that the other driver was at fault in the accident and either he or the insurance carrier should pay to repair your vehicle (it’s an either/or because the amount of insurance coverage he has may not be enough to fully cover the cost of your repairs), and you’ve already tried and failed to convince the carrier of that, then the next thing you should do is to notify the carrier that you intend to pursue legal action if they refuse to make you a settlement you’re willing to accept. Often, the threat of legal action will be enough to convince them to settle with you, if not for the full amount of your damages, than at least for enough to satisfy you.

      If that fails, and you still want to proceed, then yes, you’re going to have to hire at attorney, and the attorney is going to get a cut of whatever settlement you get from the insurance carrier. The attorney will first try to negotiate a settlement rather than going to court. If that fails, then yes, there’s going to be a lawsuit.

      Of course, you can be bluffing when you tell the insurance carrier you’re going to hire an attorney, and even if you hire an attorney, he can be bluffing when he tells the carrier that he’s going to take them to court. You don’t actually have to follow through if you decide it’s worth no longer worth the effort. But of course, once you hire an attorney, you’re going to owe him money. He may agree to take the case on contingency, but if so, then his agreement with you will probably require you to either go to court even if you decide it it’s no longer worth the effort, or to pay him for his time (rather than contingency) otherwise, because otherwise he won’t get paid.

      Another option is to sue the insurance carrier in small-claims court, if the damages you want them to reimburse are less than the small-claims limit of $7,000. If the insurance carrier doesn’t show up for the court hearing, you’ll win by default. If they do show up, you’re unlikely to win unless you can make an extremely strong, convincing case that the other driver was at fault in the accident.

      The last three paragraphs only address negotiations and legal action against the insurance carrier. Remember that if the other driver’s coverage limit is less than the cost of your repairs, the carrier is only required to pay up to that limit. If you want more than that, then you’ll also have to pursue legal action against the other driver directly, which will obviously be a huge hassle. For example, I don’t think you can pursue legal action against two defendants at the same time in small-claims court, so you’d have to file two different suits. Furthermore, while an insurance carrier will usually pay a settlement without fuss if they lose in court, it can often be quite difficult to collect a judgment from an individual.

      Remember: I am not a lawyer, my advice is worth what you paid for it, and follow it at your own risk.

      Reply
  11. Ashley

    I was in a single auto accident. I was travelling on a single lane road in the winter. It was snowing, raining, and the roads were very icy. I ended up slipping and hitting the guard rail and once I hit the guard rail because it was so slippery out it cause my car to turn 180 degrees so I was facing the other direction. I am appealing the surcharge because they said It was my fault due to only one car collision. Do I have a case I feel that it was obviously due to the weather and I feel I was driving safe. The roads were in rough safe and not even salted.

    Reply
    1. jik Post author

      In my opinion — and as I’ve stressed here many times, this is just my opinion, and I’m not a lawyer, and you should assume my advice is worth exactly what you paid for it — you are unlikely to succeed if you appeal the surcharge.

      That the roads were “in rough shape and not even salted” does not absolve you of responsibility to drive safely for the current road conditions. If the roads are not safe to drive on at all, then you shouldn’t be driving. One of your responsibilities as a driver is to be aware of the weather conditions, understand how they are likely to impact road conditions, and make a good decision on whether it is safe to drive in those conditions.

      To succeed in an appeal, I believe you would have to successfully make one of these two arguments:

      1) You could not have reasonably anticipated that the roads would be very icy and slippery, i.e., dangerous to drive on. However, in your comment above, you basically admit that whether conditions were very poor and the roads were not salted, so it doesn’t seem like you can make this argument convincingly.

      2) You were driving for reasons that were sufficiently, justifiably urgent that it was reasonable for you to take the risk of doing so despite the weather and road conditions. I don’t know why you were driving, so I can’t evaluate whether this is an argument you could legitimately make.

      I’ve never appealed a surcharge for an accident caused by poor weather conditions. I could be completely off-base: it’s entirely possible that the appeals board is not as strict as I am describing about such accidents. However, this is my understanding of the law, and it is also my understanding that it is very difficult to overcome the presumption of fault for single-car accidents.

      If you do decide to appeal, please let us know how it goes. The more information we have here about various types of appeals and how they go, the better decisions we can all make about whether to appeal in the future.

      Reply
  12. Laura

    Hi, so my car was parked in my driveway ( in mass). I’m being told if I claim against my insurance I would have to pay the deductible (which I’m ok with) but that I’ll also get a 3pt surcharge since the damage was over 1000 🙁 is this something I can appeal? I don’t feel like this is fair 🙁

    Reply
    1. jik Post author

      You haven’t said anything about the cause of the damage that occurred while your car was parked in your driveway, so I have no way to evaluate whether what you’ve been told is “fair.”

      What are the details of the accident? Was it your fault?

      Reply
  13. lou

    accident involving my 20 year old son. clean driving record. December, weather clear. late afternoon. driving the posted speed limit. car #1 slowed and stopper to take a left turn across 1 lane of traffic into a gas station. car number 2 tried to go around the car on the right but apparently didnt have enough room and stopped abruptly. car #3(my son) was also planning to turn into the gas station . car # 3 was slowing,anticipating that car #2 would complete the (illegal) passing of car #1. when it didn’t, car #3 hit the rear of #2. minor pain damage……… is my son MORE than 50% at fault?

    Reply
    1. jik Post author

      As I wrote below:

      I think it is very difficult to overcome the presumption that you were at fault for a rear-ending accident.

      The fact that you ran into the vehicle in front of you is pretty much considered proof by definition that you were not “following at safe distance and at a safe speed.” If you had been following at a safe distance and speed and paying attention, then by definition you would have been able to stop in time.

      I would not bother trying to appeal if I were in your shoes.

      Reply
        1. lou

          because the car in front (#2) planned to do one thng, stopped short and did another

          Reply
          1. jik Post author

            You’re of course welcome to try, but it really doesn’t matter what the car in front of your son did.

            The definition of safe following distance is that you are leaving enough distance between yourself and the car in front of you — and paying close enough attention — to have time to react if it does something unexpected.

            It is possible that the people who hear your son’s appeal will be sympathetic and overturn the finding of fault, but I really doubt it.

            Reply
      1. John

        Jonanthan, Thank you for the thread. I have just (within the last month) successfully appealed my own Massachusetts surcharge determination. The thoughts that you and other shared helped in framing my appeal. However, I do have a question in regards to the obligation of my “former” (yes former) Massachusetts insurance carrrier, and their need to pay back the inaccurate 34% increase in premium I had to pay over the last year. Do you or anyone know if they are obligated to pay back the entire amount they essentially billed me in error. Do you recall what your experience was? I also feel I should be reimbursed by them the $50 I had to send to the Commonwealth to intiate the appeal? Any thoughts on that also?

        Reply
        1. jik Post author

          Just because your surcharge was overturned on appeal doesn’t mean the insurance company did anything wrong. There are many circumstances in which the insurance company is required by law to issue a surcharge as a result of an accident, even if the surcharge might be overturned on appeal. While it’s true that sometimes insurance companies issue surcharges that should not have been issued at all, that’s the exception rather than the rule.

          Once the surcharge was issued, the insurance company was allowed to start charging you a higher premium immediately, so the increased premium you experienced was not “inaccurate” or “in error.” However, now that the surcharge has been overturned, yes, the insurance company is required to recalculate your premium retroactively as if you had not been surcharged you, and refund you any excess premium.

          No, you are not entitled to a refund of the appeal fee.

          Reply
          1. John

            Thanks for the clarification Jonathan. I have received back the entirety of the surcharge that Amica assessed me. However, I am still waiting back from them on the return of the appeal fee, but figured it was a long shot.

            Btw, if readers of this thread’s appeal has anything to do with ‘line of sight” obstructions and “zones of risk” caused by homeowners and / or municipalities negligence improperly maintaining the foliage about the roadways there is alot of relevant MA case law and federal guidelines that may help you.

            Reply
  14. joe davidson

    my son and some friends were camping out in the woods…he called for me to pick him up.around 11:30 pm
    drove down this dirt road no more than 10-15 miles per hour right front tire hit a large rock lifted the truck in the air
    spun the steering wheel out of my hands all the way to the left..next I knew was rolling over ins. company said vechile was a total lost…now they want to surcharge me for 50% my fault..should I appeal..thanks

    Reply
    1. jik Post author

      It’s hard to disprove fault in a single-car accident. Are there any mitigating factors? Do you think you were less than 50% at fault? If so, why? What circumstances were there related to the accident that you could not have reasonably foreseen?

      Reply
  15. michael

    Hi.

    I was involved in a 3-car collision at low speed. It was raining earlier that day and the road was still wet (I do not have photographic proof of this- just a copy of a weather report that states it rained 0.66 inches that day). The front car (V3) slammed on her brakes. The second car (V2) then hit the front car and my car (V1), the rear car, rear-ended the second car.

    I was following at safe distance and at a safe speed but could not stop in time to avoid the collision.

    The police report stated that, in hitting V2, I “pushed” that car into V3. I assume that was based on testimony of the driver of V2, since there were no witnesses. I think that was false- I think V2 slammed on her brakes, hit V3, and I then slammed on my brakes and hit V1.

    My only moving violation was for an expired inspection sticker in 1987…otherwise my driving record is perfect. I started driving in 1969.

    I was issued a $20 ticket by the police for “failure to stop in time” . I am taking that to court, only because I believed that if found not responsible it might affect my insurance appeal. I don’t know if that is the case.

    From reading the above it seems like in a rear-end accident such as mine, my chances are low.

    What do you think? Is it worth appealing? And if so, what should I use as my argument?

    Thanks a million…..

    Reply
    1. jik Post author

      I think it is very difficult to overcome the presumption that you were at fault for a rear-ending accident.

      The fact that you ran into the vehicle in front of you is pretty much considered proof by definition that you were not “following at safe distance and at a safe speed.” If you had been following at a safe distance and speed and paying attention, then by definition you would have been able to stop in time.

      I would not bother trying to appeal if I were in your shoes.

      Reply
  16. JC

    My daughter had her first accident. She was turning around on a side street that is a hill and was not able to make the turn without hitting a stone wall. She said she put the car in reverse which she would be backing up up the hill and when she went to apply the gas the car went forward down the hill and hit the wall. If this worth appealing the surcharge?

    Reply
    1. jik Post author

      A single-car accident where the driver hit a stationary object is probably not appealable.

      Reply
  17. Melissa Rowe

    My 18 year old son was pulling away from a stop sign, accelerating to shift gears, when an animal darted out in front of his car. He swerved to avoid hitting the animal and lost control of his car, spinning around and hitting a few trees. The car is a total loss but otherwise there were no injuries or property claims. The roads were wet at the time and his tires were on the bald side.

    He’s been found to be more than 50% at fault, and he received a citation for negligent operation. I don’t believe that he’s at fault since the animal caused the accident. Is it worth appealing?

    Thank you in advance for your insight and wisdom!

    Reply
    1. jik Post author

      I honestly don’t feel like I understand this particular aspect of the law well enough to be able to render an informed opinion.

      The question is whether a driver who causes an accident by swerving to avoid an animal, when it would have been safer to stay the course and hit the animal instead (safer for the car, its occupant, and other drivers and pedestrians, not for the animal, obviously!), is considered negligent. I just don’t know the answer to that question.

      Here’s some wisdom from the internet on this question: http://www.icbcclaiminfo.com/node/16, http://www.mazinlawyers.com/single-vehicle-accident-claim/ (item 3).

      It seems to me that your son needs to be able to make the case that the odds of damage or injury were higher if he hit the animal than if he swerved to avoid it. However, given that it sounds like this was a significant accident (“spinning around… hitting a few trees… total loss”), I think that will be a hard case for your son to make unless the animal he was swerving to hit was quite large. Without that, my guess — and again, it’s just a guess — is that an appeal would fail unless the appeals board is in a particularly generous mood that day.

      It doesn’t help that his tires were bald. Operating a vehicle with tires that don’t have good traction is itself considered negligent, and therefore would contribute to finding him at fault for the accident.

      Reply
      1. Melissa Rowe

        Thanks so much for the prompt and thoughtful reply. I’ll let you know if we appeal… and if so, how it turns out.

        Reply
  18. Doug

    My girlfriend and I were involved in an accident last year and we wanted to know your opinion on whether we should appeal or not. She was the one driving and had a permit at the time. She was exiting the parking lot of an apartment, before making the left turn onto the main roadway we both made sure it was safe to proceed. Although there were parked cars on both the left and right hand side of the road which obstructed our view, she inched the car up slowly until we both were able to determine that it was safe to go after getting a clear view. There were no cars coming in either direction and she turned left at a normal speed. When she was about 80% inside the lane a car came out of nowhere and hit our front right fender. The damage to the other persons car was also her fender but on her left side. She had to have been speeding to come in that fast and only notice at the very last second that there was a car in front of her. Instead of rear ending our car, the other driver tried to swerve to the right of our car because there was no sidewalk there in order to avoid hitting us in the back. We believe she was speeding because she was coming from a curve about 350 feet away from the accident which would not have allowed her to see our car turning into the road, by the time she got out of the curve and realized that we were coming into the road it was too late for her to brake being that she was going so fast.

    Reply
    1. Doug

      The standard of fault code was: Failure to proceed with due caution from a traffic control signal or sign.

      Reply
  19. Susan Cornell

    My daughter was recently involved in a fender bender, and I was wondering if you think that it is worth appealing the surcharge. My daughter was entering an intersection to turn right. She was about a cars length behind an SUV who was also making a right. A car ran a stop sign on the side street and the SUV slammed on his brakes to avoid a collision. The car that ran the stop sign also slammed on his brakes, as did my daughter. My daughter’s car slid into the SUV rear-ending it, so she was found at fault for the accident. The SUV and the vehicle that ran the stop sign did not collide. I believe that she has some fault for the accident, but I feel that the driver who ran the stop sign ultimately caused the accident. My daughter did not receive a ticket, and was not found at fault by the police who investigated. The accident was minor with the SUV only having a small dent on its back door. We have photos of the damage. The insurance company claimed that because the SUV was a Subaru, that the parts are very expensive so the damage for a small dent ended up being just over $5,000 so she will get 4 points instead of 3. Looking at the photo, it is clear that the damage is not over $5,000, but the insurance company just paid the other driver’s insurance without assessing the damage independently. They refused to send a claims agent to assess damage or lower the payment. Is it possible to appeal the number of points as well as the “at fault”?

    Reply
      1. Susan Cornell

        Thanks for your quick response. The insurance claims adjuster suggested that we appeal, but if it is unlikely that we will win, I won’t bother. Can we accept greater than 50% liability, but appeal to get the points reduced from 4 to 3 since it was a minor accident, and only went over the $5,000 limit because the car part was expensive according to the insurance agent? She said the other party was given over $3,000 for a door and over $2,000 for labor. I have had work done on my car, and this seems excessive to me. Do we have any recourse?

        Reply
        1. jik Post author

          It seems to me that an insurance claims adjuster may be more informed than some random guy on the internet, so perhaps you should take the adjuster’s advice rather than mine.

          As for the cost of the repair, since you paid for it, I believe you are legally entitled to see the estimate prepared by the adjuster as well as the final bill for the work that was actually done to affect the repair, i.e., you are entitled to proof that the repair cost what you were told it cost. You could start by demanding those documents from the other party’s insurance company.

          If the documents support the repair cost you were given, I think it is unlikely that you will be able to get the number of points reduced.

          Reply
          1. Susan Cornell

            Thanks again for your help and suggestions. I will contact the other party’s insurance and request the repair documents. What strikes me as odd about this whole thing is that the number of points you get on your license for an accident does not depend on what type of violation that you are charged with, but rather on whether you hit someone with an old inexpensive vehicle or an new expensive one. I feel sorry for the person who rear-ends a new Porshe.

            Reply
        2. Micca

          Hi! I was in a similar accident
          Please tell me how the appeal went for you

          Reply
  20. Pamela Greene

    Hello,
    I was in an accident on April 7, 2016 on Concord Ave in Cambridge, going west between the 2 rotaries heading toward the Fresh Pond parkway. There was a nasty heavy rain that afternoon around 4:15 PM. Traffic was pretty well jammed and I needed to get into the left lane in order to make the left turn in the second rotary to go toward Belmont.
    I waited in the right lane with my blinker on and for two cars to pass. I then carefully merged into the left lane when I saw that the Jeep coming up was MORE than a full car length away and I thought the driver of the Jeep was waiting for me. Apparently he was not waiting for me and hit my left front fender with his tire.
    Rather than tie up traffic I pulled into the Dunkin Donuts and exchanged papers with the other driver.
    He complained that traffic was horrible and that it took him over 1 hour to get to Fresh Pond from Boston Common. In my opinion he was just frustrated and decided he was not going to let me go. I have an excellent driving record and do not believe that I am more than 50% at fault. The damage to my car was less than $2,000 and the other driver did not have a scratch as he hit me with is tire.
    Do you think I have a case for an appeal? I don’t want to pay $50.00 to submit an appeal and then have to go to court if it is going to get rejected.
    Thank you in advance for your help.

    Reply
    1. jik Post author

      What standard of fault did the surcharge notice you were sent specify?

      Reply
        1. Pamela Greene

          I should also mention that my car was pretty much entirely in the left lane before he hit me. I’m pretty sure he was almost up on the median.

          Reply
        2. jik Post author

          I don’t know what “05” means. Did it say anything else?

          Reply
          1. Pamela Greene

            Yes, the explanation was OUT OF LAND COLLISION.
            Would it help if I send you a copy of the Surcharge Notice?

            Reply
            1. jik Post author

              I assume you mean “out of lane collision.”

              See https://www.massrmv.com/MeritRatingBoard/SafeDriverInsurancePlanRegulation/TheStandardsofFault.aspx .

              So you were cited basically for changing lanes unsafely. To overturn the surcharge, you will have to convince the appeal board that when you started changing lanes, there was a big enough gap in the lane next to you, and the other driver accelerated into that gap and hit you after you started changing lanes.

              Remember that you don’t have to convince the appeal board that you are 0% at fault to overturn the surcharge. You only need to convince the appeal board that you are less than 50% at fault. In other words, while how cautious you were is relevant, how cautious (or not) the other driver was is also relevant, perhaps even more so. If the other driver could have and should have easily avoided hitting you, and didn’t, then you’re less than 50% at fault.

              If you think you can make a convincing argument to that effect, then you should appeal.

              But when you appeal, don’t say things like, “I thought the driver of the Jeep was waiting for me. Apparently he was not waiting for me and hit my left front fender with his tire.” This is not a place for uncertainty or ambiguity. Don’t second-guess yourself. If you think your decision to switch lanes was valid and correct and the other driver shouldn’t have hit you, then that’s what you say.

              If you don’t think that, i.e., if in retrospect you actually believe you made a mistake, then don’t appeal, because that means the surcharge was correct.

            2. Pamela Greene

              Thank you very much.. I will appeal.

  21. Jasmine

    Hello,
    So I am wondering whether or not I should appeal an accident where I was found to be more than 50% at fault and would love to get some advice on whether or not I should do it? Late at night a few weeks ago, around 11:30 pm I had been driving home after just picking my boyfriend up from work and was right outside of my house. When my neighbor, who NEVER has their dog on a leash despite there being a leash law in Massachusetts, let their dog out and it ran in front of my car. I tried to break and swerve out of the way so I wouldn’t hit the dog and ended up hitting a pole on my property. I received a letter from insurance agency telling me that according to the Standard of Fault Code 19 I am liable solely because I was the only vehicle involved in a collision. I was wondering if I should attempt to appeal it because I see nothing that I could have done differently that would have resulted in no damage to my car, since even if I did hit the dog I would still have damaged my car. Also it seems a bit ridiculous to me to blame someone for a car accident when it resulted because of someone else’s negligence of the law by not keeping their dog on a leash. There was absolutely nothing I could have done differently to keep my car perfectly intact so I am at a loss to see how this is my fault. Any suggestions?

    Reply
  22. Janet

    I’m wondering if you can give me your opinion about whether it is worthwhile to file an appeal in the following situation. There is no doubt that my son was 100% at fault in the accident, however, I’m wondering if there may be a chance to win on the issue of “due caution” in the following circumstances. I’ll try to be clear with the facts!

    My son was at a stop sign and in the process of making a left turn. He stopped. To make the turn, he needed to cross 2 lanes of traffic on his left. There was a lot of traffic and everyone was traveling slowly. After he stopped, he inched up to check traffic on his left. The car in the first lane of oncoming traffic (closest to him) stopped for him to turn left. He inched up further and looked to his right to check traffic – and traffic was clear. He then looked to his left again but because of the car that had stopped for him did not see the car coming in the 2nd lane. He hit that car as he turned left.

    Thanks for letting me know your thoughts.

    Reply
    1. jik Post author

      It doesn’t sound clear-cut to me that your son “was 100% at fault in the accident.” It sounds to me like he can make a good case that he exercised due caution and the driver who hit him didn’t. It’s by no means a slam-dunk, but if your son thinks he was sufficiently careful and the only reason why he was hit was because the other driver wasn’t, then I think it’s worth appealing the surcharge.

      Note that you get a surcharge if you are more than 50% at fault. So your son doesn’t have to convince the appeal board that he was 0% at fault. All he has to do is convince them that he shares equal blame with the driver who hit him. Equal blame means 50% at fault each, not more than 50%, so that would be sufficient to get the surcharge overturned.

      I’m not saying that because I think you should get into that math at the appeal. Don’t do that. 🙂 If your son thinks he did everything he could to avoid the accident, then he should appeal the surcharge and tell the board that.

      Reply
      1. Lisa

        Hi there!

        I was in a car accident back in December of 2015 where my front left tire popped on the highway and sent me swerving off in circles and hitting the guard rail before coming to a stop. I did have minor injuries but thankful it was nothing major due to wearing my seatbelt.

        I don’t feel I am more than 50% at fault because it was a natural accident. I was not speeding as the posted speed limit was 65 mph, and I was barely going 60 mph. It was a clear winter night with dry roads. I have received my court date for the appeal and was wondering what your thoughts were on me attending versus me sending in a letter. Also, do you have any thoughts on what I can write or say other than the truth that I described above to help me beat this surcharge?

        Thank you in advance for any advice you are able to provide.

        Reply
        1. Lisa

          Hi!

          I also forgot to mention no other cars were involved. It was a one car collision resulting in my car being totaled due to crashing into the guard rail.

          Thanks,

          Lose

          Reply
        2. jik Post author

          I’m frankly not sure how the appeals board views tire blowouts, so I don’t have great advice. All I can tell you is that if I were you, I’d probably appeal, show up in person, and just explain what happened.

          Reply
  23. Subra

    Hi
    Firstly, kudos on doing a great job helping a lot of people with their appeals. As you might have already figured I have an incident about which I want to get your opinion.

    I had a single car incident on a snowy day. Here are the details, I was driving into a smaller street from a main road which did not have any street lamps. There was no snow on the main road and there was lot of black ice on the smaller road. I was less than the actual speed limit, was driving at aroung 8-10 mph. I had to make a right turn and that is when the skid happened. I slided slowly ( it seemed like slow motion action replay for me inside car ) and hit a curb on the road. This resulted in a dent. I spoke to the insurance and they advised me to go with the claim and appeal the surcharge ( stating that I had a good chance of overturning the surcharge/ points). I collected the photos which clearly show the segments of the road with black ice , the lane having no lights, bad weather report in news papers. I can vouch that I had been driving cautiously and this that happened was not due to my negligence.
    Can you advise me if going for appeal is the right decision ? I thank you for the help.

    Reply
    1. jik Post author

      I’d appeal if I were you.

      It’s not a sure thing, but I think there’s a good chance you can get the surcharge removed.

      Reply
      1. Subra

        Thanks Jik for the confidence booster. I have the following for evidence :

        Lane without lights.
        Photos of the place with black ice.
        News for the day reporting a snow of 4.5 inches

        Can you help me identify any missing pieces that might bolster my argument ?

        I appreciate your help and time.

        Reply
  24. Jennifer Vant

    Hi,
    I parked my mini-van in front of my house on a wide side street at the end of a cul-de-sac before you pull out onto a main road. Three of my kids were inside (a 7 and 5 year old in the way back and a 3 year old in the back). I left my driver’s side door ajar and went to grab my mail from my mailbox. While I was on the other side of the car, a car came barreling down the road and even though there was plenty of room to go around my ajar door, he hit it bending it all the way forward and then processed to not even brake and never mind stop before pulling onto the 2ndary road at the end of the street. So it was a hit and run. My insurance company informed me that if the damage turns out to be more than my deductible (which it is, about $3k-$4 and that’s without knowing if there is any “hidden damage”) then I will receive a surcharge b/c in MA you are presumed over 50% at fault if an open door is hit. Do you think this is something a magistrate would overturn considering the speed, clear lack of attention, and fact that the other driver hit and ran? Or should I just pay the surcharge?

    Reply
    1. jik Post author

      I’m having a hard time following your description of where your car was, where the other car came from, etc. Can you draw a diagram and upload it somewhere public (like a public Dropbox sharing link) and share the link here?

      Reply
        1. jik Post author

          Yes, I think you should appeal the surcharge. The fact that you were on the other side of the car when your door was hit suggests that your door was open for a significant amount of time before it was hit, which means that there was plenty of time for the other driver to see and avoid your door. You’re not at fault, and you shouldn’t be surcharged.

          Reply
          1. Anonymous

            It was my inclination to appeal, because my understanding of the purpose of the law is for someone who opens their door without looking and the other car then can’t avoid hitting it which was clearly not the case here. I just wanted to make sure I wasn’t missing something. Thanks for your opinion on this!

            Reply
  25. Arun

    Hello,
    I had a minor accident last month, while taking a left turn.
    Turn was initiated after making sure that , traffic from both sides of road is i am entering is nil.
    after my car reached midsection of road, i inspected again right to make sure , no cars are coming out of a highway exit on my right, after that i was about to complete my turn. as soon as i turned head to left again, a car was right there on my path about to collide. i steered car to my left again to avoid it. But it hit me on my passenger side on head lights corner. This car could have negligently come from opposite road and could have being carelessly making a left turn. After incident other care left scene with out stopping. Since it was dark i was not able to note licence number. I called police and they reached scene.
    Now insurance is putting my at fault as ‘ 08 Failure to Proceed with Due Caution from a Traffic Control Signal or Sign’
    This is unfortunate since , i followed all traffic rules and cautious while making turn.
    How can i appeal this ?

    Reply
    1. jik Post author

      The insurance company found you at fault because you were involved in one of the kinds of accidents in which they are required to find you at fault by default.

      You should appeal. If you present your case in clear, straightforward language with a clear, straightforward diagram illustrating what happened, your appeal will almost certainly be successful. Your message should be that you did, in fact, proceed with due caution, at a reasonable speed with all of the required checking to ensure that there were no oncoming vehicles before you made your turn, and the other driver came out of nowhere and hit you.

      I recommend appealing in writing, not attending a hearing in person.

      Your description above is neither clear nor straightforward. Get someone who is a better communicator / writer than you are to help write your appeal letter.

      Reply
      1. Arun

        hi , how long did it take from submitting initial appeal and getting a final decision after hearing?

        Reply
  26. anonymous

    Hi
    Im 16 years old and I just got my license and bought a new 2015 car. A few weeks after I was driving my friend to the mall and we were on our way back home and I was getting out of the exit on to the highway and it was traffic time. And I wanted to switch to the left lane because I always think that far right lane will always bring you to an exit. So I put my left blinker on and the car was moving but I’m pretty sure I wasn’t go fast and I looked over to the left to switch lanes and I just crash into the car in front of me. Obviously it was my fault like I crashed into her but I feel like it could’ve been 50% my fault, not 100% my fault. Because like I was look to the left of the side to switch lanes when the car in front of me stepped on her brakes. But I have a surcharge appeal hearing that I requested tomorrow, commonwealth of Massachusetts division of insurance board of appeal. And I have no idea what to say, Im so nervous. My dad wanted this hearing so I said fine, like I don’t care really because Im paying for the insurance anyways. But what should I say? Do you think if they agree my insurance won’t go up that much? Really I don’t know what I’m doing…???? But please help me Thank You

    Reply
    1. jik Post author

      The question isn’t whether you were 100% at fault, the question is whether you were more than 50% at fault, and from your description of the accident, it seems pretty clear that you were.

      Furthermore, as has been pointed out repeatedly in the comments on this blog posting, it is extremely rare to be found less than 50% at fault when you’re the rear vehicle in a rear-ending accident.

      You say that your dad wanted you to appeal the surcharge. Did he have something in mind as the basis for your appeal? It seems like you should be talking to him about this, not to strangers on the internet.

      Another important point here is that if you’re 16 and you just got your license, then that means that it’s a Junior Operator License (JOL) which you’ve had for less than six months, which means that you weren’t actually allowed to be driving your friend to and from the mall (https://www.massrmv.com/rmv/brochures/JOL_brochure.pdf) unless your friend is over 18. The appeals board is not likely to overturn a surcharge for a Junior Operator who was violating the JOL law at the time of the accident.

      In short, as far as I can tell, all signs point to the surcharge being upheld on appeal. If I’d been in your shoes, I wouldn’t have bothered with the appeal in the first place. I’m not sure what your dad had in mind, but I suggest you talk to him about it ASAP.

      P.S. I removed your name from your comment because frankly I really don’t think you want to be broadcasting stuff like this all over the internet under your real name.

      Reply
  27. Erin

    HI,
    I was recently involved in an accident, I was on my way to the work and the person in front of me stop short. In order to avoid hitting them straight on I reared my vehicle to the right, but when I first went to step on my brakes they failed and that is why I reared to the right hitting the right side of the vehicle in front of me. My vehicle was about 10 days old when I got into the accident but wasn’t sure if it was worth appealing the surcharge? On the accident report the officer stated my brakes failed as well. Should I even bother appealing since I hit the person in front of me and in MASS I know you are more than 50% at fault?

    Reply
    1. jik Post author

      It seems like it would be extremely unusual for the brakes to fail on a 10-day-old car.

      The officer didn’t state in the accident report that your brakes failed. He stated that you said your brakes failed.

      Do you have any proof that your brakes failed, like a statement from the mechanic who diagnosed and fixed the problem with your brakes after the accident?

      If not, the appeals board is simply going to assume that you failed to apply the brakes properly. Mind you, I’m not saying that you’re intentionally lying, and they don’t have to believe you’re intentionally lying either. I’m saying — and I think they will say as well — that even though you think your brakes failed, what actually happen is that you failed to apply them properly.

      As such, I think it is unlikely that you will be able to successfully appeal this surcharge. You were following the car in front of you too close, too fast, and you rear-ended them as a result. That’s the textbook definition of a rear-ending accident, and it’s why the law presumes that the driver who does the rear-ending is at fault.

      Having said all that, let me remind you and other readers of what I’ve said here many times in the past… I am not a lawyer, and my advice is worth what you paid for it (and perhaps less). Ultimately, the decision of whether to appeal rests with you; I’m just offering my opinion.

      Reply
  28. Anonymous

    I was driving home around 2 am when a rather large animal (possibly a raccoon) ran out into the road directly in front of my car from the left side of the one-way street. It was too close to me to avoid by braking and I had very little reaction time, so I swerved to the right in an attempt to avoid hitting it. However, because the road is narrow, I swerved directly into the parked cars next to me. I swiped the first car’s rear door and then made impact with the second car’s rear bumper. I was not speeding and I did not lose control of the vehicle; I was simply trying to avoid hitting the animal.

    I got the surcharge notice, and I’m going to appeal it, but I wanted to know about my “odds” of winning it? Although I did hit both the parked cars, I don’t think I should be found at fault for this accident on the grounds that it was an “act of God.” The circumstances were out of any person’s control when the animal ran out in front of me. I reacted in the best way I knew how at the time.

    When at the appeal, could say that the accident was 50% my fault, but 50% the fault of uncontrollable circumstances in nature due to the animal running out into the road? If it were not for the animal, I would not have hit either car because I was in control of my vehicle and driving the speed limit.

    Reply
    1. jik Post author

      Definitely appeal. And drop the “could say that the accident was 50% my fault” stuff; that won’t help you. Just say that you swerved to hit an animal that ran out into the road directly in front of your car.

      Reply
      1. Anonymous

        Hey,

        This is the same author of the animal post above.

        I also think that I am going to appeal my surcharge in writing. Do you think I can defend myself well that way, or that I should just go in person?

        I also just had some questions about your wife’s appeal. Did she include any other documents along with the post you showed above? Any repair receipts from a mechanic or her registration or pictures of her vehicle?

        I’m just trying to get an idea of what I should submit because the notice is so vague. I don’t think submitting those kinds of documents help my case (they actually probably hurt it), so is it acceptable to just submit my written statement and hope for the best?

        Reply
        1. jik Post author

          Neither my wife nor I has ever appealed a surcharge at a hearing rather than in writing, so I’m not sure I’m in a good position to advise you on this question.

          Having said that, here are my thoughts, for whatever they’re worth…

          The letter above was all that my wife and I submitted for her appeal, because there really wasn’t any other evidence for us to submit that would have been relevant to the argument we were making for why she shouldn’t be held responsible for the accident.

          Your situation is similar, in that I don’t really see what other evidence you could submit that would be relevant to your argument. Is there any evidence that an animal darted out into the road in front of your car? That is the crux of your appeal; if there is no evidence of that, then there’s nothing relevant for you to submit.

          Given that your entire appeal hinges on your claim that an animal darted out in front of your car, and there’s no objective way to prove or disprove your assertion, I think whether you should appeal in writing or in person depends on whether you think you will be convincing and sincere if you appear in person. What it comes down to is this: if the people hearing your appeal believe you, there’s a chance that the surcharge will be overturned; if they think you’re bullshitting, it probably won’t.

          Reply
          1. Anonymous

            So I wrote in a statement, and my surcharge was vacated!!!!! 😀

            Reply
  29. Nina

    Hello there,

    I was involved in a small accident in the summer. I’m not sure if I should go through with the processes of appealing because there are many factors involved. I was on a ramp that was backed up heavily in traffic, I ensured that I kept a safe distance in front of me while following a school van. I had about a car lengths in front of me on the ramp and there were cars behind me following me so closely that it was making me uncomfortable, because it wasn’t a safe distance. Traffic was moving towards the ramp from rte. 146 to the ma pike. The lane we were in merges into a four lane bridge where the lanes that we merge into keep going straight, and the 2 lanes on the far left stop at a light to take a left turn to merge onto the MA Pike.

    The van in front of me was going along, as I kept a distance and the people that had the right away were driving fastly to make the green light while cars were also trying to merge into that lane yielding to the people speeding throught the light, and then merge again to the far left to take a left turn about 100-200 ft forward to the MA PIKE. This is just information how the lane works.

    In my minor accident the van in front of me was also following someone. that person in front of the van merged into the lane and kept going. The van in front of me proceeded but there were on going cars in the lane. she was trying to merge into that were speeding as they typically do, and she kept going and braking and I was aware of this so I ensured that I kept distance. She merged into the lane and was out of the way in front of me and then it was my turn to merge into the lane.

    I edged my way out looking into my blind spots to make sure that there was no one coming, I almost merged in but there was a car that was going way over the speed limit and he saw me and swerved into the lane to the left of me, so I turned forward immediately since I was safely trying to merge in and I looked forward and braked to avoid tapping her since she was going and stopping trying to merge again into the left lane (But she was already off of the ramp I was on and she was driving so when it was my turn to merge she was not there) and I tapped the back of her car going no more than 6MPH.

    I understand that she has the right to do what she wants, but i was safely at a distance when she got out of the merging lane we were in, and into the main road, and that is when it was my turn to go and merge and when I was trying to merge in, she was merging out of the lane towards the left lanes and It was too late to stop and I tapped her car because of her sudden stopping and going.

    Should I appeal, please ask questions it was hard to explain this scenario

    Reply
    1. Nina

      Also forgot to mention that after I slightly tapped the van she was going to drive away and was in another left lane that she merged into. I saw that she was looking in rear view to see what I would do and I signaled her to pull to the side to see what was going on. When talking she didnt really even care about it and didnt want to do anything but the school she worked for made her stop.

      Not sure if she had a commercial license since she was driving teens. Police came and didnt write a citation because it was so minor. There was a dent on bumper that costed 685 to repair.

      Reply
      1. jik Post author

        Your description of the accident is far too convoluted for me to understand what happened, so I can’t render any sort of useful opinion about whether you should appeal.

        It won’t help for me to ask questions, because answering questions will make the scenario more complex, not less. You need to boil the accident down to its essentials and give a much simpler, less convoluted description of what happened.

        In this situation — rear-ending another vehicle without any weather conditions which might have caused you to do so — the only way you can claim you weren’t at fault is if someone else was at fault, i.e., the accident was the unavoidable outcome of someone else’s unsafe, unforeseeable driving.

        If you can’t make a clear, straightforward, convincing argument to that effect, you will not win an appeal.

        Reply
        1. Nina

          Just so you know. I know the message that I originally sent in this blog post wasn’t clear. I was found to be not at fault for the rear end collision, so thank you for the structure and the advice!

          Reply
          1. J

            Nina what did u write? I too rear ended someone who stopped in a do not stop no parking area to unload an Uber client. No way he had 5k damage as his suburban had a quarter sized scratch.so curious what wrote or said specifically

            Thanks

            J

            Reply
  30. Anonymous

    Hi,
    So I was in a car accident I believe it was January . I rear ended a car as a result of the weather and the conditions of the road. I went to my family member’s house on my way there it was NOT snowing and I stayed there for about 2 or more hours and when I got out of the house it had been snowing enough so that my car was completely white from the snow. So as soon as I got on the road I was driving with complete percautions as I was on a road that I knew ahead of time from previous experience I was going to stop at a traffic light. From a far away distance I started to slow down and when I got close enough to notice the light was on red I started breaking when my car started to slide down (road ends on a decline) I had control of the cars direction but my car kept sliding down the hill. I was approaching the traffic light where there were two cars stoped when the light turned green meanwhile I’m still sliding my car would not stop.(Originally I needed to take a left turn at the traffic light) I then had three options 1. Go straight where there was a car driving straight ahead down the street 2. Take a right where there was a car down the street 3. Take a left where there was a car on the street. This all happened really fast because let me remind you I was sliding down a hill. I choose to turn left to where I was originally going with the hopes the wheels would eventually get a grip on the road. But all cars are driving slowly and with the speed I had gained from sliding down this hill the car didn’t move fast enough so that I can continue to eventually get traction again. So I inevitably ended up rear ending a car. The insurance company found me more than 50% at fault and now I have 4 points on my license. I was not driving recklessly I had no control over my speed since i was going down a hill. Even the police that showed up told me “this accident was due to the weather tell your insurance company that”. Unfortunately I have misplaced the paper the officer gave me stating this. But I’m wondering if I would be able to win an appeal for this case? I truly believe this was not my fault i had no control over my wheels being able to brake. Also it was not my brakes failing because I was able to drive home after the accident. Should I appeal?

    Reply
  31. Dee

    Hi,
    I recently was involved in an “at-fault” accident. I was about to enter a freeway and was on the entry ramp. The car ahead of me was about to merge into the traffic and suddenly hit the brakes. As a result, I rear ended this car (we are at less than 20 mph)- essentially my car barely scratched the back bumper of the front car.

    I received the letter now in the mail (a month after the incident). Is there any chance of me appealing this surcharge?

    Thanks

    Reply
  32. Keri

    I was involved in a fender bender this morning. According to the standards set by the state I will automatically be found at fault as I backed up into another vehicle. There are a few other circumstances involved here, though.
    My car was parked on private way, and there are two signs on one end of the alley stating that it is not a through way. People disregard these signs all the time. They come down the alley both ways to avoid traffic. The cars are parked nose in at an angle on the side of my building. With the cars parked, there is only enough room for one lane of traffic to pass behind. There are 3 sets of speed bumps to make people slow down.
    The police officer I called even commented on how bad it was with the constant traffic passing through and indicated he would note that in his report. He did not give any moving violations. Is there a way to get my insurance to not find me more than 50% at fault and avoid the surcharge altogether?

    Reply
    1. jik Post author

      You didn’t actually say whether the person who you backed into was driving at an excessive speed.

      If they were driving too fast, and you looked behind you immediately before backing out and they were not visible, and then they came speeding up the alley as you backed out and that’s how you ended up hitting them, then you might be able to make a case that you weren’t at fault. It comes down to whether the clerk handling the hearing finds your story credible.

      Note that the fact that they shouldn’t have been driving through the alley is not relevant. Even if they shouldn’t have been there, you’re still obligated to exercise due care when backing out, especially given that (as you acknowledged) people cut through the alley all the time.

      Reply
  33. Matt

    i am wondering whether I should appeal a surcharge. I was involved in an accident on an interstate. Traffic was congested when it suddenly broke free. Some one cut off the driver ahead of me (a 17 year old driver) who slammed on their brakes. Several car swerved around, boxing me in. Unable to manoveur, I rear ended the driver ahead of me. Since the accident occurred due to some third party and I rear ended the car in front of me, should I go forward on an appeal or just suck it up? Thanks

    Reply
    1. jik Post author

      Conventional wisdom is that it’s pointless to appeal an accident when you rear-ended someone else, because in a rear-end collision, the person in back is at fault by definition.

      Did police respond to the accident scene? Did they take statements from witnesses and/or file a police report about the accident? Was the person who cut off the driver in front of you cited? If the answer to any of these questions is “yes,” then just maybe you might be able to make a decent argument at your hearing, though even then it’ll be a tough sell.

      On the other hand… If the points on your license are going to end up costing you a lot more than the surcharge appeal fee, and you can spare the day to go to the hearing, then you might want to roll the dice. As they say, showing up is half the battle. I just wouldn’t get your hopes up. :-/

      Reply
  34. JKL

    Thank you for sharing such a helpful information. Two weeks ago, I was involved in an accident in a shopping center parking lot. I had slowly and safely backed out most of the way (at least 3/4 of my car was already backed out) from my parking space. I stopped to check around me before proceeding to change my gear into Drive. But before I had my chance to do anything, a car came around the corner into the lane and hit rear corner of my car on the passenger side. The other driver immediately backed up from the point of collision and apologetically said that he was very focused on quickly getting an empty spot past me on his left side and did not see me (even though I had backed out most of the way into the lane BEFORE he came around the corner). I was was stopped and NOT moving BEFORE the other car drove into me. The lane was also wide enough that other cars easily passed by us while I kept my car in the same backed out position and we were exchanging information after the accident. I also took pictures of how far I had backed out when the collision happened. The other car was damaged on the passenger side front and had a much bigger damage than my car (both are minivans). But the other driver decided to NOT file a claim and pay for his own repair (even though his car is a new 2015 minivan & repair will easily cost over $2000), so MY insurance is simply labeling this accident as “the insured hit another vehicle while backing out of a parking space” and decided to not “recover loss.” You see, I have a $1000 deductible and my appraisal came out to $1049 (i.e. costing my insurance company only $49). But I am out $1000 PLUS rental car for a week. AND I fear I will be hit with surcharges, because I am the “at-fault” party in this accident.

    What can I do in this situation? My own insurance company is not doing anything to help me. Should I file a claim directly with the other insurance company? But what good will that do? My own insurance company is labeling me as the “at-fault” party, using the “MA Standards of Fault” as their excuse. It seems that my only option is to appeal. Do you think I have a good chance of reversing the decision if I appeal? And if I am successful, will my insurance company pay me back for the $1000 deductible and remove any surcharges? Any insight/advice will be much appreciated!

    Reply
    1. jik Post author

      If you were not moving when your vehicle was struck, and your vehicle was struck from behind, then it seems clear that you were not at fault in the accident.

      If you have not spoken to your insurance company on the phone and informed them that their characterization of the accident is inaccurate, you need to do that. If the first person to whom you speak at your insurance company refuses to acknowledge and correct their error, you need to escalate — ask to speak to their supervisor — and keep escalating until either you talk to someone who will fix their error or they refuse to let you speak with anyone else. And if that happens, then when all this blows over, you need to find a new insurance company, because the one you have now sucks.

      You should have already reported the accident to the RMV and police. That’s required by law, since there was more than $1,000 in damage (see http://www.all-about-car-accidents.com/resources/do-i-need-to-report-car-accident-massachusetts.html). If you haven’t already done that, you need to do it immediately, since you were supposed to do it within five days of the accident. Filing this report will help protect your rights and help you make the case that you were not at fault in the accident.

      The other driver was required — by the standard terms of auto insurance policies in Massachusetts — to report the accident to his insurance company. You absolutely should contact his insurance company directly and notify them about the accident and tell them you wan to file a claim against the other driver directly with them, since your insurance company has declined to stick up for you. They will then contact the other driver and ask him to explain why he did not report the accident to them. It will not go well for him. If he acknowledged at the time of the accident that he was at fault, and he knew at that time that he wasn’t going to report the accident to his insurance company, then he should have offered on the spot to pay for your damage “off the books” so you wouldn’t report the accident to your insurance company either. It was stupid of him not to do that.

      When all that’s done, if your insurance company insists on continuing to classify the accident as your fault and you receive a surcharge notice in the mail, then you absolutely should appeal the surcharge.

      Reply
    2. sydney haughton

      I’m in the process of appealing, would a lawyer help?

      Reply
  35. Carol

    I appreciate your post and recently appealed an at-fault incident. I mailed in my statement well before my date and chose not to appear in person. My date was June 24, and today is now July 9. About how long did it take before you knew your verdict? Do they mail it to you, or do you have to chase them? Thank you! Your post was very helpful and my fingers are crossed that it worked for me…

    Reply
      1. Carol

        Thank you!! I must have searched on the incorrect key words because I could not find this information. Much obliged.

        Reply
    1. Eva

      I was in an accident in January and I was found at fault. It was a clear day (as the police report states) and there was no weather conditions for the past 4 days so the roads were all really clear. Sunny out and everything. I was driving on a winding road that opened up to a causeway – a road completely surrounded by water for those unsure. As I started turning the corner out of NOWHERE there was a ton of snow packed onto the road and more continuously drifting into the road. It was a complete white out and the second my car hit the snow it just took my car, I fishtailed in the process of stearing myself through it and my rear end turned into the other lane where an oncoming car hit me. I was at fault for being in the other lane. I just appealed it and my hearing is in 3 weeks. I’m trying to prepare myself as much as possible. I need to win this. My insurance went up to almost $4500 a year when its the only accident on my record. I have tons of pictures, the police report, weather reports and so on. You think I got a chance?

      Reply
      1. jik Post author

        It’s hard for me to say whether your appeal will be successful.

        If an accident like the one you described happened to me, I’d probably appeal.

        Having said that, I can’t imagine a single accident causing your insurance rates to go up by $4,500. Either there’s more to the story (e.g., do you have multiple moving violations on your record? what was your SDIP rating before this accident? do you have an extremely low credit rating?), or you might want to consider finding a new insurance company.

        Reply
        1. Eva

          I’m only 19 so as a young driver my insurance started at over 200 a month. I switched to Plymouth Rock to save $20 a month and then got in that accident. I have no moving violations at all prior to this accident and no credit at all. My insurance doubled through Plymouth Rock from the accident. I just recently started looking into MetLife and they quoted me only $1,000 a year with 4 points on my record. I’m planning on switching now but I want to see if I win my appeal first so my insurance has to pay me a chunk back!

          Reply
          1. jik Post author

            Sorry, I misread your original comment and thought you said that your insurance went up _by_ $4,500, when what you actually said was that your insurance went up _to_ $4,500. Given your age (the actuarial tables discriminate against young people; math is math!), that’s understandable.

            Reply
            1. Eva

              I figured I’d let you know but I just got home from my hearing and it went really well but I’m kind of unsure at the same time. I walked in and she first asked me for pictures and I showed them and then she was like “oh wow the roads were really clear before the accident place.” And then I showed her the speed limit and everything else I had for pictures and she asked me if they salted or sanded and I said no and she took all the papers closed it all in a file and said “I can’t believe that, I’ll notify Plymouth Rock. I’ll take care of this for you Hun, you’re all set.” And I left.

  36. Anonymous

    I hit a pot hole on Rt. 3 north in the Braintree area and was told when I took my car to be inspected in November that it would not pass due to an out of alignment in the rear tires. I took the car to the dealer and as a result, required $3400 in repairs which I submitted to my insurance company. I was later notified that I would be given points on my license and a $250 surcharge for 6 years. I have decided to appeal the surcharge and the points. The insurance company was required to submit a form to the State of MA and this was termed a one car accident. To me it is a no fault situation caused by an outside agency (pot hole) and should not carry any penalty for me.

    Reply
    1. jik Post author

      Sounds right to me.

      But I think the dealer ripped you off, as dealers are wont to do. I can recommend a good place in Waltham that won’t rip you off. 😉

      Reply
  37. CKN

    Last year I was driving from Waltham to NYC on April 16, 2014 for an appointment to get a new passport. I was supposed to travel in June and needed my passport renewed. Rescheduling wasn’t an option because it had taken me 2 months to get the date in the first place.

    Unfortunately on April 16, at 4:00 in the morning there was a snow-rain wintry mix and the highways weren’t treated at the time I was driving (4:45 AM). Initially I was in the 2nd lane from the left well under the speed limit. But I was being passed on the right by several 18 wheelers’ and as they passed me by, they’d throw up slush over my windshield. This was completely obscuring my visibility and I was forced to switch lanes, to the leftmost lane because I din’t want to be driving next to a 18 wheeler without any visibility. While doing so my car hydroplaned and I hit the concrete guard rail. There was damage to my bumper and slight damage to my tail light.

    I didn’t receive the surcharge notice and now that my policy is about to renew I see that I was awarded 4 points on my driving record. This is going to cost me $1000/year in insurance premiums for 6 years. I plan on appealing regardless of the outcome because its well worth my time. If it is assessed, what do you think my chances of successful appeal is? And what do I need to do, to prepare to make a best case at appealing?

    Thanks in advance.

    Reply
    1. jik Post author

      I sympathize with your circumstances. Many years ago, I was involved in a similar accident right after a snowstorm when the roads had not yet been adequately treated.

      It is difficult to win an appeal for a surcharge resulting from a single-vehicle accident.

      The prevailing assumption is that you were not driving safely for the current weather conditions. This is true pretty much by definition if there were no other vehicles involved in the accident.

      It seems to me that to overturn the surcharge, you would need to demonstrate that circumstances required you to be on the road despite the poor driving conditions, and that you could not have reasonably anticipated the conditions that caused you to hydroplane and hit the guard rail.

      The former doesn’t sound like it would be hard to prove, but I really don’t know how you could successfully prove that you couldn’t have anticipated the accident.

      If it’s really going to cost as much as you think it will in terms of increased insurance premiums, then it is probably worth spending the money to speak with a lawyer who specializes in surcharge appeals.

      I’m not a lawyer, and my advice is worth what you paid for it. :-/

      Reply
  38. NEM

    I was recently in a single car accident on 495. We had snow overnight and all of the roads had been treated and just wet. I was in the far right lane, it was 4:30AM. I suddenly approached the lowest point of the highway where water had pooled. The “puddle” covered the entire right lane. I apparently hydroplaned, went up and over the 7 foot snowbank and crashed down into the woods. The State police came and closed two lanes of the highway for the frontend loader to clear the drain which was covered in snow. I received my surcharge notice yesterday. When you hit a deer on the highway that is considered no fault. How am I at fault for an obvious goof by MASS DOT?

    Reply
    1. jik Post author

      This one seems like a tough call. On the one hand, it’s very difficult to overturn surcharges resulting from single-vehicle accidents, because there’s an obvious presumption that if you were the only driver involved, you must have been driving negligently to get into an accident.

      On the other hand, the conditions you describe sound bad enough that you could argue that you could not have reasonably anticipated them.

      If I were in this situation, I’d probably go ahead and appeal the surcharge.

      Reply
  39. Scharjeel

    What are the chances of winning a appeal?

    I was driving on a highway (I-91) in the left lane of three on wet and ice covered road surface. I lost control and car spun onto the left shoulder striking a wire rope guardrail with the right side of the vehicle. I was traveling in the left lane at approx. 40 MPH when i began to lose control of the vehicle and spun and struck the guardrail. Physical evidence consisted of minor / moderate damage to the right side of car and approx 20′ of wire rope guardrail that was knocked down. The roadway was wet and ice covered with light freezing rain falling. The posted speed limit was 65 MPH. Cop came over and he didn’t give me any ticket but he mentioned in a police report that cause of the incident was found to be traveling too fast for such conditions.

    No other car was involved in an accident.

    Reply
    1. jik Post author

      The odds of winning an appeal in a single-vehicle accident are quite low.

      Reply
  40. Steve

    Good morning,
    I have an appeal coming up regarding backing up out of a very small tight parking lot on a sunny day and being blinded by the sun while doing so. Using the side of caution while backing up I bumped into a vehicle behind me. They owner of the vehicle gave me a quote of 246.00 than decided to go through insurance company and the total loss was 506.00 just 6.00 over the limit of not getting a surcharge.
    Any suggestions on appeal?

    Reply
  41. CC

    I was in an accident this past summer while traveling on the MA Pike with my two young daughters. There was a (very) large metal object in the middle of the middle lane and I was unable to change lanes to avoid it, because there were cars on either side of me, and I had no other option but to drive over the thing. I immediately pulled over to the side of the road and got my girls out of the car. There was gas pouring out of the gas tank (the object had punctured it) onto the road and I was petrified that the car was going to blow up. I called 911 and spoke with someone from the police department (MA State, I believe) and they sent a MA DOT worker out to clean it up. The police never came, nor did the fire department (again, there was gas pouring from the punctured gas tank onto the road). I now have an appeals hearing scheduled for January 7th. I was 0% at fault for this accident and am trying to decide if I should attend the appeal hearing or just send in my statement and pictures of the object. BTW, the MA DOT worker said that they find these metal things in the road all the time and he thought it came off of a mutli-car tractor trailer truck (he said it looked like part of the ramp). In my opinion, this is a shut and closed case that I was not at fault. Thoughts? Is it worth my time, energy and money to physically attend the appeal? Thank you.

    Reply
    1. jik Post author

      You should absolutely appeal, and I don’t think you need to show up in person, I think a written appeal will be enough to get the surcharge overturned.

      Just remember, I’m not a lawyer, take my advice at your own risk, it’s worth what you paid for it, etc.

      Reply
  42. 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
  43. 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
      2. J

        How does one prove prior weather. How does board check your stated proof of prior weather.?

        Reply
        1. jik Post author

          You can get historical weather data and forecasts from various sites, e.g., https://www.wunderground.com/history/.

          You can also check contemporaneous news reports (e.g., do a date-restricted search at https://news.google.com/) to see if there were any auto accidents reported the same day as yours.

          I don’t know whether or how the appeals board verifies claims that weather impacted driving conditions.

          Reply
  44. 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. 😉

  45. 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
  46. 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
  47. 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
  48. 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

  49. 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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