Opinion
20-P-205
01-04-2021
LAUREN K. FOLEY v. SAFETY INSURANCE COMPANY & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
Pursuant to G. L. c. 30A, § 15, plaintiff Lauren Foley appeals from a Superior Court judgment affirming a decision of the defendant Board of Appeal on Motor Vehicle Liability Policies and Bonds (board) to uphold a surcharge imposed by defendant Safety Insurance Company following an automobile accident. Foley argues that (1) the board's decision was not supported by substantial evidence because it credited hearsay, including a police officer's report, over Foley's testimony; and (2) Foley's due process rights were violated because the board's hearing officer prejudged the merits of her appeal. We affirm.
Under the "Safe Driver Insurance Plan," insurers shall impose a surcharge on the insurance premium of any driver who is found to be more than fifty percent at fault for an automobile accident. See G. L. c. 175, §§ 113B & 113P; 211 Code Mass. Regs. § 74.00 (2018).
Discussion. 1. Substantial evidence. Foley argues that the board's decision was not supported by substantial evidence because it ignored Foley's testimony and was based "entirely upon uncorroborated hearsay," including the police report. The scope of our review under G. L. c. 175, § 113P, is narrow, and limited to reviewing the Superior Court judge's decision de novo for errors of law. See Nercessian v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 46 Mass. App. Ct. 766, 775-776 (1999). Our review does not "extend to examining the weight of the evidence to determine whether the Superior Court's decision -- either upon its own findings of fact or those of the board adopted by the Superior Court -- was justified, unless there is absolutely 'no basis in fact' to support that decision." Id. at 775.
Based in part on Foley's testimony, the hearing officer found that on March 12, 2019, Foley approached an intersection and stopped at a stop sign. Foley testified that before she drove into the intersection, she saw no vehicle approaching, but after she was in the intersection she saw a pickup truck with a plow attached approaching from her right. Foley accelerated to try to avoid a collision, but was unsuccessful. Foley also presented an affidavit of a bystander opining that the pickup truck was "traveling at an excessive rate of speed." In contrast to Foley's testimony, the police report assigned her a "Driver Contributing Code" for "inattention," and noted that the pickup truck had the right of way.
The hearing officer found that Foley entered the intersection from a stop sign and onto a main road, where her vehicle was struck by the pickup truck, which had the right of way. See 720 Code Mass. Regs. § 9.06(6)(b) (2018). The hearing officer stated that Foley was "obligated to assure that she could complete her cross of both directions of travel on [the main road], without making her vehicle an impediment" to vehicles already on that road, and so she "was obstructing the passage of the other vehicle which had the right of way, thus causing the collision." See Prescott v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 42 Mass. App. Ct. 36, 39 (1997). The hearing officer ruled that based on "the totality of the evidence," Foley was more than fifty percent at fault because she "failed to proceed with caution" as required by 211 Code Mass. Regs. § 74.04(08) (2018).
An operator is presumptively more than fifty percent at fault if "[t]he operator fails to obey a traffic control signal or sign, or fails to proceed with due caution from a traffic control signal or sign, and thereafter collides with another vehicle." 211 Code Mass. Regs. § 74.04(08).
The hearing officer found "unpersuasive" Foley's claim that she had been driving "with caution" and "she felt she had the right of way" because the pickup truck driver "had the 'last chance' to avoid" the crash. He noted, correctly, that "the 'last clear chance doctrine' [has] long since been overturned and [is] inconsistent with the rules and regulations of the roadway." See J.R. Nolan & L.J. Sartorio, Tort Law § 23.10 (3d ed. 2020) (last clear chance doctrine "probably no longer plays a role in the law of negligence in Massachusetts because of the adoption of the rule of comparative negligence"); id. at § 23.6 (describing adoption of rule of comparative negligence pursuant to G. L. c. 231, § 85, St. 1973, c. 1123, § 1).
On the record before us, we cannot say there is "no basis in fact" to support the board's finding. See Nercessian, 46 Mass. App. Ct. at 775. "[I]t is for the [board], not the courts, to weigh the credibility of witnesses and to resolve factual disputes." Merisme v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 27 Mass. App. Ct. 470, 472 (1989), quoting Embers of Salisbury, Inc. v. Alcoholic Beverages Control Comm'n, 401 Mass. 526, 529 (1988). From Foley's own testimony and statements, the board could reasonably have concluded that she failed to use caution when driving into the intersection. Moreover, discrepancies between her testimony and other evidence gave the hearing officer reasons to discredit portions of her testimony. For example, she testified that she first saw the pickup truck when it was "probably about [forty] feet away," but stated on the surcharge notice of appeal form that the pickup truck was "200 [feet]" away. Accordingly, the Superior Court judge did not err in upholding the board's application of the presumption under 211 Code Mass. Regs. § 74.04(08).
To the extent that the hearing officer considered hearsay contained in the police report, we discern no error of law. A board's decision may hinge on hearsay as long as that evidence has "certain 'indicia of reliability and probative value.'" Merisme, 27 Mass. App. Ct. at 475, quoting Embers of Salisbury, Inc., 401 Mass. at 530. Here, the police report was "sufficiently corroborated by other evidence," including Foley's own statements on the operator's report, the surcharge appeal form, and in her testimony, admitting that she did not see the pickup truck when she pulled out from the stop sign and contradicting herself about how far away it was when she did see it. See Merisme, 27 Mass. App. Ct. at 473-475.
2. Due process. Foley argues that the hearing officer was biased and prejudged the case, and therefore violated her due process rights. Because Foley did not raise this issue during the administrative proceedings, the claim is waived on appeal. See Santiago v. Russo, 77 Mass. App. Ct. 612, 618 (2010). Even if this claim were properly before us, we are not persuaded that the hearing officer conducted the hearing in an improper manner. The hearing officer had a duty to "conduct a fair hearing to ensure that the rights of all parties are protected." 801 Code Mass. Regs. § 1.02(10)(f) (2018). As set forth above, inconsistencies between Foley's testimony and other evidence, and her misplaced reliance on the "last clear chance" doctrine, gave the hearing officer reason to question and then discredit her testimony.
Judgment affirmed.
By the Court (Massing, Kinder & Grant, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: January 4, 2021.