Opinion
16-P-417
03-24-2017
Zachary A. PHILLIPS v. BOARD OF APPEAL OF the DIVISION OF INSURANCE.
AMENDED MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In 2010, the Registrar of Motor Vehicles (registrar) revoked the driver's license of the plaintiff, Zachary A. Phillips, on the ground that he posed an "immediate threat" to public safety. The board of appeal of the Division of Insurance (board) affirmed that decision. In 2014, Phillips sought to have his license reinstated. The registrar declined to do so, and after holding an evidentiary hearing, the board again affirmed Phillips's indefinite suspension. On Phillips's appeal pursuant to G. L. c. 30A, § 14, a Superior Court judge affirmed the board's decision. On Phillips's appeal to this court, we affirm the judgment.
Background . In 2008, Phillips and his classmate, Mark Frattaroli, were students at Lawrence Academy in Groton. On the night of September 27, 2008, Phillips was asked to leave the school's homecoming dance, and he and Frattaroli left in a car owned by Frattaroli's mother. As discussed below, although there was an initial dispute as to which of the boys was driving, that Phillips was the driver is no longer in serious doubt. Phillips was sixteen years old at the time, and he had held a junior operator's license for only nineteen days. His driving with Frattaroli in the car was itself a violation of the terms of that license. The weather that night was rainy and foggy, yet Phillips drove along the streets of Groton at extreme speed, estimated by an accident reconstruction expert to be between eighty-one and eighty-six miles per hour in a thirty-five miles per hour zone. After Phillips apparently lost control of the car as it rounded a curve, the car crashed into a tree and rolled over. Frattaroli was killed and Phillips suffered serious injuries.
Frattaroli and Phillips had to be extracted from the mangled and overturned car by emergency workers, and there was some initial confusion among responding personnel about who was driving. With the "who was driving" issue open, Phillips was not initially criminally charged, nor was his license revoked. In April of 2009, Phillips took a crash prevention course. Despite this, he had a second motor vehicle accident later that year while driving with his younger sister. In that accident, for which Phillips was found responsible and incurred a significant insurance surcharge, the car skidded off the road and ended up in a ditch.
Further review and investigation of the September, 2008, accident continued. After deoxyribonucleic acid testing of the blood on the driver's side of the car pointed to Phillips as the driver, the Groton police requested that his license be revoked based on an immediate threat. The registrar did so on June 24, 2010. In addition, for his role in the 2008 crash, the Commonwealth charged Phillips with delinquency based on vehicular homicide and operating to endanger.
On January 6, 2011, after the delinquency trial had commenced, Phillips pleaded to sufficient facts, and the Juvenile Court judge continued the case without a finding until his nineteenth birthday (which fell on or about February 18, 2011). Phillips was placed on probation, and his driver's license was suspended, for that brief interim period. He completed a specified safe driving course that was required as a condition of probation, and the delinquency case was dismissed. Had he been found delinquent as charged, he would have faced a mandatory fifteen-year license suspension.
A transcript of the plea colloquy is not before us. However, we note that in a summary judgment ruling in a subsequent civil action, a Superior Court judge stated that during the Juvenile Court plea colloquy, "Phillips stated that he had no recollection of the accident, but that ‘everything indicates that yes, [he] did it. There's no doubt about that.’ "
Phillips was found responsible for at least two civil infractions related to the September, 2008, incident: speeding and a lane violation. As a result, his license was independently suspended for ninety days, and he was required to take certain additional safe driving courses as a condition of reinstatement. That suspension is not at issue in this appeal.
Despite the plea bargain and the significant mounting evidence demonstrating that he was the driver during the September, 2008, accident, Phillips took the position in various other forums that Frattaroli had been driving. For example, in the context of a dispute related to insurance coverage, Phillips swore out an affidavit stating that he was only a passenger in the car and that "Frattaroli was responsible for the accident that took his life." That dispute resulted in civil litigation that ended in January of 2014, with a jury finding that Phillips had been the driver.
As Phillips acknowledged during the board hearing, an emergency medical technician testified in a prior proceeding that Phillips was "cut out of a seatbelt that was behind the steering wheel in the driver's seat." It is not clear from the record before us whether the prior proceeding was the truncated delinquency proceeding or the insurance litigation discussed below.
A special verdict slip indicated "that at least 12 of the 14 jurors agreed with th[at] finding." This litigation was brought by an insurance company against Phillips and Frattaroli's estate to determine which insurance policy applied. Frattaroli's estate and Phillips also brought claims against each other, although it is not clear whether this was as cross claims in the insurer's litigation or separately.
Subsequently, Phillips pressed for a new hearing to have his license reinstated, which culminated in an evidentiary hearing before the board on June 18, 2014. In arguing that the indefinite suspension should continue, the attorney representing the registrar focused on Phillips's refusal to accept responsibility for the September, 2008, crash. For example, he argued that there were concerns "as to [Phillips's] callous disregard for what had happened, as [to] his lack of judgment and his lack of remorse." In response, Phillips's attorney sought to portray his client's claims that Frattaroli had been the driver as being in the past. He also sought to explain why Phillips had a reasonable basis for such claims at the time he made them. However, when pressed by the board on whether he "still today [was] saying [he wasn't] driving in that car," Phillips himself responded, "I maintain that, yes." Further facts regarding the board proceedings are reserved for later discussion.
Phillips submitted evidence of the safe driving courses he had taken and of various positive developments in his life (such as certain volunteer work).
The board declined to reinstate Phillips's license, and it subsequently issued a ten-page, single-spaced "Statement of Reasons for Decision." It concluded that "Phillips is a danger to public safety on the road" and that "[k]eeping him off the road until he is more mature will protect the public."
Discussion . The principal thrust of Phillips's appeal is that instead of focusing on whether he remained an unsafe driver, the board proceeding focused more on punishing him for his role in causing Frattaroli's death. See Wall v. Registrar of Motor Vehicles , 329 Mass. 70, 73 (1952) (registrar's discretion to revoke or suspend driver's license cannot be exercised "without regard to the purpose for which his authority to revoke or suspend is granted"). The Superior Court judge agreed with Phillips up to a point, observing that "[t]he tenor of the hearing as reflected in the transcript has given me pause since at times the transcript reads like a sentencing hearing." Nevertheless, the judge found that the board did not abuse its discretion and judgment entered affirming the board's decision. For the reasons set forth below, while we agree with the judge's observation about the tenor of the proceedings, we affirm the judgment.
Phillips also argues that, as a matter of law, a suspension pursuant to G. L. c. 90, § 22(a ), must be based on a recent violation and that the registrar cannot impose a long-term, indefinite suspension pursuant to this section. We discern no such limitation in the statute. Longo v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds , 356 Mass. 24, 26-27 (1969), which interpreted an earlier version of the statute, is not controlling.
We begin by noting two aspects of the proceeding that potentially provide Phillips with the most support for his argument that the board hearing became about punishment. The first involves two letters in the administrative record that document the role that assistant district attorneys played in the board proceeding. One is a four-page, single-spaced letter from the chief of homicides/chief counsel of the Middlesex district attorney's office to the registrar, copied to Frattaroli's family, urging the registrar to "continue the suspension of Phillips'[s] license for as long as lawfully permitted." The letter concludes by requesting notice of any hearing—including notice to the Frattaroli family—"so that we may send a representative (if permitted by law and procedure) to make a presentation and answer any questions the hearing officer may have." The other letter was written by the assistant district attorney who had handled the Juvenile Court case to the judge in that case. This letter expressed outrage at Phillips's declining to accept responsibility for the September, 2008, accident after the judge had dismissed the case. It describes Phillips's conduct as "[n]ot only ... an affront to the juvenile justice system, but [also as] underscor[ing] the position of the Middlesex District Attorney's Office at the time of the plea that a delinquent finding would have been the more appropriate and just disposition." The letter was copied to both the registrar and to Frattaroli's family.
The second aspect of the proceedings that provides potential support for Phillips's argument is the fact that Frattaroli's sister did in fact testify at the hearing, delivering a poignant statement on behalf of the family as to why Phillips's license should not be reinstated. Although her testimony touched on why she believed Phillips remained a dangerous driver, it focused even more on the need to impose punishment on him. Even though no one at the hearing referred to the sister's testimony as a victim impact statement, it largely played such a role.
In its brief, the board argues that the sister's testimony constituted a proper victim impact statement pursuant to G. L. c. 258B, § 3(p ). At oral argument, the board distanced itself from this contention. In any event, we neither accept nor rely on such an argument.
There was nothing per se improper about the district attorney's office contacting the registrar or about a member of Frattaroli's family testifying before the board. Indeed, to the extent that either had information that bore on safety concerns that Phillips posed, their role in the board proceedings was appropriate. To the extent that Phillips argues that such evidence was improperly admitted because it crossed the line and amounted to a call for punishment, he did not raise such objections at the hearing. He therefore has waived this argument. See Weinberg v. Board of Registration in Med ., 443 Mass. 679, 691 (2005).
For example, the sister testified, without objection, that Phillips eventually was expelled from Lawrence Academy for urinating on another student.
Nor did Phillips object to the occasional intemperance exhibited by the registrar's counsel who handled the board hearing.
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More substantively, we are unpersuaded by Phillips's contention that the board strayed from its job of determining whether he was a safe driver and that its conclusion that he was unsafe was pretextual. We note, for example, that the board's decision does not mention either the office of the district attorney letters or the sister's testimony, and—citing to Powers v. Commonwealth , 426 Mass. 534, 538 (1998) —the board accurately highlights that license revocation "is a non-punitive sanction designed to protect public safety." To be sure, the decision does refer to Phillips's immaturity and his "attitude," and comments made by the board's chairman during the proceedings focus on Phillips's failure to demonstrate "accountability." However, such considerations do not fall within the exclusive purview of punishment, and we see no impropriety in the board's relying on them. Although Phillips seeks to portray the determination of whether someone is a safe driver as confined to issues of skill and knowledge, we agree with the board's perspective that issues of maturity and judgment also play an important role (especially with regard to young drivers). The board's characterization of the choices Phillips made on September 27, 2008, as "extremely reckless," if anything, underplays their egregiousness. In addition, Phillips was found responsible for another accident the following year. Given Phillips's subsequent conduct, including his failure to accept responsibility for his actions, the board acted well within its powers in determining that he remained a potential menace on the roads.
Judgment affirmed.