KRAYTSBERG v. COMMERCE INSURANCE COMPANY (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In the early morning on June 29, 2018, the plaintiff was stopped at a stop sign on Madison Avenue, at the intersection with East Street, in Sharon. As he began to take a left-hand turn, his car was struck by another car. The plaintiff's insurer, The Commerce Insurance Company (Commerce), found the plaintiff to be more than fifty percent at fault, and surcharged him for failure to proceed with caution from a traffic control signal or sign. The plaintiff unsuccessfully appealed the surcharge to the Board of Appeal on Motor Vehicle Liability Policies and Bonds (board) and then again to a judge of the Superior Court under G. L. c. 175, § 113P. The judge affirmed the decision of the board, and this appeal followed. We affirm.

Discussion. The plaintiff has a right to appeal an adverse decision by the board and bears the burden of showing that the decision of the board was invalid. See Merisme v. Board of Appeals on Motor Vehicle Liab. Policies & Bonds, 27 Mass. App. Ct. 470, 474 (1989). Among other reasons, a judge may alter a decision of the board if it is unsubstantiated by the evidence, arbitrary or capricious, an abuse of discretion, in violation of constitutional principles, or based on an error of law. Id. See G. L. c. 30A, § 14 (7). Where supported by substantial evidence, the decision of the judge on matters of fact “shall be final.” G. L. c. 175, § 113P. See Nercessian v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 46 Mass. App. Ct. 766, 775 (1999).

Accordingly, on appeal, we review such a factually supported final decision only for an error of law. Nercessian, 46 Mass. App. Ct. at 775. “That review cannot, however, extend to examining the weight of the evidence to determine whether the [judge's] decision -- either upon [his or her] own findings of fact or those of the board adopted by the [judge] -- was justified, unless there is absolutely ‘no basis in fact’ to support that decision.” Id.

Here, the board found that the plaintiff “failed to proceed with caution from the traffic control signal or sign because despite [his] view, [the plaintiff] failed to observe the other vehicle in time to avoid the collision.” The board also found that the plaintiff “failed to yield to the other vehicle, which had the right of way.” The board then applied “Standard of Fault no. 8,”³ which creates a presumption that the driver is more than fifty percent at fault when he fails to proceed with due caution from a traffic control or signal, and thereafter collides with another vehicle. See 211 Code Mass. Regs. § 74.04(08) (2018). The board found that the plaintiff did not overcome this presumption. The judge properly deferred to the board's findings, which she found to be supported by the record.

On appeal, the plaintiff argues that the board's decision is contradictory and inconsistent, the judge failed to recognize controlling precedent, and the judgment is inconsistent with the record. We are not persuaded. Some of the plaintiff's arguments are beyond the limited scope of our review. Moreover, the board's factual findings are fully supported by the record, as is the decision of the judge.⁴ See Nercessian, 46 Mass. App. Ct. at 775-776. In particular, in light of the evidence referenced in the board's decision, we take its reference to “points of impact” as referring to the locations of the vehicles when they collided with each other, rather than to the specific parts of the vehicles that came into contact with each other. Based on that location evidence, the board had ample basis to find that the other vehicle “should have indeed been observed” by the plaintiff in time to avoid the collision, but was not. Accordingly, we affirm the judgment. The plaintiff's request for fees and costs is denied.

Judgment affirmed.

FOOTNOTES

3.   The “Standard of Fault” provisions are regulations promulgated by the board. See Merisme, 27 Mass. App. Ct. at 472-473.

4.   To the extent that the judge's decision did not address the requirement that a threshold determination that the driver failed to proceed with caution must be made before the presumption of fault applies, such omission is harmless as the board made this determination, which was supported by substantial evidence. See Prescott v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 42 Mass. App. Ct. 36, 39 (1997).