Opinion
14-P-1733
11-04-2015
KIMBERLIE S. WHEELAND v. COMMERCE INSURANCE COMPANY & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Kimberlie S. Wheeland, appeals from a judgment of the Superior Court which affirmed an order from the Board of Appeal on Motor Vehicle Liability Policies and Bonds (board). On appeal, Wheeland claims the judge erred by exceeding her authority and basing her decision to uphold the board's findings on evidence not contained in the record. We affirm.
Our review of a Superior Court decision on an appeal of a decision of the board under G. L. c. 175, § 113P, is extremely limited. We conduct de novo review with respect to errors of law, but we do not examine the weight or sufficiency of the evidence before the board or the court "unless there is absolutely 'no basis in fact' to support th[e] decision." Nercessian v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 46 Mass. App. Ct. 766, 775 (1999) (citation omitted).
In support of her claim, Wheeland asserts that the judge improperly upheld the board's determination that she did not overcome the presumption of fault against her where the board lacked substantial evidence supporting its decision. We disagree. Because Wheeland at least partially attributed the accident to solar glare, the hearing officer was entitled to find that Wheeland recognized that the sun posed a risk for which she took either no or inadequate measures to compensate. During the hearing, Wheeland specifically stated that when she approached the other vehicle involved in the crash, she was "blinded by the low, still rising sun" that was "coming right into [her] eyes." The hearing officer was therefore well within his prerogative in finding that Wheeland "failed to exercise due care in the operation and control" of her vehicle and "should have compensated for solar glare."
Wheeland next asserts that the judge improperly inferred additional facts in her decision that were not supported by the administrative record or the board's findings. Although these specific facts indeed do not appear in the record, whether or not the judge's inferences were permissible is irrelevant. The judge properly affirmed the board's determination because the hearing officer based his findings on sufficient evidence and testimony found in the record. These additional inferences were harmless and unnecessary, as the hearing officer could have and did properly find, without specifically identifying potential alternatives Wheeland might have otherwise pursued, that she was at fault for her failure to use due care and compensate for solar glare.
More specifically, the judge assumed that the plaintiff's failure to exercise due care resulted from her failure to slow down and attributed her failure to counteract solar glare to a failure to use sunglasses or the car's visor.
As a matter of policy, Wheeland also claims that, by not distinguishing between illegally and legally parked vehicles, the board essentially transformed the presumption of fault under 211 Code Mass. Regs. § 74.04(01) (1995) into a strict liability standard, and not a rebuttable presumption. A plain reading of the standard of fault, however, indicates that the legal status of a parked car is immaterial for the purposes of rebutting the presumption of fault.
Title 211 Code Mass. Regs. § 74.04(01) (1995) provides as follows:
"Collision with a Lawfully or Unlawfully Parked Vehicle. The operator of a vehicle subject to the Safe Driver Insurance Plan shall be presumed to be more than 50% at fault when operating a vehicle which is in collision with a lawfully or unlawfully parked vehicle."Such a presumption "shall be considered determinative unless and until the operator overcomes the presumption by producing sufficient evidence at an initial review or hearing." 211 Code Mass. Regs. § 74.03 (1995). The subsequent (and still current) 2013 version of these regulations, although not applicable to the 2011 accident in this case, is to substantively similar effect.
Wheeland relies on the opinion of the Superior Court judge in Goggin v. Commerce Ins. Co., 9 Mass. L. Rptr. 370, 372 (1998), where the plaintiff successfully rebutted the presumption of fault in an accident involving an illegally parked vehicle. Because Goggin is neither precedential nor suitably analogous to this case, as explained by the judge, we reject this argument.
The judge therefore did not err, because the hearing officer's decision was based on facts in the record and was not arbitrary and capricious, an abuse of discretion, unsupported by substantial evidence, or otherwise not in accordance with the law. See G. L. c. 30A, § 14(7). As such, the hearing officer properly found that Wheeland failed to overcome the applicable presumption of fault and Wheeland failed to demonstrate that the Superior Court judge committed a legal error in upholding the board's decision. See Nercessian v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, supra.
Judgment affirmed.
By the Court (Cohen, Meade & Agnes, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: November 4, 2015.