ROSEMARIE PRESCOTT vs. BOARD OF APPEAL ON MOTOR VEHICLE LIABILITY POLICIES AND BONDS & another. [Note 1]

DREBEN, J. After an accident, Rosemarie Prescott's insurer, Middlesex Insurance Company, sent her a surcharge notice stating that it had determined that she was more than fifty percent at fault in the accident, and that, as a consequence, her automobile insurance premium would be increased on her next renewal. The Board of Appeal on Motor Vehicle Liability Policies and Bonds (board) upheld the surcharge, but on Prescott's appeal under G. L. c. 175, s. 113P, a Superior Court judge determined that the board's decision was "unsupported by substantial evidence." G. L. c. 30A, s. 14. We affirm.

1. The board's decision sets forth the following facts:

"Appellant Rose Marie Prescott submitted written

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testimony that on September 22, 1993 appellant was involved in a motor vehicle accident at approximately 11:55 PM. The accident location was on West Elm Street at the intersection with West Street in Brockton, Massachusetts. The weather was not a factor. The basis of appellant Rose [M]arie Prescott's appeal was that the claimant was drunk, speeding and had no license at the time of the collision. The collision occurred as the appellant entered the intersection from a stop sign on West Elm St. The police report does state the claimant operator was driving after suspension, but does not indicate any other violation as alleged by the appellant. The appellant was cited for a stop sign violation, appealed this citation and was found not responsible at a magistrate hearing. (See Addendum A)." [Note 2]

Noting that its decision was in accordance with 211 Code Mass. Regs. s. 74.04(08) (1986), set forth in the margin, [Note 3] the board determined that "ample evidence supports the Board's conclusion that [Prescott] did not use due caution when proceeding through a stop sign into the path of the approaching vehicle."

We agree with the judge that that conclusion is not supported by substantial evidence. "'Substantial evidence' means such evidence as a reasonable mind might accept as adequate to support a conclusion." G. L. c. 30A, s. 1(6), inserted by St. 1954, c. 681, s. 1. The only evidence in the record consists of Prescott's accident report filed with the Registrar of Motor Vehicles, her statement which she authorized to be used in

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place of her personal appearance, a police report, and the determination of "no responsibility" by the Brockton District Court. The accident report, if any, of the other driver is not included in the record.

Prescott's material, not surprisingly, placed the blame on the other driver who, she claimed, was speeding. [Note 4] The police report is not to the contrary and merely states:

"[Cit] D1095781 to # 1 for open aft. susp. She stated #2 just pulled out in front of her. Cit. #D0333000 was issued to #2. She stated she stopped at sign and was edging out when # 1 who was speeding hit her."

Both the police report and the plaintiff's accident report indicate that the damage was to the front end of the plaintiff's car and to the front right, right side, and right rear tire of the other car.

The only evidence from which the board could reach its conclusion that the plaintiff either failed to obey the stop sign or "fail[ed] to proceed with caution therefrom" were the fact that an accident had occurred, the extent and location of the damage to the vehicles, and operator #2's statement to the police that the plaintiff "just pulled out in front of [me]." The mere fact of an accident does not show lack of caution; similarly, the area of damage to the cars does not indicate

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lack of caution without reference to the conditions of visibility and the speed of the other car. Operator #2's statement to the police does not deny she was speeding or even indicate that car # 1 pulled out precipitously.

Unlike the regulations involved in DiLoreto v. Fireman's Fund Ins. Co., 383 Mass. 243, 244-245 n.3 (1981), [Note 5] and one of the regulations [Note 6] discussed in Yazbek v. Board of Appeal on Motor Vehicle Liability Policies & Bonds, 41 Mass. App. Ct. 915 (1996), [Note 7] where specific facts, e.g., the opening or closing of a door or the making of a left turn, triggered the presumption of more than fifty percent fault, here, there first must be a finding that the plaintiff failed to stop or failed to proceed with caution, before any presumption takes effect. There was no "substantial evidence" to show such a failure.

2. We comment on a disturbing circumstance. Although the Commonwealth received a "Pre-Trial Conference Notice" dated August 16, 1995, setting forth that "[a]ll trial counsel are required to attend," an assistant attorney general [Note 8] wrote to the court that he did not intend to appear because the matter involved an administrative appeal. The trial judge found:

"The case was assigned for a pretrial conference on August 22, 1995. The plaintiff appeared and waited all afternoon for the attorneys for the defendant to appear. A letter from the Assistant Attorney General of August 20, 1995, received on August 22, 1995, informed the court that counsel did not

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intend to appear but submitted a memorandum instead. The plaintiff was prepared and anxious to go forward."

It is unfortunate that it is necessary for this court to remind the office of the Attorney General that it is not open to it to decide whether to attend a compulsory conference ordered by a court and that permission from the court is required to relieve it from that duty. [Note 9]

Judgment affirmed.