Appeal of Surcharge Points

    Posted by MAIA on Jun 7, 2019 12:01:00 AM

    QUESTION

    This question was answered based upon current rules, regulations & statutes in effect on May 07, 2019

    We have an insured who was surcharged for an accident and at the time liability was determined I questioned it as I thought 50/50 was appropriate for this situation but the adjuster did not agree. The insured appealed the surcharge and lost. He then wrote a letter to the Board of Appeal explaining why he believes the decision was unfair. He received a response from them that the hearing officer did nothing wrong. The insured sent me copies of the appeal decision letter and the letter from the appeal board. The appeal decision letter has inaccuracies in it as to how the accident occurred based on the insured's description. I have spoken to a claim manager at the company looking to change liability to 50/50 and revoke the surcharge. He consulted with other management and underwriting and was told since the appeal already happened, the surcharge cannot be rescinded. Any thoughts?

    ANSWER

    Kathy Cormier:   I reached out to MRB and got this:

    This information can be found at https://www.mass.gov/service-details/frequently-asked-questions-about-appealing-an-insurers-at-fault-accident.  

    With respect to the appeal of the Board of Appeal’s decision:

    1. Can I appeal the Board of Appeals' decision if it is unfavorable?

      If you disagree with the determination of the Board of Appeal, you can appeal the decision to your county's Superior Court or in (Boston) Suffolk County Superior Court. In accordance with M.G.L. c. 30A, § 14 and Superior Court Standing Order 1-96, you must file this appeal within 30 days of your receipt of the decision. Enclose to Superior Court:a certified copy of the Memorandum of Finding and Order, which can be obtained from the Board of Appeal for a fee of $20.00 and your complaint against the Board of Appeal.

    M.G.L. c. 30A, § 14

    Section 14: Judicial review

      Section 14. Except so far as any provision of law expressly precludes judicial review, any person or appointing authority aggrieved by a final decision of any agency in an adjudicatory proceeding, whether such decision is affirmative or negative in form, shall be entitled to a judicial review thereof, as follows:--

      Where a statutory form of judicial review or appeal is provided such statutory form shall govern in all respects, except as to standards for review. The standards for review shall be those set forth in paragraph (7) of this section, except so far as statutes provide for review by trial de novo. Insofar as the statutory form of judicial review or appeal is silent as to procedures provided in this section, the provisions of this section shall govern such procedures.

      Where no statutory form of judicial review or appeal is provided, judicial review shall be obtained by means of a civil action, as follows:

      (1) Proceedings for judicial review of an agency decision shall be instituted in the superior court for the county (a) where the plaintiffs or any of them reside or have their principal place of business within the commonwealth, or (b) where the agency has its principal office, or (c) of Suffolk. The court may grant a change of venue upon good cause shown. The action shall, except as otherwise provided by law, be commenced in the court within thirty days after receipt of notice of the final decision of the agency or if a petition for rehearing has been timely filed with the agency, within thirty days after receipt of notice of agency denial of such petition for rehearing. Upon application made within the thirty-day period or any extension thereof, the court may for good cause shown extend the time.

      (2) Service shall be made upon the agency and each party to the agency proceeding in accordance with the Massachusetts Rules of Civil Procedure governing service of process. For the purpose of such service the agency upon request shall certify to the plaintiff the names and addresses of all such parties as disclosed by its records, and service upon parties so certified shall be sufficient. All parties to the proceeding before the agency shall have the right to intervene in the proceeding for review. The court may in its discretion permit other interested persons to intervene.

    [Paragraph (3) of the second paragraph following the introductory paragraph effective until October 27, 2015. For text effective October 27, 2015, see below.]

      (3) The commencement of an action shall not operate as a stay of enforcement of the agency decision, but the agency may stay enforcement, and the reviewing court may order a stay upon such terms as it considers proper.

    [Paragraph (3) of the second paragraph following the introductory paragraph as amended by 2015, 108, effective October 27, 2015. For text effective until October 27, 2015, see above.]

      (3) The commencement of an action shall not operate as a stay of enforcement of the agency decision, but the agency may stay enforcement, and the reviewing court may order a stay upon such terms as it considers proper. Notwithstanding the foregoing, if the sex offender registry board issues a stay of a final classification in a sex offender registry board proceeding, then such stay shall be for not more than 60 days but if a court issues a stay of a final classification in a court appeal held pursuant to section 178M of chapter 6, then such hearing shall be expedited and such stay shall be for not more than 60 days, without written findings and good cause shown.

      (4) The agency shall, by way of answer, file in the court the original or a certified copy of the record of the proceeding under review. The record shall consist of (a) the entire proceedings, or (b) such portions thereof as the agency and the parties may stipulate, or (c) a statement of the case agreed to by the agency and the parties. The expense of preparing the record may be assessed as part of the costs in the case, and the court may, regardless of the outcome of the case, assess any one unreasonably refusing to stipulate to limit the record, for the additional expenses of preparation caused by such refusal. The court may require or permit subsequent corrections or additions to the record when deemed desirable.

      (5) The review shall be conducted by the court without a jury and shall be confined to the record, except that in cases of alleged irregularities in procedure before the agency, not shown in the record, testimony thereon may be taken in the court.

      (6) If application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material to the issues in the case, and that there was good reason for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon such conditions as the court deems proper. The agency may modify its findings and decision by reason of such additional evidence and shall file with the reviewing court, to become part of the record, the additional evidence, together with any modified or new findings or decision.

      (7) The court may affirm the decision of the agency, or remand the matter for further proceedings before the agency; or the court may set aside or modify the decision, or compel any action unlawfully withheld or unreasonably delayed, if it determines that the substantial rights of any party may have been prejudiced because the agency decision is--

      (a) In violation of constitutional provisions; or

      (b) In excess of the statutory authority or jurisdiction of the agency; or

      (c) Based upon an error of law; or

      (d) Made upon unlawful procedure; or

      (e) Unsupported by substantial evidence; or

      (f) Unwarranted by facts found by the court on the record as submitted or as amplified under paragraph (6) of this section, in those instances where the court is constitutionally required to make independent findings of fact; or

      (g) Arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law.

      The court shall make the foregoing determinations upon consideration of the entire record, or such portions of the record as may be cited by the parties. The court shall give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.

      If the court finds that the action of the appointing authority in discharging, removing, suspending, laying off, lowering in rank or compensation or abolishing his position, or the action of the commission confirming the action taken by the appointing authority, was not justified, the employee shall be reinstated in his office or position without loss of compensation and the court shall assess reasonable costs against the employer

    Hope this helps.

    Agent to Irene Morrill:  I hope you are well.  I had emailed MAIA (see my original email ) and received a response from Kathy. After receiving her response, I emailed back advising that the Superior Court Appeal is not an option as it is more than 30 days since the insured received the hearing decision letter – as per my email, the insured had contacted the BOA after receiving the decision and had to wait for a response.  Can you please look at my question and advise if you are think the company’s response is accurate. 

    I know you are very busy. I am in the office today and tomorrow, though we have an office flood seminar from 1-4 tomorrow, then I am out of the office Thursday and Friday, so I don’t know if you will be able to respond by tomorrow. No pressure, just letting you know that if you respond after tomorrow I won’t see it until next week.

    Thank you.

    Irene Morrill:  I do remember this email. Kathy and I discussed  it some.

    Massachusetts is the only state that I know of where there is an “appeals” process.  In the rest of the real world the carriers determine fault by “rules of the  road” and the insured is stuck.

    See an “unofficial” rules of the road given to me by a company adjuster years ago.  

    I know it was longer …but if the insured takes the time to go to their closes superior court perhaps they will be allowed to appeal. 

    Generally the appeal board rescinds surcharges.  In NH when I lose control in the winter it IS my fault and I get points.  In MA one appeals it because of “weather” and often get points rescinded which really makes NO sense.

    I can’t see a carrier changing anything that is “official” now …at the time of claim ….before or as soon as surcharge was sent out perhaps a discussion with claims adjuster could have gotten notice rescinded but now … it appears to be entirely out of carrier’s hands.

    This document is not a legal opinion and should not be relied upon as such. The intent of this document is to provide a general background regarding the topic or topics discussed, not to provide legal advice. Producers and agencies should consult an attorney regarding specific situations and specific questions with respect to the topic or topics covered in this document. Neither the Massachusetts Association of Insurance Agents, Number One Insurance Agency nor any of its employees shall be responsible for any errors or omissions regarding any statements made in this document, nor any errors or omissions regarding any statutes, regulations, court rules, and/or any other government documents cited in this document.

    Topics: 2018

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