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

  1. Dee

    Hello, thanks for this post. I have an appeal coming up for a single car accident I was in and would appreciate any input/thoughts.

    I was heading north on route 128 around 6am on a clear Thanksgiving morning going a reasonable speed (60mph) in the far right lane and hit a large patch of black ice that I could not see as it was still dark at the time. My vehicle began swerving and I tried to regain control but was not able to due the ice, and my car spun out and collided head on into the highway median so hard that it bounced back from the impact, all airbags deployed and my cars final position was in the far left lane facing the wrong direction. Thankfully there were no other vehicles involved, but it was obvious that my car was totaled.

    I got out of the car and called the police, and someone who was driving behind me in the distance had pulled over to see if I was okay. A state police officer arrived and he informed me that a similar accident had happened about 30 minutes prior due to this same patch of black ice and a sanding truck was on the way. There were no traffic controls indicating this patch of ice in the meantime. Low and behold just minutes later a sanding truck comes driving by. What luck.

    Anyway, I have the police report from the accident that mentions that the road conditions were icy, the weather was clear, there were no traffic controls indicating the black ice, and that MA highway was notified to sand the roads. The police report also indicates that there was no speeding, distractions, or substances that influenced the accident. I went online and printed the weather for the previous day and the morning of the accident. The previous day it did rain, but stopped in the evening and was clear for at least 12 hours prior to the accident with temperatures above freezing. I could not have anticipated this black ice. Just prior to the accident I made it down the mass pike and then halfway up 128 with no issues. I also have pictures from the morning of the accident which shows the damage and how dark it was. I am wondering if the above documents are appropriate to bring to the appeal, and if there is a chance this surcharge can be overturned.

    Thank you for your help,
    Dee

    Reply
    1. jik Post author

      Wow, I’m sorry you had to go through that, and I’m glad you’re OK.

      I would definitely bring all that material to the appeal, and I think there’s a good chance that you will be able to get the surcharge overturned. Good luck!

      Reply
  2. Yoon

    Dear JIK,
    I am so happy to see this for people – thank you!
    My father was driving my car while I was out of town with permission and was not driving for my benefit. He was at a gas station and a car was parked at the pump on the wrong side and made it tight for others to get by. In the attempt to go around the car my dad came into contact with his right side back panel and got out of the car as the owner of the other vehicle (Tony) came over aggressively ordering him to move it as my dad was trying to assess the contact between the car and demanded the keys. My dad said it is a keyless car and then he sat in it and pushed the button to start it and without permission drove further into his own car and “stuck” together. My dad said to get out of the car and told him to drive his own car forward which dislodged the car. His attempt at driving our car made the situation worse by driving further into his own car it was further damaged and he in part contributed and worsened the damage to his own car. What do you think and any tips as to how to word this better would be greatly appreciated. Again thank you for doing what you do for folks out here like us.

    Reply
    1. jik Post author

      Your dad is at fault for hitting the other guy’s car when it wasn’t moving. It’s highly unlikely that you will be able to overturn a surcharge for colliding with a stationary vehicle.

      Note that the at-fault finding for colliding with a stationary vehicle is independent of the amount of damage caused by the collision. Therefore, the fact that the other driver made the damage worse by getting into your car without permission (wow, what an asshole, I can’t believe he did that!) and driving in the wrong direction will not change the fact that your father was found at fault in the accident.

      However, what does change depending on the amount of damage is the number of surcharge points you get on your insurance as a result of the accident. If the damage to the other vehicle was extremely minor before the other driver got into your car and started driving it, then you can and should argue that the only surcharge points your dad should be receive are the minimum number of points for the accident itself, not for the damage.

      If I were you, that’s the angle I would take in my appeal.

      I may be reading too much into what you wrote, but judging from the tone and cadence of your words above, I get the impression that perhaps English is not your first language? Again, I’m just guessing, and not trying to offend, so please forgive me if I’m mistaken. My point in bringing this up is that if your father is not fluent in English, I think he’s going to find it challenging to make a compelling case to the appeal board. It shouldn’t be that way, but that’s just the reality of how people often behave. If I’m right, then I’d like to suggest that your father bring an interpreter with him to the appeal who is fluent in English, to minimize the communication barriers between your father than the appeal board.

      Alternatively, your father can submit his appeal in writing and someone who is a good writer in English to help him formulate it for maximum persuasion.

      Good luck!

      Reply
  3. Olivia Lessard

    Hello, I was recently involved in a 2 car collision where the police officer I called to the scene considered me at fault. I haven’t received anything from my insurance company yet but wanted to get your opinion on if I should appeal if they come to the same conclusion. I was driving on Main Street in an unfamiliar area and my turn was coming up really soon, so I had my right turn signal on to let the cars behind me know I was going to be turning shortly. There was a vehicle stopped at a stop sign on a side road waiting to take a left turn, she saw my blinker and assumed I was turning down the street she was on, and immediately shot out to try and take her turn and hit the right side of my vehicle. The police officer wrote in the report that he thinks I’m at fault for “improper use of turn signal”. I just don’t understand the reasoning and it sounds like something I should appeal. There are many reasons my blinker could have been on, and where I had the right of way, isn’t it the other drivers responsibility to be sure it is safe to leave the stop sign? There was a plaza entrance about 50 ft from the side street, the next street (the one I was going to be turning onto) was immediately after that. For all the other driver knew, I could have had my blinker on because I was pulling off to the shoulder of the road because of an emergency. I just don’t understand the reasoning there. I saw her stopped at the sign as I was driving and the next thing I knew she was hitting me and she totaled her car pretty good, so she was definitely leaving the stop sign at a pretty high speed. I was visibly moving too fast to even safely take that turn… Thanks in advance for your time and input. Great blog!

    Reply
    1. jik Post author

      Personally, if I were you I would appeal both the traffic citation and the surcharge.

      Reply
  4. Andy

    I was just getting on the highway and was trying to merge in the lane to the left. I continued to drive in my lane while waiting to let a truck pass. Meanwhile a car from left lane came into my lane without signaling and applied brakes and stopped. Luckily I was not speeding and on applying brakes, but still was involved in fender bender.
    Insurance company said that since the other driver had established lane, it was my fault. I think other driver was able to establish lane because I was slow and still to shift lane without signaling is still inappropriate.
    Do you think I should appeal?

    Reply
    1. jik Post author

      I’m having trouble understanding the circumstances of your accident.

      Were you in an actual traffic lane on the highway, or were you on the entrance ramp, not yet fully merged into a traffic lane?

      If you were in an actual traffic lane and driving at a reasonable speed for that lane, then the fact that you were “just getting on the highway” doesn’t seem in any way relevant to your accident. So I’m confused about why you mentioned that.

      If you were in an actual traffic lane, driving at a reasonable speed, and someone cut in front of you and immediately braked before you had time to increase your distance from them after they cut into your lane, then yes, I think you should appeal the surcharge on those grounds.

      I don’t know what the insurance company means when they say “the other driver had established lane.” That sounds like nonsense to me, so it seems like either they told you nonsense, or you aren’t accurately relaying what they told you. In any case, it’s irrelevant, because as I’ve noted in other comments here, since you were the rear vehicle in a rear-ending accident, the insurance company was required by law to issue you a surcharge notice, regardless of whether they actually believe you were at fault.

      Reply
      1. Andy

        It is tricky because- most entrance ramps will merge into main lanes, but this ramp is weird in a way that ramp continues as a main lane- which then leads to another (next lane). I was in the same lane as the ramp but the ramp was over. So I was on the highway trying to merge in to the lane to the left.

        But thank you for your answer. I really appreciate it.

        Reply
  5. James

    Rear end Collision

    I was sitting behind another car at a green light waiting to turn left across oncoming traffic and into the mall parking lot. The driver ahead of me had more than enough time to turn but was distracted by the phone held to her head. I beeped to let her know the light was green . No movement. Beeped again. She looked up at her rearview and threw her free hand up in a “What do you want?” manner. I motioned her to go. She slowly proceeded, then abruptly stopped. Now I’m in the path of oncoming traffic. I wasn’t riding her bumper. I honked longer. As she’s cursing me in her mirror, she speeds up and then slams on her brakes. Too late for me to react.

    Am I still more than 50% at an appeal?
    thanks.

    Reply
    1. jik Post author

      If I were in your shoes, I would appeal. Though I honestly can’t say how likely it is that your appeal will be successful.

      Reply
  6. Zuleisha Y

    Hi,

    So I was found 50%+ at faukt for a rear end collision that was not my fault at all. I was driving north down a busy 4 lane roadway, the lane to the far right was the merging lane and I was the next lane over to the left of it. It was rush hour traffic and there were so many cars on the road, not to mention it was pouring. The man in the merging lane by law is suppose to yield prior to merging, and instead of yielding as he was supposed to flew down the roadway and out of nowhere with no signal, nothing, jumped right in front of my car (not entirely in front, about half of the left side of his car made it in front of mine). I had no way of avoiding the collision as he gave himself a foot or less to merge in front of my car. It was virtually impossible to stop in time(which I tried) to avoid the accident as I had no time or space to not hit him in the rear. There was virtually no damage to my car (98 Toyota RAV4) and his rear had a dent in his trunk portion (also a RAV4 but newer). I have a few days left to appeal it and am trying to word my story in such a way they don’t try to blame me when it wasn’t my fault. I gave my statement the first time and evidently something I said threw them off and found me at fault.

    Do you think I have a chance at winning and what should I say or not say to explain this in such a way they don’t over analyze every word I say???

    Thank you!

    Reply
    1. jik Post author

      Don’t assume that “something [you] said threw them off.” According to state law, the insurance company was required to issue you a surcharge notice because you were the rear driver in a rear-end collision. The circumstances of the collision and your statement were irrelevant to the issuance of that surcharge notice; they had no choice about it.

      You should definitely appeal. Just explain, calmly, what happened. I think it’s likely that the surcharge will be overturned.

      Reply
  7. Don

    This is a great blog, and I’d like to thank you for running it and providing your advice.

    I am wondering what my chances are of winning an appeal, and if it makes sense to invest the time to show up at the hearing or if my chances are about the same just submitting written evidence.

    I was in a parking garage, backing up into a parking spot, and hit the adjacent car. Mitigating circumstances that I put on the appeal form included that it was 6am so not very light out, thunderstorms making it even darker than usual, overhead light out of service in the garage making things harder to see, relied more on my backup camera because of the poor lighting in the garage, but the picture was distorted due to the rain that kicked up on the camera lens (I didn’t realize how distorted it was until after the accident unfortunately), and the fact that (also didn’t realize this until after I contacted the car) the car was slightly over the yellow line.

    I know normally making contact with a parked car is a no brainer at fault accident, but I wonder if the circumstances involved would make it likely to be found less than 50% at fault. Also wondering if there is benefit in appearing personally vs. just sending in written evidence. Finally, albeit maybe a technicality, the accident date on the form is not correct — the accident happened a week before the accident date on the form. I appreciate your thoughts and advice.

    Reply
    1. jik Post author

      The likelihood of successfully appealing this surcharge on the merits is extremely low. None of the mitigating factors you mentioned change the fact that you are responsible for being sufficiently aware of your surroundings not to collide with stationary objects.

      Whether you’d be better off appearing in person vs. sending in a written appeal depends on whether you come off as likable, trustworthy, and persuasive in person. Only you can be the judge of that.

      The date being wrong on the surcharge notice is not likely to cause it to be overturned. If there’s an error on the surcharge notice, you’re supposed to contact the insurance company and ask them to fix the error and issue you a new notice before filing your appeal.

      Reply
  8. Janice

    I was in a car accident and was determined to be at fault by my insurance company. I was traveling west down a secondary road with a stop sign. I stopped at the stop sign but my view was obstructed by a parked truck at the corner of the intersection to my left. The street I was attempting to enter turns into a one way to my right. My goal was to cross the intersection. I was not turning.

    I looked behind the truck and did not see any oncoming traffic. I did notice that the traffic light at the next intersection to my left was yellow. I proceeded with caution and was barely moving when a car hit the front corner of the driver’s side of my vehicle. Only the front end of my car was passed the truck when I was hit. My insurance company found me at fault and charged me 4 points. There was very little damage to my car. The total cost to fix my car was $680.00. The other driver’s car was totaled and my insurance company paid 16,000 for the other car and deemed it a major collision.

    I am appealing the insurance company decision on the grounds that I was not at fault. I stopped at the stop sign but since my view was obstructed there was no way for me to see the oncoming car and I proceeded with caution. (I have pictures.) Also, The fact that the street light at the intersection the driver would have to cross before hitting me was yellow, he would have had to either speed up to make the light before it turned red or run the red light. He did not have time to wait for a green light. The distance between the two intersections is about 75 yards. As mentioned previously, only the front end of my car was passed the truck when I was hit. I would think that the amount of damage to the other car would also be an indicator of speed. The speed limit on this road is 25 MPH.

    I have traveled this same road five days a week for 17 years and in those 17 years, I have seen six accidents at this intersection so I know the intersection is dangerous and always take caution. Prior to the accident I had an excellent driving record with no points. Do you think I have a shot at winning my appeal? Four points seems excessive, especially when I had accident forgiveness on my policy. Thanks

    Reply
    1. jik Post author

      I think there’s a good chance your appeal will succeed. Good luck.

      The number of points you got in this case is solely due to the cost of the damage; it has nothing to do with the the driving mistake you (supposedly) made. See this page (“A major at-fault accident results in a claim payment of more than $5000 for damage to someone else’s property, collision, limited collision, or bodily injury to others.”). Major at-fault accidents get four points automatically. So if I were you I wouldn’t focus on the number of points you were surcharged. Just make the argument that you were driving safely and the accident was caused by the other driver’s excessive speed.

      Reply
      1. Janice

        I lost my appeal. I really feel strongly about this. I did everything possible to be safe. Do people have much luck appealing the board’s decision?

        Reply
        1. jik Post author

          I’m sorry you lost your appeal. It does seem unfair.

          I don’t have any experience with the process of appealing a decision by the appeals board, so I can’t comment on how likely it is to be successful. However, I can say that the legal fees for doing so may very well exceed the extra insurance premiums you’ll end up paying as a result of the surcharge. :-/

          Reply
  9. Joe

    Hi! This is a great resource. I’ve read through, I think, nearly every post and I get the sense that SDIP starts to add points when the damage is over $500 but what about a moving violation where there is no damage? Can you point me anything that might help me there?

    I mean, I can understand the idea of being fined (the ticket) for a moving violation but there if is no damage then I’m not sure how to react or what (if anything) can be done.

    The violation for a left turn at an intersection where I was following a bunch of other cars (and my GPS). I was new to the city at the time (first time driving on campus area, just to move in). When I went back to take pictures I did notice a No Left sign. I’m assuming it was new or something because of the other cars doing the same along with the instruction from the GPS. I mean, I did pay the ticket, I just hate to pay an insurance increase particularly since the insurance company had no costs.

    Any thoughts?

    Reply
    1. jik Post author

      Your rates don’t go up when you are surcharged to pay off the cost to the insurance company of your prior accident. Rather, the rate increase reflects the fact that a surcharge indicates that you are at higher risk of having an accident in the future. It’s also intended to to encourage safer driving habits, i.e., if you know moving violations lead to surcharges and higher rates, you are less likely to commit moving violations.

      Therefore, the fact that your illegal left turn did not cause any damage is not grounds for the surcharge to be appealed.

      I wouldn’t assume that the “no left turn” sign was new just because other cars were turning left at that intersection. People ignore signs all the time. It seems just as possible that you just didn’t see it the first time, perhaps because other drivers were turning left so you thought you had no reason to check if a left turn was OK. Having said that, you could call the town’s traffic department and ask whether in fact the sign was newly erected, and they should be able to tell you.

      I think that a surcharge appeal on the basis of the fact that there were multiple other cars turning left at the same intersection so you thought it was OK, and your GPS also told you that it was OK, might be successful, but it’s not a sure thing. If I were in your shoes I would probably appeal.

      Reply
  10. Nikolaus Kennedy

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

    Reply
    1. jik Post author

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

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

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

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

      Reply
  11. bita

    Hi

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

    Reply
  12. Andrew Wagner

    Hi Jonathan,

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

    Reply
    1. jik Post author

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

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

      Can you tell us more about how this happened?

      Reply
      1. Andrew Wagner

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

        Reply
        1. jik Post author

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

          Reply
          1. Andrew Wagner

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

            Reply
            1. Andrew Wagner

              Hi All,

              In the process of submitting my appeal I’ve learned a few tips and tricks of navigating the RMV, Merit board and Board of Appeals I’d like to share. Before you’ve submitted an appeal to the Board of Appeals make sure to make a copy of your completed appeal form. After mailing your appeal form in the board will cash your $50 check promptly but your appeal will take several weeks to be entered into their database and it will take 4-5 months before they are able to issue a hearing date. This may seem frustrating if you’re eager to have the surchargeable offense removed from the RMVs record of your driving and fortunately there is a pretty painless way to get this to happen. The trick, I discovered almost by accident, is to email the RMV with your request. Their response time is about 5 business days but they can help you our very quickly if you have copies of the appropriate documentation. After I wrote them an email explaining my case they responded with a request for a copy of the cashed check from board of appeals (which I had from my bank) and the appeal form. I emailed them the copies I had and presto! The surcharageable offense was cleared from my RMV record. This process saved me the considerable headache of having to see an RMV hearings officer in person, so it seems so long as one has copies of the appropriate documentation you can skip the lines at the RMV.

            2. jik Post author

              I’m confused. Are you saying that the RMV removed the offense from your record before your appeals hearing?

              I don’t understand why they would do that. I was under the impression that the offense is supposed to stay on you record unless and until your appeal is sustained.

              What happens if your appeal is denied? Does the offense go back onto your RMV record?

            3. Andrew Wagner

              Hi Jonathan,

              Yes. The RMV removed the offense from my record with only the proof that I had submitted an appeal. It seems that the standard is that the offense can be removed from your record while it is being appealed. I’m happy to forward you the email chain I had with the RMV, and I independently verified that the charge was removed from my record. If my appeal is denied I presume the charge will go back on my record, however, I’ve never had anything like this happen to me before so I don’t actually know for sure. My advise remains the same, email or otherwise contact an RMV hearings officer with your appeal directly after submitting it to the appeals board, they may remove the charge from your record while your appeal is being processed and if not you’re no worse off.

              Cheers,

              Andrew

  13. Milo

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

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

    Reply
    1. jik Post author

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

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

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

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

      Reply
    2. Lisa Babs

      Hi Milo,

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

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

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

      Reply
    3. Chris

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

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

      Reply
  14. Seekay

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

    Reply
    1. jik Post author

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

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

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

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

      Reply
      1. Seekay

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

        Reply
        1. jik Post author

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

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

          Reply
  15. Kimheang SOK

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

    Reply
  16. Shahenaz

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

    Reply
    1. jik Post author

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

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

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

      Reply
  17. wave

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

    Reply
    1. jik Post author

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

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

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

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

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

      Reply
      1. Anonymous

        Just wanted to post an update. I appealed the surcharge and as a result after the hearing the surcharge was removed (I was found not more that 50% at fault)

        Reply
  18. Sw123

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

    Reply
    1. jik Post author

      If you have reason to believe that the other driver is committing insurance fraud, i.e., gaming the system to claim more damage to his vehicle than actually occurred (Did you take photos said tof the accident at the scene? Always a good idea!), then you should notify your insurance company and the Division of Insurance (http://www.mass.gov/ocabr/insurance/consumer-safety/consumer-alerts/identifying-and-reporting-insurance-fraud.html) immediately.

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

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

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

      Reply
  19. R

    Hello,

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

    Thank you

    Reply
    1. jik Post author

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

      Reply
  20. 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!

    Reply
    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.

      Reply
      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?

        Reply
        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.

          Reply
          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..

            Reply
            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.

  21. 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.

    Reply
    1. jik Post author

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

      Reply

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