Opinion
13-P-825
10-31-2014
JAMES M. COFFIN v. BOARD OF APPEAL ON MOTOR VEHICLE LIABILITY POLICIES AND BONDS.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
James Coffin appeals a Superior Court judgment that affirmed a decision of the Board of Appeal on Motor Vehicle Liability Policy and Bonds (board) that upheld a surcharge assessed against Coffin by his insurance company. We vacate and remand.
Discussion. Our review here is limited by G. L. c. 175, § 113P.
"[T]he Superior Court's decision on appeal under § 113P is not exempt from review for error of law by a panel of the Appeals Court[.] . . . [A]ny such asserted error will be 'subject to de novo judicial review' by this court. That review cannot, however, extend to examining the weight of the evidence to determine whether the Superior Court's decision . . . was justified, unless there is absolutely 'no basis in fact' to support that decision."Nercessian v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 46 Mass. App. Ct. 766, 775 (1999) (citations omitted).
As a result, we will only address Coffin's argument concerning errors of law, which we review de novo. See ibid. Coffin asserts that the Superior Court and the board committed errors of law. We agree. The board committed a legal error when it applied the presumption that "[t]he operator of a vehicle subject to the Safe Driver Insurance Plan shall be presumed to be more than [fifty percent] at fault when operating a vehicle which is in a collision with a lawfully or unlawfully parked vehicle," without first finding that Coffin was operating his vehicle at the time of the alleged collision.
Coffin also argued the board's decision was not supported by substantial evidence. A determination as to whether the board's decision is supported by substantial evidence is "beyond the scope of our review." Nercessian, supra at 776. However, we do note that while not dispositive in the case, the hearing officer did make the following findings of fact that were not supported by any evidence: Coffin "left the keys in the ignition with the doors [to his car] unlocked" and a "Police Officer . . . gave [Coffin] a ride to the station where his vehicle had been towed by police order." There was no testimony that the keys were in the ignition when Coffin left his vehicle. The only statement on the record concerning the keys was made by Coffin's attorney and the statement simply said that Coffin "had the keys in the vehicle." The hearing officer is the one that said the "keys were in the ignition." There was no evidence concerning where the police took Coffin after "a police cruiser stopped and gave [Coffin] a ride." The only statement about how Coffin found his car was included in the insurance report and indicated that Coffin "call[ed] multiple tow yards [and] found that the vehicle had been towed by police authority based on the [car] being abandoned on the side of the road."
The Superior Court erred in failing to address the error of law inherent in the board's decision and instead affirmed based on their weighing of the evidence and making a finding of fact that the board had not. See Doherty v. Retirement Bd. of Medford, 425 Mass. 130, 135 (1997), quoting Pyramid Co. v. Architectural Barriers Bd., 403 Mass. 126, 130 (1988) ("Under the substantial evidence test, a reviewing court is not empowered to make a de novo determination of the facts, to make different credibility choices, or to draw different inferences from the facts found").
Coffin appealed his insurance company's application of a surcharge to the board. See 211 Code of Mass. Regs. § 88.03 (2005). The board then conducted a hearing. The insurer is "responsible for submitting at the hearing all documented information on which any determination at issue was based;" and "may present and establish all relevant facts and circumstances by oral testimony, documentary evidence or other evidence." 211 Code of Mass. Regs. § 88.09 (7) (b) (2005). The burden of proof at the hearing is described as follows: "[t]he presumptions raised as to an operator being more than [fifty percent] at fault, in accordance with 211 [Code Mass. Regs §] 74.04, shall be considered determinative unless and until the operator overcomes the presumption by producing sufficient evidence at an initial review or hearing held in accordance with the rules of the [b]oard." 211 Code of Mass. Regs § 88.09 (3) (2005).
The board's statutory mandate is to: either "deny the appeal" or "order the insurer to make the appropriate adjustment to the plan." G L. c. 175, § 113P. The appeal "shall" be denied, "if, after a hearing, the board finds that the application of the safe driver insurance plan was in accordance with the standards promulgated by the board and the provision of the safe driver insurance plan established by the commissioner." Ibid. The board "shall order the insurer to make the appropriate premium adjustment," "[i]f the board finds that the insurer's application of the safe driver insurance plan was not in accordance with said standards and provisions." Ibid. The safe drivers insurance plan provides that at fault accidents are surchargeable incidents and an at fault accident is when "the Involved Operator was more than [fifty percent] at fault, as determined by the application of the Standards of Fault of the Board of Appeal." 211 Code of Mass. Regs. § 134.03 (2008). The presumption at issue here is one of the standards of fault of the board of appeal. See 211 Code of Mass. Regs. § 74.04(01) (1995).
Of course this burden only applies when the presumption is properly applied. The presumption does not apply here because the board never made a finding that Coffin was the operator.
The paperwork the insurer submitted did not provide affirmative evidence that Coffin was the operator at the time of the alleged accident, but did contain Coffin's statement that he did not report the car stolen because the "police advised him that if he fraudulently reported the vehicle stolen he could do [twenty] years in jail." The police report the insurer submitted indicates the "operator" of Coffin's car at the time of the crash was an "unknown operator, 2011." The police report did not identify any witnesses to the alleged accident. Coffin's statement to the insurance company, which the insurer submitted and read into the record, indicated that he was not operating the car at the time of the alleged accident.,See Prescott v. Board of Appeal on Motor Vehicle Liab. Policies and Bonds, 42 Mass. App. Ct. 36, 38 n.4 (1997) ("[D]isbelief of [a statement] is not affirmative evidence").
The insurer did not read this statement into the record and the hearing officer did not comment on this statement in her findings of fact.
Coffin's statement to the insurance company said:
"On the evening . . . I attended a family wedding, and when I went to leave I went to where my car was parked and my car was not there. So I started walking to a road where I could hitch hike a ride home. I got a ride part of the way. A police cruiser stopped and gave me a ride. I did not operate any vehicle from the time I left the wedding to the time I left the police. I was not aware of my vehicle being involved in any accident during that time."
On appeal, the board makes the unsupported contention that there is evidence that the police found Coffin in the vicinity of the accident. There was no finding of fact concerning where the police "found" Coffin. Nor could there be because there was no evidence as to where Coffin was when a police officer "stopped and gave [him] a ride."
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The board was required to make a finding that Coffin was the operator before applying the presumption and that finding had to be supported by "substantial evidence." Prescott v. Board of Appeal on Motor Vehicle Liab. Policies and Bonds, supra at 39 ("[T]here first must be a finding that the plaintiff failed to stop or failed to proceed with caution, before any presumption takes effect. There was no 'substantial evidence' to show such a failure"). Cf. Merisme v. Board of Appeals on Motor Vehicle Liab. Policies and Bonds, 27 Mass. App. Ct. 470, 473 & n.8 (1989) (noting that "because the particular [type of] intersection" where the accident occurred was not included in the explanation of when the presumption applied, it was an error of law to apply the presumption).
Instead, here, the board determined that the presumption was appropriately applied to Coffin because he "failed to provide sufficient evidence to either establish another individual was the operator of the vehicle or sufficient to identify that individual." This was error. The board must first determine who the operator was based on substantial evidence (it is not Coffin's initial burden to provide "sufficient evidence" that he was not the operator). This finding is required before the presumption can be applied.
Accordingly, we vacate the Superior Court's judgment affirming the board's decision and a new judgment shall enter vacating the board's decision and remanding the matter to the board for further proceedings consistent with this memorandum and order.
So ordered.
By the Court (Trainor, Rubin & Sullivan, JJ.),
Clerk Entered: October 31, 2014.