Appealing a Surcharge for an At-Fault Auto Accident

By Richard McGrath, CIC, LIA

An auto accident can be doubly damaging. First, you have to deal with any personal injury and damage to your car; then, if you are at fault, you have to deal with the damage to your driving record.

If you are found to be at fault, you can expect a surcharge that will significantly increase your insurance premiums. Fortunately, there is a process for appealing the surcharge, although an appeal will be futile unless you can make a valid argument demonstrating that you are not at least 50 percent at fault.

The Safe Driver Insurance Plan

In the Commonwealth of Massachusetts, surcharges are levied based on a Safe Driver Insurance Plan, which was created to encourage safe driving by requiring high-risk drivers to pay a greater share of insurance costs. Surcharges are applied for at-fault accidents and traffic violations.

Under the Safe Driver Insurance Plan, a surcharge will be added to your premiums after an auto accident if your insurance company determines you are more than 50 percent at-fault and pays out more than $500 on the claim. You can appeal if you disagree.

However, you will be presumed to be more than 50 percent at fault if you fall into one of the following “Standard of Fault” categories: colliding with a parked vehicle or with the rear-end of another vehicle; having an accident while driving out of your lane, on the wrong side of the road or in the wrong direction (e.g., the wrong way on a one-way street or highway); colliding when entering a main road from a secondary road, merging onto a highway or rotary, or colliding at a “T” intersection; colliding when arriving at an intersection after the other vehicle, or if arriving at the intersection at the same time as the other vehicle and failing to allow the vehicle on the right to proceed first.

The driver will also be presumed to be more than 50 percent at fault when failing to obey driving rules and regulations, such as failing to signal or failing to proceed with caution from a traffic control sign or signal.

Other “Standard of Fault” categories include colliding while backing up, while making a left turn or U-turn across the path of another moving vehicle, or while pulling out of a parking space, parking lot, alley or driveway. You’ll also be considered to be more than 50 percent at fault if a collision results when you have opened or are opening a door on your vehicle, or when failing to yield the right of way to an emergency vehicle.

You will be presumed at fault in a single-vehicle collision or if your vehicle is unattended and rolls, resulting in an accident, or if you are not in a collision, but your actions cause an accident involving one or more other vehicles.

How to Appeal

In many cases, your chances of winning an appeal will be slim, while in some cases circumstances may make it difficult to determine whether you were more than 50 percent at fault in an accident.

Weather conditions may also play a factor. If, for example, icy conditions cause an accident when you were driving cautiously and at a reasonable speed, you may be able to avoid a surcharge.

If you believe that you are not more than 50 percent at-fault for an accident in which you received a surcharge, you may appeal to the Division of Insurance Board of Appeal. If you appeal, you will be entitled to a hearing before an impartial hearing officer.

If your insurance company plans to apply a surcharge to your premiums, you should receive a “notice of surcharge” in the mail. Your surcharge appeal form will be on the reverse side of the notice, so do not discard this notice.

If you do not receive a notice in the mail, contact your insurance agent or the insurance carrier and ask for a notice. Once you receive a notice, review it carefully to ensure that all information on it is accurate. If any information is inaccurate contact the insurance carrier and ask for corrections to be made.

You should have an accurate notice in hand before filing an appeal. However, once you receive your notice, you have 30 days to fill out and file the surcharge appeal form. If you are unable to file within 30 days, you will need to contact the Merit Rating Board within the Board of Appeal and request a late appeal. The Board of Appeal must receive your late appeal within 30 days of your policy renewal.

When you submit your appeal, you will need to include a non-refundable fee of $50, which is payable by check or money order. Your canceled check will serve as your receipt.

The Board of Appeal will mail you a notice with information about your hearing about three weeks before your hearing date. Your hearing may be scheduled in Boston, Brockton, Peabody, Plymouth, Somerville, Springfield, Waltham or Worcester.

At the Hearing

You can appear in person at your hearing, submit a written statement or send a representative to appear on your behalf. Whichever option you choose, you will need to bring or send copies of all relevant information, including any documents or photos that you want the hearing officer to consider.

If you decide to submit a written statement – by mail or fax, or through a representative appearing on your behalf – the board must receive it at least five days before your hearing. In addition to including all relevant documents and photos, you must sign the notice confirming that your statement is truthful and that you are waiving your right to a personal hearing.  Any materials you submit will not be returned, so be certain to make copies.

Your hearing, which will be informal and public, will last about a half hour or less. It will be recorded by the hearing officer. You may bring a witness or witness statement to support your case.

After the hearing, the hearing officer will take your appeal under advisement. To win your appeal and have the surcharge removed from your record, your testimony and any evidence presented must overcome the presumption of fault. The law says the presumption of fault is “determinative unless and until the operator overcomes the presumption by producing sufficient evidence at an initial review or hearing.”

The final decision will be mailed to you within two to four weeks. If the decision is marked “vacate,” your surcharge will be removed. If it is marked “upheld,” it will not. The Board of Appeal will contact the Merit Rating Board and your insurance company to update your driving history record.

If you disagree with the decision and believe the Board of Appeal decision is incorrect, you may appeal further to your county’s Superior Court or in Boston Suffolk County Court. You have 30 days from receipt of the decision to make this second appeal. You will need to enclose a certified copy of the “memorandum of finding and order,” which you can obtain from the Board of Appeal for a $13 fee.

Keep in mind, though, that as difficult as it may be to have a surcharge dropped by the Board of Appeal, it will be even more difficult to win in Superior Court, so only pursue a second appeal if you believe you have a very sound argument and evidence to back it up.


Richard A. McGrath, CIC, LIA is President and CEO of McGrath Insurance Group, Inc. of Sturbridge, Mass. He can be reached at rmcgrath@mcgrathinsurance.com.

This article is written for informational purposes only and should not be construed as providing legal advice.

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