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Prescott v. Board of Appeal on Motor Vehicle Liability Policies and Bonds1/10/1997
ther 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, 418 N.E.2d 612 (1981), and one of the regulations discussed in Yazbek v. Board of Appeal on Motor Vehicle Liability Policies & Bonds, 41 Mass. App. Ct. 915, 670 N.E.2d 200 (1996), 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 "all trial counsel are required to attend," an assistant attorney general 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 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.
Judgment affirmed.
Page 1 2 Massachusetts DUI Attorneys
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