MARCEAU v. BOARD OF APPEAL ON MOTOR VEHICLE LIABILITY POLICIES AND BONDS (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Eva M. Marceau's automobile insurance carrier, Liberty Mutual Insurance Company (Liberty Mutual), applied a surcharge to Marceau's insurance premium after concluding that she was at fault for a collision resulting in a claim payment over $ 500. She now appeals from a judgment of the Superior Court affirming the decision of the Board of Appeal on Motor Vehicle Liability Policies and Bonds (board) to uphold the application of the surcharge. We affirm.

Background. On June 22, 2015, Marceau entered a parking lot, believing it to be a thoroughfare. When she realized her mistake, she glanced over her shoulder, did not see anyone, and proceeded to back up. While she was backing up, Marceau's car tapped another car's bumper, resulting in damage to the other car that cost $ 717.88 to repair. Liberty Mutual paid the claim in full.

Discussion. The scope of review on an appeal under G. L. c. 30A, § 14, is narrow. We review the Superior Court judge's decision de novo for errors of law, but we do not examine the weight of evidence unless there is no basis in fact to support the decision. Nercessian v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 46 Mass. App. Ct. 766, 775 (1999).

Marceau argues that the board committed an error of law in its application of 211 Code Mass. Regs. § 134.04(3) (2008).³ Under § 134.04(3), only collisions that require an insurance company to make a “claim payment of more than $ 500 in excess of any applicable deductible” result in a surcharge. Marceau contends that the relevant threshold under her policy is $ 1,500 because she has a deductible of $ 1,000 that applies to some claims.⁴

Marceau's argument fails because Massachusetts law does not permit the application of a deductible to a third-party automobile insurance claim. See G. L. c. 90, § 34O. Under G. L. c. 90, § 34O, deductibles are available for certain optional coverages that apply to the insured's own property. However, in the event of “destruction of property of others,” G. L. c. 90, § 34O, requires every automobile insurance policy to “pay on behalf of the insured all sums the insured shall become legally obligated to pay.” Even if Marceau has a deductible of $ 1,000 that applies to some claims, that deductible does not apply to this claim for damage to someone else's car. In short, as far as the claim here is concerned, there is no “applicable deductible,” as that phrase is used in 211 Code Mass. Regs. § 134.04(3) (2008). The judge therefore correctly determined that the relevant threshold was $ 500 and that Liberty Mutual's claim payment of $ 717.88 properly resulted in a surcharge.⁵

Judgment affirmed.

FOOTNOTES

3.   Application of the current regulation, 211 Code. Mass. Regs. § 134.03 (3) (a) (2017), would not change the outcome. (The judge and the parties cite the current regulation.)

4.   Marceau's automobile insurance policy was not admitted in evidence, and there is no testimony regarding her deductible. Therefore, even assuming Marceau's legal argument to be correct, the record would not have supported a decision that the relevant threshold under her policy is $ 1,500.

5.   In view of our decision, we need not resolve whether the absence of a transcript was fatal to Marceau's appeal.