Nercessian v. Board of Appeal on Motor Vehicle Liability Policies and Bonds, 97-P-1645

• Decision Date: 14 May 1999
• Docket Number: No. 97-P-1645,97-P-1645
• Citation: 709 N.E.2d 1134,46 Mass.App.Ct. 766
• Court: Appeals Court of Massachusetts
• Parties: Berj NERCESSIAN v. BOARD OF APPEAL ON MOTOR VEHICLE LIABILITY POLICIES AND BONDS & another. 1 Suffolk

Page 1134

709 N.E.2d 1134

46 Mass.App.Ct. 766

Berj NERCESSIAN v. BOARD OF APPEAL ON MOTOR VEHICLE LIABILITY POLICIES AND BONDS & another. ¹ No. 97-P-1645.

Appeals Court of Massachusetts,

Suffolk.

Argued Nov. 13, 1998.

Decided May 14, 1999.

Harris Krinsky, Beverly, for the plaintiff.

Jamie W. Katz, Assistant Attorney General, for Board of Appeal on Motor Vehicle Liability Policies and Bonds.

Present: LAURENCE, DREBEN, & LENK, JJ.

LAURENCE, J.

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 airbag failed to deploy). The accident left his vehicle severely damaged. The State police responded to the scene of the accident and reported that on a clear, dry morning and on a highway free of defects Nercessian's vehicle had swerved to the left while braking, for some unknown reason, then hit the guardrail and swerved back into the travel lanes.

The appellee, the Board of Appeal on Motor Vehicle Liability Policies and Bonds (board), acting pursuant to its statutory and regulatory authority, ² applied a presumption of fault against Nercessian arising from his involvement in the single-vehicle accident. ³ At his hearing before the board, Nercessian challenged the presumption and resulting surcharge by arguing (despite his failure of memory) that the accident had occurred as a result of mechanical failures in his car rather than his own acts or omissions. In support of his contention, he introduced a transcript of a taped telephone conversation between his attorney and a purported auto repairman discussing possible mechanical defects that "might have" or "could have" caused the accident. The board's hearing officer rejected this evidence as unreliable ⁴ and determined that the regulatory presumption of fault, along with "the totality of evidence," ⁵ justified upholding the surcharge. That conclusion was affirmed by the full board.

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, 214 N.E.2d 63 (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.

At oral argument, we inquired about a question not addressed in the briefs, namely, whether we were empowered to decide the appeal in light of the words of G.L. c. 175, § 113P, that the decision of the Superior Court on appeal from the board "shall be final." In response, the parties submitted arguments of limited assistance. ⁶ Nercessian asserts that Appeals Court jurisdiction is conferred by the provision of G.L. c. 30A, § 15, as amended by St.1973, c. 1114, § 3, which states that "[t]he supreme judicial court and the appeals court shall have concurrent jurisdiction to review any proceedings had, determinations made, and orders or judgments entered in the superior court pursuant to section fourteen [of c. 30A]." Since his § 113P appeal of the board's decision to the Superior Court had been by its very terms "pursuant to the provisions of section fourteen of chapter thirty A," Nercessian maintains that an appeal to the Appeals Court clearly lies by virtue of the plain words of G.L. c. 30A, § 15. Unfortunately, Nercessian's argument makes no effort to reconcile the seeming conflict between the "finality" language of § 113P and the all-encompassing jurisdictional statement of § 15, except to suggest that § 113P's words "shall be final" are to be ignored--a reading we would be loath to reach except as a last jurisprudential resort after it has been convincingly demonstrated to us (which Nercessian fails to do) that "no other possible course is open." Bartlett v. Greyhound Real Estate Fin. Co., 41 Mass.App.Ct. 282, 289, 669 N.E.2d 792 (1996), quoting from Commonwealth v. McMenimon, 295 Mass. 467, 469, 4 N.E.2d 246 (1936).

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, ⁷ the board conclusorily pronounces "that, in light of the plain language of [§ 113P] ..., the Appeals Court lacks subject matter jurisdiction over an appeal from the Superior Court of a Board decision.... [T]he explicit language of G.L. c. 175, § 113P would appear to control over the more general terms of G.L. c. 30A, § 15." Recalling pre-chapter 30A doctrine, the board argues that Nercessian and other similarly stymied motorists disappointed by an adverse Superior Court decision will always have a "limited right of appeal" by way of a certiorari action pursuant to G.L. c. 249, § 4, which is "sufficient due process" "[g]iven the limited magnitude and modest complexity of most surcharge appeals." ⁸

Despite the technically defective nature of the board's contentions on the jurisdictional point, ⁹ it is correct in its assertion that we should not address the merits of the instant appeal. Both parties have essentially posited that the finality language of G.L. c. 175, § 113P, and the jurisdictional provision of G.L. c. 30A, § 15, are irreconcilably conflicting and that one must yield to the other. ¹⁰ We do not accede to those positions.

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, 669 N.E.2d 792, quoting from Chatham Corp. v. State Tax Commn., 362 Mass. 216, 219, 285 N.E.2d 420 (1972). More generally, we must strive to construe allegedly inconsistent statutes "addressing similar subject matter ... together [in order] to make 'an harmonious whole consistent with the legislative purpose,' [as well as] to avoid rendering any part of the legislation meaningless," Healey v. Commissioner of Pub. Welfare, 414 Mass. 18, 25-26, 605 N.E.2d 279 (1992) (citation omitted); and we must do so "in harmony with common sense and sound reason." Massachusetts Commn. Against Discrimination v. Liberty Mut. Ins. Co., 371 Mass. 186, 190, 356 N.E.2d 236 (1976), quoting from Atlas Distrib. Co. v. Alcoholic Bevs. Control Commn., 354 Mass. 408, 414, 237 N.E.2d 669 (1968). The fundamental goal is, as always, ascertaining as best we can the expressed or presumed intent of the Legislature.

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, 147 N.E. 681 (1925); Mitchell v. Lonergan, 285 Mass. 266, 268, 189 N.E. 39 (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, 131 N.E.2d 743 (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.

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