Attorney Nathan is a contributing author to the treatise, Criminal Defense Motions, where he fashioned "Motion for 15-Days License Loss Credit" used to reduce a license suspension for chemical breath test results, nationally.



Attorney Geoffrey Nathan was recently the subject of a lead article in Massachusetts Lawyers Weekly, recognizing his expertise in the area of Traffic Offenses.


Massachusetts Lawyers Weekly

Practicing Before 'The Forgotten Agency'

The Insurance Division's Appeals Board Is Little Known But Its Rulings Can Impact The Success Of Later Tort Cases

By Meghan S. Laska

Attorney Geoffrey G. Nathan vividly recalls the time his driver's license was revoked. Nathan received the penalty for speeding but says that judging by the way he was treated one would never guess that his infraction was merely exceeding 55 m.p.h. "I underwent a draconian revocation of my license which was much greater than that for a repeat drunk driver," he says. But Nathan's driving woes led to a pleasantly surprising turn in his legal career. When he appealed his revocation before the Division of Insurance's Board of Appeal on Motor Vehicle Liability Policies and Bonds, he not only salvaged his license, he also discovered a potential practice area.

"I had been clawing my way through the highly competitive field of personal injury law and was not happy practicing corporate law. I decided that I had to carve out my own expertise," remembers Nathan.

Whether someone wants to contest the Registry of Motor Vehicle's revocation or suspension of a driver's license or appeal an insurance company's finding of fault in an accident, a lawyer has to know the ins and outs of the insurance agency's appeals process, and Nathan says that he is one of the few who speaks this language.

"It is a [complex] area of practice.... stakes are high which means that the fees can also be high." Nathan estimates that a solid 20 percent of his income is derived from representing clients before the Board of Appeal. And with an increase in elderly drivers and boom in "road rage," business isn't likely to decrease, he says. "You won't make a living solely on these appeals, but once you know the rules and have an understanding of the practice, you can feel comfortable charging a big fee," says Nathan.

But fees aren't the only reason attorneys need to pay more attention to the Board of Appeal.

That's because a surcharge finding by the board could have an impact on issues that arise in subsequent personal-injury suits, attorneys note.

A Quiet Existence

The Division of Insurance's Board of Appeal is sometimes referred to as the "forgotten agency" by attorneys, as many people have never heard of it and those who have say that it is often difficult to find.

"There are a hell of a lot of people who don't know anything about it," says former board member John F. Haddigan of Quincy, who estimates that only 50 to 100 lawyers actually practice before the board.

Nathan adds that the agency has moved around a lot over the years, which can sometimes make tracking down phone numbers and hearing locations challenging.

But the Board of Appeal now located within the confines of Boston's South Station provides an important forum for thousands of drivers who wish to contest license losses or findings of fault (i.e., surcharges) by insurance companies.

According to Andrew M. Padellaro of Boston, legal counsel for the RMV, there can be up to 500,000 active revocations or suspensions in Massachusetts at any given time.

And notwithstanding the board's seemingly quiet existence in the legal community, it hears more than 50,000 appeals a year, according to Dianne R.T. Senkel, a hearing officer and special assistant attorney general for the board.

"Plenty of people are coming to us. I hope we aren't underutilized," she laughs.

Senkel explains that hearing officers are divided into two units with nine officers handling surcharge appeals and three officers handling license loss appeals.

Of the three board members who hear surcharge appeals, Board Chairwoman Ada Maria Barry says that two are appointed by the Governor's Office and one is appointed by the attorney general.

Haddigan points out that the board has had some very interesting members over the years, including Roderick L. Ireland, now a justice of the Supreme Judicial Court.

According to Senkel, about half of the current officers are lawyers, although a law degree is not a requirement for the job.

"Generally, you need a legal background and lawyers are a little more preferable because we are encountering more attorneys on the other side and hearings are becoming more litigious," she says, noting that the board also hears appeals of insurance cancellation.

Senkel adds that hearings are held at South Station in Boston, the Boston RMV, Marlborough District Court, Springfield Town Hall, the Worcester RMV, Memorial Hall in Plymouth, Peabody District Court, the Pittsfield RMV and (most recently) Somerville District Court.

"We try to cover the whole state," she says.

'Serious' Consequences

An appeal on the surcharge side of the Board of Appeal might go something like this: a woman is seriously injured when she fails to see a stoplight at the top of a hill, collides with the car in front of her and is rear-ended by the car behind her.

Her insurance company deems her to be at fault in the accident and issues a surcharge.

She wants to sue the driver of the car that rear-ended her for personal injuries in civil court and she requests a hearing before the Board of Appeal.

Nathan explains that such an appeal is necessary, as a finding that a driver was more than 50 percent at fault in an accident can affect his ability to recover in a personal injury case.

In the "hill" case (an actual case), Nathan was hired by the woman's personal injury lawyer to pursue the appeal.

"I brought in an engineer to testify about how the town had improperly positioned the traffic light so drivers in low vehicles could not see it," he says, noting that the board reversed the surcharge and the personal injury lawyer ultimately recovered a "nice sum" in the civil case.

Nathan stresses that more personal injury lawyers should follow this example, as many attorneys are unaware that there is an avenue of appeal and might be turning away good cases.

Warren F. Fitzgerald of Boston, president of the Massachusetts Academy of Trial Attorneys, says that lawyers should advise clients to oppose the surcharge with counsel because an adverse finding by the Board of Appeal can be grounds for "serious" issues of issue preclusion down the road.

Fitzgerald notes that, in the 1981 decision of Almeida v. Travelers Insurance Company, the SJC held that in a civil action between an individual insured and his insurance company, an earlier determination by the Board of Appeal was determinative as to an issue of the insured party's degree of fault.

Barry agrees that the surcharge issue can be important in future tort cases, as the board is considered a court of competent jurisdiction for the issues that come before it.

"That means issue preclusion would go into effect, but if a case is already pending in court, we will postpone the case at the board until the civil case is resolved," she says.

Senkel adds that the 1999 Boston Municipal Court decision of Bain v. Hopkins (Lawyers Weekly No. 16-002-99) is causing further concern for some tort lawyers whose clients are considering bringing suit against another driver or entity for their personal injury.

"Generally, our decisions are only brought in as a piece of evidence and are not conclusive in civil court, but in Bain the plaintiff was found at fault twice by an insurance company and then by the board and was not allowed to pursue her personal injury claim," she says.

Senkel notes that the decision seems to be causing a "ripple effect" among lawyers.

"Many people are now looking at our decisions very closely, although I assume that someone will eventually take that case to the Appeals Court," she says.

The board's position, according to Senkel, is that its decisions are not intended as conclusive evidence in civil court.

"We aren't looking at injuries in our hearings, but we will have to wait and see what the court says," she says.

'Horrible' Process

As decisions by the board may have serious effects on tort cases, attorneys stress the importance of hiring attorneys with experience before the board.

"It takes a while to learn what types of information the board wants," says Nathan. "For example, you want to bring in pictures of the accident site and maybe even an accident reconstructionist."

He analogizes the surcharge hearing to binding arbitration where there are no rules of evidence and things are a bit less formal.

"But the factfinder still wants to hear why your expert came to his conclusion and make sure that the expert has a first-hand opinion," he says.

Senkel adds that the board applies a "reasonable driver standard."

The hearing officer will consider whether the driver was acting reasonably in comparison to how a safe driver would act, Senkel explains.

"If you rear-end a car in front of you, there is a presumption of fault that you did something wrong so you can appeal by filling in the form on the back of the surcharge notice and mailing it to us," she says, noting that hearings before the board are very quick.

In fact, Barry estimates that most lawyers are in and out of the building within 30 minutes for surcharge hearings.

While the procedure at the board may be refreshingly swift for lawyers, some take issue with the process for appealing the board's decisions, which involves going to the Superior Court.

According to Senkel, the Superior Court sees about 200 such appeals a year.

"This is a horrible process because the board's hearings are a far cry from having a full-blown trial on the merits [and] the Superior Court has many better things to deal with than surcharge appeals,"says Fitzgerald.

Stephen M. Salon of Boston agrees.

"There are no rules of evidence and the board can hear anything it wants to hear," he says. "I don't think most people prevail at the hearings it seems like a rubber-stamp of a prior decision."

Barry maintains that while the board is working to compile Rules of Practice and Procedure, "it would rather err on the side of allowing an appellant to present something and then decide if it's relevant, especially because most people [appearing] before it are pro se."

According to Senkel, the board upholds insurance company findings about 50 percent of the time.

Proving Hardship

In contrast to the surcharge unit, the licensing side of the board is relatively quiet, as its officers hear about 5,000 appeals a year, according to Barry.

She explains that drivers who come before the licensing panel are appealing a decision by the RMV to revoke or suspend their license.

But up until the early 1980s, the authority of the board to review a decision by the registrar was "contentiously" debated, says Haddigan.

He explains that this became such an important issue that it went before the full bench of the SJC and after a three-hour hearing the SJC decided that the board does indeed have the authority to annul, modify or affirm the registrar's decisions.

"That was a great victory for me, the board and the attorney general," Haddigan says.

Now, according to Barry, one of the major factors the board considers in these appeals is "economic hardship."

"They have to address whether there is an underlying drug or alcohol problem and whether there is an economic hardship which would warrant putting them back on the road," she says, noting that unlike the licensing unit where only one officer is required to hear an appeal, all three members on the surcharge side are required to sit for appeals.

Nathan notes that these cases require strong proof of financial difficulty in addition to testimony from the driver.

"I had a client once who was arrested for OUI and leaving the scene of an accident after causing personal injuries and she sustained a two-year license loss. We went in front of the board and within 90 days got her a hardship license," recalls Nathan, who says he proved the client's husband was in arrears in child support by a subpoena to the Department of Revenue and had her testify about how her children would go hungry if she did not have a license.

Nathan recalls another client with mental problems who had it out for the police.

"He hated the police and would taunt them by speeding in his expensive sports car every chance he got," Nathan says. "Eventually, they got sick of him and issued an immediate threat to the community notice, which meant a complete suspension of his license."

In that appeal, Nathan says he presented proof that the man was engaged in psychological counseling and had completed a driver's education course.

"That was enough they reinstated his license," he recalls, noting that with more instances of "road rage," proof of counseling or medication to control anger will become increasingly necessary.

Nathan stresses that understanding the standard for the return of a license is extremely important for lawyers.

"If you argue that the officer didn't have a right to arrest your client for drunk driving, you might as well pack up your briefcase and leave," he says, noting that the issue is whether or not the license loss was arbitrary and capricious or whether the client deserves the return of the license due to economic hardship.

George R. Morad Jr. of New Bedford points out that legal arguments can be relevant if the driver's argument is that the registry was not entitled to take the action which it did or that a person's record is incorrect.

"The revocation statutes are complicated because they are contained in different chapters and sections and you can't go to one place and find them all," he says.

And Gerard F. Malone of Boston compares these appeals to dispositional arguments at any criminal trial or plea agreement.

"You are trying to convince the hearing officers that they should take action favorable to your client and it doesn't matter that they aren't judges because they know more about the registry than judges," he says.

According to Barry, over the last 12 months, the board affirmed 63 percent of the RMV's decisions, modified 36 percent and remanded 1 percent.

A Narrow Niche

The practitioners who represent license loss clients are often criminal-defense attorneys, according to experts.

Morad says that "almost every criminal disposition you have nowadays involves motor vehicle offenses or drugs all of which have an effect on whether a license is taken away."

However, Nathan points out that there are more than 90 reasons why the state can suspend or revoke a license, including failure to pay child support and driving with improperly tinted windows.

He adds that the majority of people who go before the board are pro se.

According to Barry, out of 25 cases on the docket, three appellants might have counsel.

"Most lawyers probably don't understand how this works because they don't get involved in it, but you don't have to be a rocket scientist to understand it," Malone says, noting that most of his clients are referred by other lawyers.

And because the loss of a driver's license has a "dramatic effect" on individuals, Malone adds that lawyers must also counsel clients on the consequences of future driving offenses.

"Most people aren't aware that their license can be suspended for certain things so it sneaks up on them because they don't understand how the system works," he says.

And, as licenses are very valuable to people, Nathan maintains that lawyers can make this niche a "bread and butter" side practice in conjunction with other areas of practice.

"This just proves that you can fight City Hall," says Nathan.

Reprinted from Massachusetts Lawyers Weekly.

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