Tuesday, February 9, 2016

Massachusetts Appeals Court affirms surcharge despite unrebutted testimony

Commerce Insurance Company imposed a surcharge against its insured following a motor vehicle accident.  The insured appealed to the Board of Appeal on Motor Vehicle Liability Policies and Bonds.

The insured testified that he was driving 35 mph, 60 to 70 feet behind another vehicle.  The driver of the other vehicle stopped and simultaneously activated the left directional.  The insured braked but rear-ended the stopped vehicle.  

The Board found that the totality of the evidence supported the presumption set out in 211 C.M.R. §74.04 that the operator of a vehicle 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 Superior Court affirmed the decision of the Board, and the insured appealed to the Massachusetts Appeals Court.  In Markuns v. Commerce Ins. Co., 2016 WL 392987 (Mass. App. Ct.) (unpublished) the insured argued that the judge erred in not concluding that the Board should have credited his testimony because it was unrebutted.

The court disagreed, holding that the Board is not bound to accept unrebutted testimony. 

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