Auto Insurance Claims: Surcharge Appeal, accident involving animal, state department of insurance, concrete column

Question
Hello,

I was recently in an accident that damaged the front and back right tires, suspension (control arm for front wheels) and front bumper. No other car was involved. It had been raining and while passing through an underpass, a dog ran out in front of my car, too close to allow proper reaction time on my part. I swerved to avoid hitting the animal and hit the sidewalk and concrete column holding up the underpass. I've since received a surcharge notice from my insurance company per they've advised I was deemed more than 50% at fault. My question is are there any state laws (MA) surrounding animals that could help me in my appeal? I've heard that there are, and I esp would like to find and use them, given that at the time I reported the accident, the adjuster told me if I had hit the dog, I wouldn't have been surcharged/deemed at fault.

Thanks,
D

Answer
Hi D,
Your insurance company was required to submit the legal wording of their policy to your state department of insurance and secure their approval that it met the laws of your state before being able to sell
the policy to the general public.  After that initial approval, if
they decide to change one or more words in the policy, it must be re-submitted for approval.
A company is allowed to write a policy that is more broad in it's
terms and benefits than state law, but never more restrictive.

If you will read the legal wording of your policy (not the declarations page), you will find a section called "Car Damage".
this section explains comprehensive and collision.  Immediately
following that section, you will find a section called "Additional Definitions Used In This Part Only".  This section defines collision
and lists a large number of losses that will NOT be considered as a
loss by collision (meaning that they are covered under comprehensive).
Among those items you will find......,colliding with a bird or wild
animal,.......

A small number of companies have broadened their policy to read........,colliding with a bird or animal,.....

In your case neither of these apply because you stated that you swerved to avoid hitting a dog and collided with the sidewalk and support column.

Under either wording shown above you do not qualify to have your
claim handled under comprehensive because there was no contact
with the animal.

In uncountable one car accidents, the driver reports swerving to
avoid another car that ran a red light or was drifting into his
lane.  In insurance claims language, these are called "phantom"
vehicles since there was no contact, there is no proof of their
existence.  Your case would be considered a "phantom" animal.
All "phantom" accidents are considered as fault accidents and
covered under collision.  

Every state has a law concerning the amount of damage that must be incurred before the insurance company can add a surcharge.  In
most states that amount is $500-$750.  You can call the department
of insurance and learn the law in your state.

You can always file a complaint with the state department of insurance and they will investigate this situation to verify if
your insurance company has complied with state law and the legal
wording of your policy, or you can file a complaint with a claims
supervisor at your insurance to have the file pulled and reviewed.

Based on your wording of how the accident occurred, I don't see any
grounds that would cause a reversal of the decision.

Although I wasn't able to find a loop-hole that would change your
situation, I do hope that you find this information helpful.
Your feedback by rating my response will be appreciated.

Sincerely,
Bennie
San Francisco Bay Area