Nercessian v. Board of Appeal on Motor Vehicle Liability Policies & Bonds
Nercessian v. Board of Appeal on Motor Vehicle Liability Policies & Bonds
Opinion of the Court
The appellant, Berj Nercessian, was involved in a single-car collision at 11:15 a.m. on January 29, 1996. He was driving at approximately fifty-five miles per hour in the passing lane of Route 128 south in Waltham when his vehicle suddenly swerved into the guardrail. He does not recall any details of the collision, having suffered a concussion (perhaps because his air
The appellee, the Board of Appeal on Motor Vehicle Liability Policies and Bonds (board), acting pursuant to its statutory and regulatory authority,
Nercessian proceeded to appeal the board’s decision to the Superior Court pursuant to G. L. c. 175, § 113P, third par., which, as amended through St. 1983, c. 241, § 20, provides, in pertinent part:
“Any person . . . aggrieved by any finding or order of the board may appeal therefrom to the superior court department of the trial court, pursuant to the provisions of section fourteen of chapter thirty A. . . . Said court shall, after such notice to the parties as it deems reasonable, give a summary hearing on such appeal and shall have such jurisdiction in equity to review all questions of fact and law, and to affirm or reverse such finding or order and may make any appropriate decree. Said court or justice may allow such appeal, finding or order to be amended. The decision of the court or justice shall be final. . . . Said court may make reasonable rules to secure prompt hearings on such appeals and a speedy disposition thereof.” (Emphasis supplied.)
A judge of the Superior Court affirmed the board’s decision, ruling that Nercessian had failed to bear his burden of demonstrating its invalidity and that it was supported by substantial evidence in the record, not merely the rejection of Nercessian’s transcript evidence. Compare Cohen v. Board of Registration in Pharmacy, 350 Mass. 246, 251-252 (1966).
Appealing to this court from that affirmance, Nercessian contends that the board erred in disbelieving his evidence, which he claims undermines the regulatory presumption, and that the Superior Court judge erred in determining that the board’s decision was supported by substantial evidence. Relying on traditional principles of deferential judicial review of administrative agency action and the authorities cited in note 3, supra, the board urges us to approve the Superior Court’s conclusion that the board had justifiably rejected, as insufficient to overcome the presumption of fault, Nercessian’s unreliable speculations as to how the accident happened.
The board has been little more helpful on the issue posed by the panel. Without citation to authority or any reference to its apparent oversight heretofore,
Despite the technically defective nature of the board’s contentions on the jurisdictional point,
It is our duty to make every effort to give force and effect to “every word of a legislative enactment.” Bartlett v. Greyhound Real Estate Fin. Co., 41 Mass. App. Ct. at 289, quoting from
Here, that intent can be gleaned from the procedural scheme established by G. L. c. 175, §§ 113B and 113P, particularly the use of presumptions of fault at the administrative level and § 113P’s authorization of the Superior Court judge to whom an appeal is taken “to review all questions of fact and law” in a “prompt” but “summary hearing on such appeal” and to make “a speedy disposition thereof.” This statutory language bespeaks a legislative desire to streamline the review process, a design reflecting (as the board observes) “the limited magnitude and modest complexity of most surcharge appeals.”
Such an objective of expedition would be impeded, if not thwarted, by the addition of another layer of full-fledged appellate decision-making, which could easily aggravate delay in the efficient implementation of the board’s task of dealing with the ubiquitous and seemingly inevitable phenomenon of automobile accidents in our society — a problem that has been recognized by the courts of this Commonwealth for at least three-quarters of a century. Cf. Opinion of the Justices, 251 Mass. 569, 594-597 (1925); Mitchell v. Lonergan, 285 Mass. 266, 268 (1934). The legislative purpose of speedy disposition of such matters would seem best served not only by the elimination of procedural “formalities . . . [that] cause delay,” Summit Fid. & Sur. Co. v. Commissioner of Ins., 333 Mass. 476, 481 (1956) — which § 113P explicitly authorizes the reviewing Superior Court to do — but, even more effectively, by making the Superior Court’s appellate decision literally “final” and, as the board asserts, leaving surcharged motorists to, at most, a limited right of further appeal, arguably the extraordinary certiorari remedy under G. L. c. 249, § 4.
The modem version of certiorari might appear even more appropriate in light of the judicial broadening, over the last generation, of the statutory remedy beyond its historic common-law restrictions and technicalities. See Boston Edison Co. v. Boston Redev. Authy., 374 Mass. 37, 49-50 (1977); Wightman v. Superintendent, Mass. Correctional Inst., Walpole, 19 Mass. App. Ct. 442, 445 (1985) (the scope of review on certiorari is a function of the nature of the judicial or quasi judicial action sought to be reviewed). Our courts now allow review on certiorari to extend, in appropriate cases, to determining whether the decision being challenged was arbitrary, capricious, or an abuse of discretion, see Caswell v. Licensing Commn. for Brockton, 387 Mass. 864, 877-878 (1983); whether such decision was
We reject, however, the board’s position that the only recourse of a surcharged motorist whose § 113P appeal is denied by the Superior Court is the certiorari route of G. L. c. 249, § 4, however liberalized, for several reasons. The first rests upon principles of sound judicial administration. A civil action in the nature of certiorari “may be brought [only] in the supreme judicial or superior court.” G. L. c. 249, § 4. We cannot conceive that the Legislature could have acted with the essentially irrational intention of compelling a person in Nercessian’s situation to undergo two successive and basically identical Superior Court proceedings relitigating the same issues.
Because of that consideration of judicial economy, combined
The Almeida decision did not mention, much less focus' on, the finality provision of § 113P. It indicates, however, the Supreme Judicial Court’s apparent view that further review of a board surcharge decision, beyond the Superior Court, properly lies to a regular appellate tribunal.
On the analogic strength of the discussion in Bartlett, 41 Mass. App. Ct. at 289-291 & n.12,
Because the arguments Nercessian advances solely involve challenges to the sufficiency of the evidence on the basis of which the board upheld his insurer’s merit rating surcharge on account of his single-car collision, his appeal addresses matters beyond the scope of our review.
Judgment affirmed.
See, with respect to this regulatory scheme, G. L. c. 175, §§ 113B & 113P; 211 Code Mass. Regs. §§ 74.00 et seq. (1995); DiLoreto v. Fireman’s Fund Ins. Co., 383 Mass. 243 (1981); Merisme v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 27 Mass. App. Ct. 470 (1980); Yazbek v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 41 Mass. App. Ct. 915 (1996); Prescott v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 42 Mass. App. Ct. 36 (1997).
The presumption that the board applied in this case appears in 211 Code Mass. Regs. § 74.04(19) (1995), and states: “Single Vehicle Collision. The operator of a vehicle subject to the Safe Driver Insurance Plan shall be presumed to be more than 50% at fault when operating the only vehicle involved in a collision.” Nercessian had appealed to the board, pursuant to G. L. c. 175, § 113P, from a premium surcharge levied by his automobile insurer, Arnica, in accordance with the Safe Driver Plan and the single-car collision presumption of fault established by the Commissioner of Insurance and the board pursuant to G. L. c. 175, § 113B.
The hearing officer emphasized that the proffered transcript “was neither signed, or sworn and participating individuals were not clearly identified as to experience and expertise in motor vehicle parts and accident re-construction.” See Merisme v. Board of Appeals on Motor Vehicle Liab. Policies & Bonds, supra at 473-475 (hearsay evidence can satisfy the “substantial evidence” standard at board hearings if it has “indicia of reliability and probative value”).
Evidence cited by the hearing officer, in addition to the presumption, was
As in Bartlett v. Greyhound Real Estate Fin. Co., 41 Mass. App. Ct. 282, 284-285 (1996), the parties’ supplemental submissions on the issue of this court’s jurisdiction presented neither case authority on point nor helpful legislative history regarding the statutory provision of finality.
None of the reported decisions arising under G. L. c. 175, § 113P (see note 2, supra), mentioned the finality provision or addressed its implications. DiLoreto involved constitutional challenges to the delegation of authority by G. L. c. 175, § 113P, to a private insurance company to assess the surcharges and to the application of the presumptions of fault and did not discuss the procedural mechanisms of the statute. However, the board failed to raise any objection to this court’s review of the insured’s appeal in Merisme; and the board itself launched the appeals in Yazbek and Prescott.
Compare, e.g., Swan v. Justices of the Superior Ct., 222 Mass. 542, 544-546 (1916) (statutory provision that “there shall be no appeal” from a Superior Court decision does not preclude a writ of certiorari); Opinion of the Justices, 251 Mass. 569, 616 (1925) (Supreme Judicial Court stated that despite language in a proposed act that the decree of the Superior Court “shall be final,” such a decree would still be subject to a writ of certiorari); McLaughlin v. Mayor of Cambridge, 253 Mass. 193, 199-200 (1925); Commissioners of Civil Serv. v. Municipal Ct. of Boston, 369 Mass. 84, 90 (1975) (statutes providing that decision of district or municipal court reviewing the removal of a municipal employee “shall be final and conclusive” does not prevent resort to certiorari to correct manifest “errors of law apparent on the record”).
See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Lolos v. Berlin, 338 Mass. 10, 14 (1958) (parties have the duty to assist the court with appropriate citation of authority); Langlitz v. Board of Registration of Chiropractors, 396 Mass. 374, 376 n.2 (1985) (assertion “made without citation to authority or reasoned argument . . . does not rise to the level of [adequate] appellate argument”).
Were the hypothesis of such irredeemable conflict correct, we would be obliged to agree with the board that § 113P, as the more recent and more specific expression of the Legislature’s intent, would trump § 15. See Doe v. Attorney Gen. (No. 1), 425 Mass. 210, 215-216 (1997), and authorities there cited. Any attempt to obtain further review beyond the Superior Court would then have to be to the Supreme Judicial court by means of G. L. c. 249, § 4 (certiorari), or G. L. c. 211, § 3 (general power of superintendence).
General Laws c. 175, § 113D, was originally enacted, as St. 1925, c. 346, § 4, over fifty years before § 113P (St. 1976, c. 266, § 18). The appeal provisions of the third paragraph of § 113P are identical in all material respects to those of the third paragraph of § 113D — including the language mandating a “summary hearing,” conferring jurisdiction on the Superior Court to “review all questions of fact and law,” authorizing court rulemaking to secure “prompt hearings” and a “speedy disposition,” and making the. court’s decision “final” — with one significant exception: § 113D says nothing about G. L. c. 30A or the nature of the appeal, whereas § 113P specifies the appeal as being “pursuant to the provisions of section fourteen of chapter thirty A.”
Review only for substantial errors of law apparent on the face of the record and not of findings of fact or sufficiency of tire evidence was the traditional limited judicial function on a petition for a writ of certiorari. See Commissioner of Pub. Works of Boston v. Justices of Mun. Ct. of Dorchester Dist., 228 Mass. 12, 15-17 (1917); Walsh v. District Ct. of Springfield, 297 Mass. 472, 475-477 (1937); Grande & Son, Inc. v. School Hous. Comm. of N. Reading, 334 Mass. 252, 259 (1956).
Such an “appellate” scenario could even become more anomalous, in that the certiorari action might allege facts and raise issues not previously relied on before the board or in the § 113P appeal to the Superior Court, so long as they are arguably to be found within the four comers of the record of the proceedings.
We recall, in this connection, Doherty v. School Comm. of Boston, 6 Mass. App. Ct. 805, 810-812 (1979). There, we accepted a direct appeal from a Superior Court judge’s findings in a proceeding under G. L. c. 71, § 43A, for reasons of judicial economy, notwithstanding the Supreme Judicial Court’s earlier decision in MacKenzie v. School Comm. of Ipswich, 342 Mass. 612, 613-614 (1961). MacKenzie had held that there could be no direct appeal of adverse Superior Court determinations under § 43A (which dealt with appeals from public school teacher dismissals and provided that “The decision of the [superior] court shall be final, except as to matters of law”) and that a writ of certiorari was the only available method of review; and several decisions of this court before Doherty had applied MacKenzie to dismiss efforts to take direct appeals from judgments entered under § 43A. Our opinion in Doherty rested on the phenomenon that, following MacKenzie, litigants dissatisfied with Superior Court decisions under § 43A proceeded to commence actions in the nature of certiorari in the Supreme Judicial Court; the single justices of
By virtue of G. L. c. 211 A, §§ 10 & 11, and the inherent nature of the
In Bartlett, we harmonized apparently conflicting provisions of G. L. c. 231, § 6G, which stated that, on an appeal of a “frivolous claim” fee sanction under G. L. c. 231, § 6F, from the Superior Court to a single justice of the Appeals Court, the decision of the single justice “shall be final”; but then went on immediately to state that “Any appeal to the supreme judicial court or the appeals court shall proceed according to the Massachusetts Rules of Appellate Procedure.” Applying the principles of statutory construction discussed above, we held that this “finality” language could not preclude further review at least for errors of law in light of the provision plainly indicating the availability of some form of further review of the single justice’s action; and we suggested, in dictum, that in all probability the finality contemplated by the statutory language related to the single justice’s findings of fact. See 41 Mass. App. Ct. at 290-291 & n.12.
To the extent G. L. c. 30A, § 15, as construed herein, makes the Superior Court’s decision under § 113P reviewable by appeal to this court, an action in the nature of certiorari will not lie. See Garden Homes, Inc. v. District Ct. of Somerville, 336 Mass. 432, 434 (1957).
Nercessian purports, in the first of his two appellate arguments, to be attacking the board’s “error of law” in concluding that he had failed to overcome- the presumption that he was more than fifty per cent at fault. This label cannot, however, disguise the fact that he is arguing that he “produc[ed] sufficient evidence” to overcome the presumption, see 211 Code Mass. Regs. § 74.03 (1995), contrary to the board’s finding and the Superior Court’s ruling that he did not.
Were we to reach the merits of Nercessian’s would-be appeal, we would agree with the board that the Superior Court judge was correct in sustaining the board’s surcharge decision, for the dual reasons that Nercessian failed to produce sufficient contrary evidence to overcome the presumption of fault and that that presumption, combined with the other evidence in the record, constituted substantial evidence for imposing the surcharge.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.