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

By | April 9, 2010

My wife was involved in an auto accident last September which was not her fault — she opened the door of her parked car after confirming that no one was coming, and another driver came whipping around a corner and hit her door.  Her insurance company found her liable for the accident and issued an SDIP surcharge, because the regulations state that the person opening the door is assumed to be at fault whenever an accident like this occurs (just like the person in back is assumed to be at fault whenever one car rear-ends another).

Everyone with whom my wife spoke about the surcharge told her not to bother appealing.  Several people claimed to have waged unsuccessful appeals when they were not at fault.  The prevailing wisdom seemed to be that the system is rigged against drivers.  Nevertheless, I insisted that she appeal and even ghost-wrote her affidavit (we chose to appeal in writing rather than attending the hearing).

Today we received a notice that my wife “did demonstrate a showing necessary to rebut the governing presumption of the applicable standard of fault,” and the surcharge was vacated.  Woohoo!

Here’s the affidavit I wrote for her which was successful at getting the surcharge overturned:

March 19, 2010

Commonwealth of Massachusetts
Division of Insurance / Board of Appeal
1000 Washington Street, 8th Floor
Boston, MA 02118
Attn: Statement Section

To whom it may concern:

Thank you for the opportunity to present my case for your consideration.

The open door of my parked Honda Odyssey minivan was hit by another driver.

I checked that the roadway was clear immediately before opening my door. No cars were in sight.

I then opened my door all the way and placed one foot on the pavement before suddenly realizing that there was another vehicle about to hit my door. I had time to pull my leg all the way back in and partially shut my door before that occurred, such that I was not injured and the only damage to my minivan was slight damage to my door’s trim.

When you consider the time that it took me to open my door all the way at a normal speed (i.e., I didn’t throw it open quickly or anything), put one foot on the pavement, realize that a vehicle had “come out of nowhere” and was about to hit mine, pull my leg fully back into my minivan, and close my door more than halfway, it should be obvious that the other vehicle (a) could not have been close to mine when this sequence of events started and (b) was probably traveling at an excessive speed and possibly not paying attention.

Here is a satellite photo of where the accident occurred:

I have marked where my car was legally and properly parked, only a couple of inches from the curb, with a red rectangle. I would like to call your attention to two features of this scenario:

  1. Note how wide the single traffic lane is on that part of Faneuil Street, which is one-way. In a traffic lane that wide, any car driving close enough to the parking lane to clip a door was being driven negligently.
  2. As I noted above, I did not see the other vehicle when I checked the roadway before opening my door, nor do I have any direct knowledge of where it came from. However, it seems likely to me that the vehicle either turned right from Bigelow Street onto Faneuil Street as shown by the blue arrow in the photo, or left from N435 onto Faneuil Street as shown by the green arrow. In either case, it appears that the other driver made the turn too quickly and/or without paying sufficient attention and did not notice my already open door until it was too late for him to avoid colliding with it.

Given all these details, I think it is clear that I was not responsible for this accident.

Thank you again for taking the time to consider my appeal.


Andrea Kamens

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

  1. jamie

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

    1. jik Post author

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

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

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

      1. jamie

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

        1. jik Post author

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

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

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

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

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

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

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

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

          1. jamie

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

            1. jik Post author

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

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

  2. Jerry

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

    1. jik Post author

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


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