Opinion
15-P-335
02-02-2016
JOHN F. MARKUNS 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 appeals from a Superior Court judgment that affirmed a decision of the Board of Appeal on Motor Vehicle Liability Policies and Bonds (board) which upheld the imposition of an automobile accident surcharge by his insurer, Commerce Insurance Company. We affirm.
The plaintiff and a Commerce representative testified at a hearing before the board. In its decision upholding the surcharge, the board wrote, in part:
"iii) appellant collided with the rear section of another vehicle;
"iv) appellant bore the duty to ensure that there was a reasonable and prudent distance between appellant's vehicle and any other vehicle so that appellant might safely come to a stop under the prevailing road conditions and the speed at which appellant was travelling. 720 C.M.R. 9.06(7), (9); but did so with insufficient attention being
paid to the actions of vehicles ahead to allow for controlled stopping without impact.
"v) appellant testified he was traveling 35 mph and 60 to 70 feet behind the claimant vehicle on Mass. Ave. in N. Andover. The time was 5:45 pm and the weather was clear. The appellant stated the claimant vehicle stopped and simultaneously activated their left directional. Appellant braked but was unable to come to a controlled stop without striking the rear of the claimant vehicle."
The board found that the totality of the evidence supported the application of the presumption set out in 211 Code Mass. Regs. § 74.04(3) (1995) (presumption no. 3), as then in effect. This presumption provides:
"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 the rear section of another vehicle."The presumption is determinative unless the operator in question presents sufficient evidence to overcome it. See Yazbek v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 41 Mass. App. Ct. 915, 916 (1996) ("[T]he wording of the regulation itself requires not merely the introduction of some contradictory evidence in order to overcome the presumption, but rather that a 'showing' contrary to the presumption be 'demonstrated'"). The board concluded that the plaintiff "failed to exercise due care in the control and operation of [his] vehicle because [he] was traveling forward without sufficient attention being paid to the actions of the vehicles ahead to allow for controlled stopping without striking the rear of the other vehicle" and that he did not overcome the presumption.
We review the decision of the Superior Court judge for any error of law. Nercessian v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 46 Mass. App. Ct. 766, 775 (1999). The plaintiff argues that the judge erred in not concluding that the board should have credited his testimony because it was unrebutted. The law is to the contrary. "[T]he board [is] not bound to accept the testimony on behalf of" the plaintiff even if it were unrebutted. Cohen v. Board of Registration in Pharmacy, 350 Mass. 246, 251 (1966).
The plaintiff also asserted that the board did, in fact, credit his testimony. The board's decision merely recites the plaintiff's version of events.
The board found, with support in the record, that the plaintiff did not pay sufficient attention to the vehicle in front of him. This finding supported the application of presumption no. 3 that the plaintiff was more than fifty percent at fault. See Yazbek v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 41 Mass. App. Ct. at 915-916.
The plaintiff also argues that the board should have applied presumption no. 7 against the driver of the other vehicle and erred in failing to find the extent of that driver's responsibility for the accident. However, presumption no. 7 appears inapplicable as it applies to one turning or changing lanes without signaling, whereas the plaintiff's own testimony was that the other vehicle stopped and signaled. At any rate, the issue before the board was the plaintiff's responsibility; once the board found, based on presumption no. 3 and the facts, that the plaintiff was more than fifty percent at fault, the board did not need to go any further. The judge did not err in affirming the board's decision.
Presumption no. 7, as then in effect, assigns fault as follows: "(07) Failure to Signal. The operator of a vehicle . . . shall be presumed to be more than 50% at fault when operating a vehicle which is in collision while failing to signal as required by law before turning or changing lanes." 211 Code Mass. Regs. § 74.04 (1995) ("Situations in Which Fault is Presumed to be More Than 50%").
Judgment affirmed.
By the Court (Grainger, Rubin & Milkey, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 2, 2016.