MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On a dark rainy night in December of 2015, plaintiff Rickie Dillard (Dillard) was involved in a motor vehicle accident in which he struck a pedestrian crossing the crosswalk and was struck from behind by another vehicle. He was surcharged by his insurance company, defendant Plymouth Rock Assurance Corporation (Plymouth Rock). He unsuccessfully appealed the surcharge to defendant 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.
4
Because the plaintiff has failed to demonstrate an error of the law, 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, the Superior Court 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 Superior Court 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 Superior Courts decision -- either upon its own findings of fact or those of the board adopted by the Superior Court -- was justified, unless there is absolutely ‘no basis in fact’ to support the decision.” Id.
Here, the board found the following. “[Dillard] struck a pedestrian in a crosswalk. He was then rear ended. [Dillard] should have observed the pedestrian and braked safely and in time, avoiding an emergency stop before the other vehicle.” The board then applied “Standard of Fault no. 19,”
5
which creates a presumption that the driver is more than fifty percent at fault when driving the only vehicle in a collision. See 211 Code Mass. Regs. § 74.04(19) (2013). This presumption can be overcome by the driver, but in this instance the board found that the damage was caused solely by his car, and concluded that the totality of the circumstances supported application of the presumption. See 211 Code Mass. Regs. § 74.04 (2013). The judge deferred to the boards findings, which he found to be supported by the record.
On appeal, Dillard reargues that “Standard of Fault no. 19” was improperly applied because this accident involved more than one vehicle. This is beyond the scope of our review as it is based on a fully supported factual finding by the board and adopted by the Superior Court judge that this was one series of events caused by Dillards vehicle. See Nercessian, 46 Mass. App. Ct. at 775. Similarly, Dillards associated argument, based on his assertion that there were two accidents, that he should not be surcharged because the damages to his vehicle with the pedestrian were less than $1,000, is unavailing.
Dillards second argument, that a clerk-magistrate found him not responsible on a civil citation for failing to stop for a pedestrian in a crosswalk and that therefore he should not be surcharged, does not fare any better. Dillards citation to the merit rating plan under 211 Code Mass. Regs. § 134.11(6) (2017), is not applicable as that section requires the insurance company to re-rate the surcharges if the driver is found not responsible on a traffic violation by a court of competent jurisdiction. The plaintiffs argument boils down to the claim that the hearing examiner should have found him not at fault for striking the pedestrian in the crosswalk just as the clerk-magistrate did. This would require us to reassess the evidence, which is beyond our narrow scope of inquiry.
6
Judgment affirmed.
FOOTNOTES
4
. Procedurally, the plaintiff filed a motion for judgment on the pleadings and defendant Plymouth Rock filed a cross motion for judgment on the pleadings.
5
. The “Standard of Fault” provisions are regulations promulgated by the board. See Merisme, 27 Mass. App. Ct. at 472-473.
6
. The plaintiff does not argue claim preclusion.