New England Automotive Report January 2021 by Thomas Greco Publishing, Inc.

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LABOR RATE AASP/MA President

MOLLY BRODEUR LOOKS BACK

OEM Repair Russian Roulette A Chain of Support

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COLONIAL NISSAN 104 Mystic Avenue Medford, MA. 02155 Phone Number: 781-395-3025 FAX Number: 781-475-5063

COLONIAL HONDA OF DARTMOUTH 225 State Road (Rte. 6) Dartmouth, MA. 02747 Parts Direct: 508-997-2919 FAX Number: 508-730-6578

CITY SIDE SUBARU 790 Pleasant Street Belmont, MA. 02478 Phone Number: 617-826-5013 FAX Number: 617-489-0733

COLONIAL FORD OF PLYMOUTH 11 Pilgrim Hill Road Plymouth, MA. 02360 Phone Number: 800-233-8109 FAX Number: 508-830-1658

NORTH END SUBARU 757 Chase Road (Rte. 13) Lunenburg, MA. 01462 Phone Number: 877-289-0053 FAX Number: 978-582-9843

COLONIAL CHRYSLER JEEP DODGE-RAM 24 Coolidge Street (Rte. 62) Hudson, MA. 01749 Phone Number: 978-568-8000 FAX Number: 978-562-1213

COLONIAL FORD OF MARLBOROUGH 428 Maple Street Marlborough, MA. 01752 Phone Number: 888-460-1125 FAX Number: 508-460-3464

COLONIAL SOUTH CHRYSLER JEEP DODGE-RAM 42 State Road (Rte. 6) Dartmouth, MA. 02747 Phone Number: 508-984-1900 FAX Number: 508-996-5801

COLONIAL CADILLAC 201 Cambridge Road Woburn, MA. 01801 Phone Number: 781-935-7009 FAX Number: 781-933-7728

NORTH END MAZDA 757 Chase Road Lunenburg, MA. 01462 Phone Number: 800-322-1241 FAX Number: 978-582-9841

COLONIAL VOLKSWAGEN COLONIAL SOUTH CHEVROLET 361 State Road (Rte. 6) 89 Turnpike Road (Rte. 9) Dartmouth, MA. 02747 Westborough, MA. 01581 Phone Number: 508-996-6266 Phone Number: 888-322-6570 FAX Number: 508-979-1219 FAX Number: 508-616-0445 COLONIAL VOLKSWAGEN OF MEDFORD 162 Mystic Avenue Medford, MA. 02155 Phone Number: 781-475-5200 FAX Number: 781-391-3506

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COLONIAL CHEVROLET 171 Great Road Acton, MA. 01720 Phone Number: 800-787-2787 FAX Number: 978-263-8587

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BMW of Warwick 1515 Bald Hill Rd. Warwick, RI 02886 PH: 401-821-1510 FAX: 401-823-0530 bmwofwarwick.com

Tulley BMW of Nashua 147 Daniel Webster Hwy Nashua NH 03060 PH: 603-888-5050 FAX: 603-888-8427 tulleybmw.com

New England Automotive Report

CONTENTS

January 2021 • Volume 19, No. 1

DEPARTMENTS

FEATURES

VICE PRESIDENT’S MESSAGE by Kevin Gallerani

6 | A Chain of Support

EXECUTIVE DIRECTOR’S MESSAGE by Evangelos “Lucky” Papageorg

10 | Coattails

LOCAL NEWS

14 | AASP/MA Meets with Insurance Commissioner in Support of ADALB Bill 18 | AASP/MA Comments on Massachusetts Right to Repair Lawsuit 26 | ADALB Debates Parts Receipts, “Good Moral Character” of License Applicants

LEGAL PERSPECTIVE

32 | Are Insurers Forcing Their Insureds to Play Russian Roulette?by James A. Castleman, Esq.

ALSO THIS ISSUE 7 | AASP/MA MEMBER APPLICATION 19 | AASP/MA VENDOR AFFINITY PROGRAM SPONSORS 38 | GOT CLUTTER?

ADVERTISERS’ INDEX Accudraft Paint Booths ................................OBC

COVER STORY

By Fred Jennings, Jr., EconoLogistics

LABOR RATE:

Facts, Fiction and the Future – Part 3 (An Economist’s Perspective)

AASP/MA FEATURE By Joel Gausten

ALLIES, ACHIEVEMENTS and AASP/MA:

Outgoing President Molly Brodeur Looks Back

Ford Group ..................................................40

Quirk Wholesale Parts ......................................9

Genesis of Norwood ..................................11, 36

Reliable Automotive Equipment ..................22-23

Audi Group ....................................................12

Honda Group ................................................24

Sarat Ford Lincoln..........................................36

Balise Wholesale ............................................10

Hyundai Group..........................................11, 37

Sherwin Williams ............................................3

Best Chevrolet ..............................................26

Ira Subaru......................................................14

Bolt On Technology ........................................41

Ira Toyota of Danvers ......................................15

BMW Group............................................................4

Kelly Automotive Group ................................IBC

BMW/Mini of Warwick....................................13

Kia Group......................................................33

Boch Chevrolet............................................11, 36

Linder’s, Inc. ................................................17

Spanesi ........................................................28 Subaru Group ................................................29 Toyota Group ................................................34 USI North America ........................................35 Volvo Group ..................................................33

Boch Hyundai............................................11, 37

Long Automotive Group..................................25

Collision Solutions..........................................37

Mazda Group ..................................................8

VW Group ....................................................27

Collision Supplies ..........................................30

McGovern Chrysler Jeep Dodge Ram ................31

Wellesley Toyota/Scion ..................................18

Colonial Auto Group ....................................IFC

Mopar Group ................................................42

Wheel Collision Center ..................................38

Empire Auto Parts ..........................................38

Nissan Group ................................................39

New England Automotive Report January 2021 5

VICE PRESIDENT’S MESSAGE

A Chain of Support KEVIN GALLERANI

Welcome to 2021! I know there were times when we all felt like a new year would never come, but here we finally are. I hope all of our members and supporters are starting the next 12 months in the strongest position they can despite the ongoing pandemic and the economic ups and down that continue to go along with it. Not surprisingly, AASP/MA has also had to weather the storm of the past year. is month, I’d like to use this space to thank every company that participates in our Vendor Aﬃnity Program (VAP). ese sponsors were a tremendous help in enabling AASP/MA to maintain its focus and move forward with its goals in 2020, and they will undoubtedly be a major part of our success this year. As our industry gets back into the swing of things after the holidays, I urge every member reading this to take a look at the VAP sponsors listed on page 19 of this issue and support those who support us and the future of body shops in this state. ese are the people who are helping to fuel our work at the State House, at the ADALB and on the streets on behalf of every collision repairer in the Commonwealth. Your business in return is greatly encouraged and appreciated. is industry has taken some major hits in recent months, but we are a resilient community. AASP/MA is here to help make your businesses the best they can be, especially at a time of great uncertainty for everyone from our consumers to our employees. We look forward to serving as your resource and advocate throughout 2021. In return, we ask that you attend our meetings, reach out to

legislators in your area when asked to do so and – again – show your appreciation for our VAP sponsors as well as the advertisers in New England Automotive Report, who all do so much to keep our engine running. PROTECTING CONSUMERS AND THE COLLISION INDUSTRY

MASSACHUSETTS

AASP/MA VICE PRESIDENT KEVIN GALLERANI is vice president of Cape Auto Collision Center in Plymouth, MA. He can be reached at (508) 747-0316 or kevin@capeautobody.com

AUT M TIVE STAFF

AASP/MA EXECUTIVE COMMITTEE

PUBLISHER

GRAPHIC DESIGNER

Thomas Greco - thomas@grecopublishing.com

Lisa M. Cuthbert - lisa@grecopublishing.com

SALES DIRECTOR

EDITORIAL/CREATIVE COORDINATOR

Alicia Figurelli - alicia@grecopublishing.com

Alana Bonillo - alana@grecopublishing.com

EDITORIAL DIRECTOR

PRODUCTION

Joel Gausten - joel@grecopublishing.com

Donna Greco - donna@grecopublishing.com

TREASURER Matthew Ciaschini IMMEDIATE PAST PRESIDENT Paul Hendricks LEGISLATIVE/ADALB COMMITTEE CHAIRMAN Tom Ricci

PRESIDENT Molly Brodeur VICE PRESIDENT Kevin Gallerani SECRETARY Gary Cloutier

AASP/MA STATEWIDE DIRECTORS PUBLISHED BY: Thomas Greco Publishing, Inc. 244 Chestnut Street, Suite 202, Nutley, NJ 07110 Corporate: (973) 667-6922 / FAX: (973) 235-1963 www.grecopublishing.com

COLLISION DIRECTOR Rob DelGallo

AT-LARGE DIRECTOR Adam Ioakim

AASP/MA DIRECTORS Ray Belsito

Kevin Kyes

Rick Fleming

Frank Patterson

Joshua Fuller

Mike Penacho

Andrew Potter Dana Snowdale

Bill Spellane Brian Stone

AASP/MA ADMINISTRATIVE OFFICE -New England Automotive Report is published monthly by TGP, Inc., 244 Chestnut Street, Suite 202 Nutley, NJ 07110. Distributed free to qualified recipients; $48 to all others. Additional copies of New England Automotive Report are available at $5 per copy. Reproduction of any portions of this publication is specifically prohibited without written permission of the publisher. The opinions and ideas appearing in this magazine are not necessarily representations of TGP Inc. or of AASP/MA. Copyright © 2021 by Thomas Greco Publishing, Inc. Images courtesy of www.istockphoto.com

WWW.AASPMA.ORG 6 January 2021

New England Automotive Report

Evangelos “Lucky” Papageorg: AASP/MA Executive Director

Alana Bonillo: AASP/MA Administrative Assistant P. O. Box 850210 Braintree, MA 02185 617-574-0741

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YES Please list my business as an AASP/MA member in good standing on the AASP/MA website for consumers to consider using for the collision repairs and assistance with the claims process. I understand this is a member benefit (_________ initials Date ___/____/2021) !

! LY;+8;!;:HY=8;!L+X";:?!O9?Z!X=7>!";"6;>8Z9L!+LLY9H+?9=:!

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! New England Automotive Report January 2021 7

Superior service starts with superior parts. Rely on what Mazda drivers already know-Genuine Mazda parts extend a car's life. Designed specifically for Mazda vehicles Get the right part the first time We're an accurate, trusted resource as close as your phone Give us the opportunity to serve you

Contact these Mazda dealers for all your parts needs: Mastria Mazda 1545 New State Highway Route 44 Raynham, MA 02767 Phone: 877-272-8876 Fax: 508-802-4074 wholesale@mastria.com

8 January 2021

New England Automotive Report

Quirk Auto Dealers 115 E. Howard St. Quincy, MA 02169 Toll Free: 877-707-8475 Balise Mazda 635 Riverdale St. West Springfield, MA 01089 TOLL FREE: 800-992-6220 FAX: 800-254-3544 wparts@baliseauto.com www.BaliseWholesaleParts.com One Call, One Truck for Eleven Brands!

New England Automotive Report January 2021 9

EXECUTIVE DIRECTOR’S MESSAGE

EVANGELOS “LUCKY” PAPAGEORG

Coattails

As we put 2020 in our rearview mirror and move forward optimistically in 2021, we can build upon the solid foundation we have set to move forward. As always, AASP/MA has worked diligently to keep our members informed and in the know about those things that can have positive eﬀects on their business. We have all been extremely challenged due to the added pressures of the COVID-19 epidemic. As is often said, “at which does not destroy us only serves to make us stronger.” AASP/MA has been made stronger by finding new ways to be of service to our members without face-to-face chapter and statewide meetings. We closed out 2020 with the start of a series of Labor Rate-related articles, and we are continuing that theme in 2021. In this issue of New England Automotive Report, you will find the first of several articles by a longtime industry supporter, Dr. Fred Jennings, Jr. Fred is an economist who has worked with other associations in the past in preparing reports

and position statements regarding the manipulations imposed upon the collision repair industry, which are unlike those experienced in almost any other retail business. Over the years, many have learned from Fred’s writings and explanations and have put his suggestions to work in the way they run their businesses. He is just one of the many examples of how AASP/MA seeks to make each and every member stronger, more independent and more confident. Among those who have taken steps to advance their businesses are the shop owners who have also taken on leadership positions in AASP/MA by donating their valuable time, knowledge and expertise for the betterment of our association and industry. At the time of this writing, our elections were in the final stage of completion. e Board of Directors is made up of longtime members of the association who have chosen to do more than just support in the form of membership dues. ey have taken on the

You will be called upon in 2021 to assist in our legislative efforts.

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10 January 2021

New England Automotive Report

added responsibility of leading by example. is year, AASP/MA has decided to include all those individuals who ran for the directorship but did not place in the top three in their chapters. ese new aﬃliate directors will assist the Board of Directors to lead the association over the next two years. In the process, they will learn to lead and become an essential part of the future of AASP/MA. ey will be active participants on special committees along with the newly elected directors of the association. ere will be several new faces along with directors who already have leadership experience. ey will work together for all of us in the collision repair industry here in Massachusetts. It is incumbent upon you, as a member of the collision repair industry here in Massachusetts, to also do your part. If you are new to AASP/MA, please be sure to visit and utilize our website, aaspma.org, to its fullest potential. List your shop as a proud member on the website as a reference point for potential customers to find you. Our goal is for the public to come to recognize AASP/MA as the association of shops that are, as our banner reads, “Protecting Consumers and the Collision Repair Industry.” Our emphasis is protection and making sure that all involved in the collision repair process are getting what they are entitled to. We are truly the only voice advocating for the consumer in the collision repair process. at is why we spend so much energy bringing you the information you need to be successful. It is also why we have started a Lobbying and Legal Fund as we go forward into 2021. As of January 1, we have also retained the services of e Glodis Group, which is headed by Guy Glodis, to be AASP/MA’s

lobbyist. Guy has lots of experience in the legislative and legal world of Massachusetts. He has not only been a state representative and senator but also a county sheriff. Guy will be spearheading our efforts on legislative action to move the Auto Damage Appraiser Licensing Board (ADALB) away from the Division of Insurance (DOI) to the Division of Professional Licensing (DPL). For those of you who have been following AASP/MA’s efforts on this piece of legislation, you will know that the bill was released favorably from the Joint Committee on Consumer Protection and Professional Licensure. e bill is currently in the Senate Ways and Means Committee, where it has been held due to all the activity (or lack thereof ) brought on by the COVID-19 crisis. Despite the pandemic, AASP/MA has been actively meeting with and enlisting the support of senators across the state on this legislative piece. We have a solid foundation and are prepared to refile during the current 2021 legislative session. Our meetings with senators have been very productive in the educational process regarding the issues we face as repairers in trying to protect the motoring public against actions of insurers that attempt to mitigate their liability by dictating repair procedures. You will be called upon in 2021 to assist in our legislative efforts. Your support in contacting your local legislator(s) and holding AASP/MA-run meetings in your shops so they may see and hear from you firsthand will continue to be key in our process. Your financial support of AASP/MA in the form of membership and the funding to the Lobbying and Legal Fund will also play a key role. I have been actively and successfully reaching out Continued on page 30

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New England Automotive Report January 2021 11

Audi dealers strive to make you an Audi Genuine Parts fan •

Audi Parts professionals are your subject matter experts on collision parts, replacement components and mechanical items.

•

Many Audi dealers offer technical service support hotline access that can reduce your repair times and help you meet an on-time promised delivery.

•

Installing Audi Genuine Parts contributes toward improved cycle time that helps make both your customer and their insurance company happier.

•

Regardless of the age of your customer’s Audi, Audi dealers have access to over 200,000 part numbers. No other supplier comes close.

Helping you do business is our business. Order Audi Genuine Parts from these select dealers. Audi Natick 549 Worcester Street Natick, MA 01760 www.bernardiaudi.com 800.247.3033 Fax: 508.651.6841

Hoffman Audi 700 Connecticut Blvd East Hartford, CT 06108 860.282.0191 Fax: 860.290.6355 www.hoffmanauto.com

12 January 2021

New England Automotive Report

Audi Peabody 252 Andover Street Peabody, MA 01960 800.774.8411 Parts Direct: 978.605.2182 email: pwalke@iramotorgroup.com www.audipeabody.com

Mattie Audi 80 William S. Canning Blvd. Fall River, MA 02721 800.678.0914 Fax: 508.730.1283 www.mattieaudi.com

ORIGINAL MINI PARTS.

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New England Automotive Report January 2021 13

[LOCAL] NEWS

AASP/MA Meets with Insurance Commissioner in Support of ADALB Bill On December 2, AASP/MA took a major step forward in its support of Senate Bill 182 by meeting with Massachusetts Insurance Commissioner Gary D. Anderson to gain insight into his position on the association-promoted legislation. Senate Bill 182 aims to move the ADALB from the Division of Insurance to the Division of Professional Licensure. Additionally, the

Senate Bill 182 aims to move the ADALB from the Division of Insurance to the Division of Professional Licensure.

bill seeks to expand the size of the Board by two members, both appointed by the Attorney General, and replace the current chairman, appointed by the Massachusetts Commissioner of Insurance, with one

appointed by the Commissioner of the Division of Professional Licensure. Facilitated by Senator Michael O. Moore (D-2nd Worcester), AASP/MA’s meeting with Commissioner Anderson offered clarity into where the Division of Insurance currently stands in regard to the association’s efforts to move the ADALB away from the Division’s jurisdiction. “Commissioner Anderson voiced no opposition to the current bill,” states AASP/MA Executive Director Evangelos “Lucky” Papageorg. “He doesn’t anticipate having any opposition moving forward, but if anything should change, he has committed to letting us know first. We are very optimistic based on his position on our efforts.” More information on Senate Bill 182 is available at aaspma.org. PROTECTING CONSUMERS AND THE COLLISION INDUSTRY

MASSACHUSETTS

14 January 2021

New England Automotive Report

New England Automotive Report January 2021 15

[AASP/MA] FEATURE By Joel Gausten

Allies, Achievements and AASP/MA: Outgoing President MOLLY BRODEUR Looks Back

Molly Brodeur knows all about going above and beyond in serving the collision repair community. In addition to currently wrapping up her third and final term as president of AASP/MA, she was recently named vice president of AASP National. If you’ve been to an AASP/MA event over the past six years (and well before that), you’ve undoubtedly experienced her positive attitude and commitment to supporting MOLLY BRODEUR both the association and the consumers it represents. What you might not know is that Molly was very often the first one to show up at these events and the last one to leave, regularly devoting hours of personal time to help make these special occasions possible. She somehow also found time to testify at the State House in support of various industry-led initiatives and travel the country to learn new things she could share with her industry colleagues back home. In terms of New England Automotive Report, she was often the first person to respond to an email or take a call on behalf of the association in order to make it easier for us to achieve our mutual goals each month. Perhaps the most amazing aspect of her extensive industry involvement is that she has done it all while being a devoted wife and mother and running a successful business, Al Brodeur’s Auto Body in Marlborough. is month, we connect with Molly for the following conversation on her many years with AASP/MA, her thoughts on the current state of the Massachusetts repair industry and her hopes for the association and its members moving forward. New England Automotive Report: For those who are unfamiliar with your history with AASP/MA, when and how did you first become involved in the association? What inspired you to take an active role beyond being a general member? Molly Brodeur: I first became involved in Central Massachusetts Auto Rebuilders Association [CMARA] in 2006. I attended my first meeting with my dad at the Holiday Inn in Marlborough. Tom Ricci was the president of CMARA and my dad, Al, was the treasurer. It was very clear from that first meeting that our industry had some very unique challenges, and I oﬀered to help with the Labor Rate initiative. enAASP/MA Executive Director Peter Abdelmaseh and I traveled the state and held Labor Rate rally meetings with membership when the first Labor Rate Bill had been filed at the State House. We compiled video footage of shop owners and put together a presentation that we premiered at the State House to a standing-room-only crowd full of legislators, aides, shop owners and students and teachers of vocational collision programs. It was the beginning of a decade-plus journey to address the stagnant Labor Rate issue in Massachusetts.

16 January 2021

New England Automotive Report

NEAR: How has being such a hands-on member of AASP/MA most benefited your collision repair business? MB: Serving alongside some of the best collision repair owners in the business has certainly been the biggest benefit. Further, being involved in AASP/MA allowed us to be at the forefront of training and certification opportunities, industry trends, regulatory issues and legislative initiatives. All of these are critical components of running a collision repair business. Information is power, so the more you know, the better you are able to position your business for success. NEAR: Being involved on the AASP/MA Board is a voluntary endeavor, and you’ve been a mainstay in the association for many years despite also being a mom and helming a successful business. What has made devoting so much time to AASP/MA worth it to you personally and professionally? MB: It’s always been about giving back to the industry. My father was an incredible mentor to me – he always exemplified the importance of helping others and standing up for what is right. is industry is plagued with challenges, and trying to deal with the disparities alone is very isolating and doesn’t effect change. Operating in a silo isn’t going to help your business grow; it’s so important to be part of the solution instead of burying your head in the sand and waiting for someone else to do the work. NEAR: e Massachusetts auto body industry has its struggles – from currently working with the lowest average Labor Rate in the country to dealing with regulatory issues at the Auto Damage Appraiser Licensing Board (ADALB). But what makes the AASP/MA community so resilient to where you are consistently working to improve things for the better despite the frustrations common of this profession? MB: I think what has helped our Board stay focused on the issues that are of greatest importance is the ‘never give up’ attitude. As Tom Ricci has said over the years, ‘If you don’t have a seat at the table, then you aren’t in a position to try to effect change.’ We must continue to work these matters from all the angles, whether it be through empowerment of our members, regulatory action or legislative initiatives. We cannot sit back and hope that change will come on the backs of others. It is important that all collision repairers join the efforts of AASP/MA, as there is strength in numbers. NEAR: What do you consider the association’s greatest success during your time as a member and your term as president? MB: It’s difficult to isolate one singular success, as there have been many! Our steadfast commitment to addressing the Labor Rate is a success. It started with the first Labor Rate Bill filed in 2007 all the way to the launch of the first independent Labor Rate Survey in

Massachusetts facilitated by National AutoBody Research [NABR]. Secondly, it has been the evolution of technology and bringing that information to our membership at-large: Scanning, ADAS, the liability associated with proper repairs, OEM repair information and more. It began when we recognized the importance of I-CAR training 10 years ago and brought the fast-track ‘Road to Gold’ for our members. NEAR: What has been the most challenging aspect of leading this state association? What part of being president has brought you the most joy? MB: e most challenging part has been bringing the industry together and growing our membership. e most rewarding part has been working alongside our Board of Directors, navigating the collision repair landscape to ensure we are always putting the industry and the consumer first while leaving our personal feelings at the door. Diﬀerent business models is what used to divide this industry; now, it is what brings us together. NEAR: In addition to AASP/MA, you have been active in AASP National and were recently named vice president for a two-year term. How does AASP/MA’s involvement in the national group help you and other AASP/MA members back home? MB: Participation in AASP National is a key component in helping us to be at the forefront of industry trends, legislation that other aﬃliates

around the nation are exploring, training opportunities and so much more. e networking, comradery and relationships that are formed is critical in helping not only AASP/MA but all of the aﬃliates working together to ensure the industry continues to move forward. NEAR: What is the best piece of advice you’d oﬀer an AASP/MA member to get the most out of their experience with the association? MB: e best piece of advice is to get involved with the association. You don’t have to serve on the Board of Directors to have an impact. Host a legislator at your shop to help with our legislative initiatives, particularly our bill that moves the Auto Damage Appraiser Licensing Board [ADALB] to the Division of Professional Licensure [DPL]. Reach out to us with ideas or issues that you may be struggling with so we can help. e beauty of belonging to this association is that you have an executive director and a whole Board of committed folks who are just a phone call or email away. Complete the Labor Rate Survey with NABR and participate in BillableGenie. Make sure you are accessing our Members Only portal on our website, which is chock-full of information, forms and more. If you just write a check and expect magic to happen, it won’t. You have to engage to get the best bang for your buck! Continued on page 30

New England Automotive Report January 2021 17

[LOCAL] NEWS

AASP/MA Comments on Massachusetts Right to Repair Lawsuit e Alliance of Automotive Service Providers of Massachusetts (AASP/MA) shares the following oﬃcial statement from Executive Director Evangelos “Lucky” Papageorg in response to the Alliance for Automotive Innovation’s November 20 lawsuit against Massachusetts Attorney General Maura Healey in opposition to the recently passed ballot measure that revises the state’s current Right to Repair law: “It is fair to say that the public once again made its position overwhelmingly clear on who should have access to the repair information regarding their vehicle. My personal opinion is that this is nothing more than an attempt to delay or usurp what is ultimately the right of the vehicle owner to be able to choose where and who fixes their vehicle with the needed information to do so properly and safely at a price they choose to pay. AASP/MA holds true to the fact it is and should remain the right of every vehicle owner to have the final decision regarding the repair of their vehicle.”

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New England Automotive Report

e ballot measure, which passed by more than two million votes on November 3, aims to provide the Massachusetts independent automotive repair and service industry with greater access to OEM

“It is fair to say that the public once again made its position overwhelmingly clear on who should have access to the repair information regarding their vehicle." – Lucky Papageorg, AASP/MA

repair information. In its lawsuit, the Alliance for Automotive Innovation (which claims to represent “the manufacturers producing nearly 99 percent of cars and light trucks sold in the US”), argues that “[t]he extraordinary changes required by the law, combined with the standard industry lead time necessary to develop future model year Continued on page 31

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[COVER] STORY By Fred Jennings, Jr., EconoLogistics

LABOR RATE:

Facts, Fiction and the Future: Part 3 (An Economist’s Perspective)

Editor’s note: For this latest installment in our ongoing series on the Labor Rate, we welcome economist Fred Jennings, Jr. for the first of several articles that will feature his research and perspectives on the issue. We thank Fred for his contributions and welcome reader feedback on any of the topics he presents. is is the first of a series of four articles that I hope will provide an in-depth view into the Labor Rate issue here in Massachusetts. is first part oﬀers (among other things) a brief description of the current situation and then proceeds to the 1963 Consent Decree and other litigation involving the collision repair industry. e second part will address what the real level would be of Labor Rates in a market not controlled by auto insurers’ influence over appraisers and service providers, using widely accepted methods of economic evaluation to answer this question based on “arm’s length” standards. e third part will be a detailed discussion of two arguments made by auto insurers and the collision repair industry about the economics of the market. Auto insurers adhere to an “eﬃciency argument” that their approach benefits policyholders by reducing 20 January 2021

New England Automotive Report

costs and premiums. e collision industry endorses a “market power interpretation,” claiming auto insurers’ behavior does not benefit consumers either with lower premium rates or by encouraging quality repairs. e fourth part will present the results of a real-world test of the “eﬃciency argument” versus a “market power interpretation” of this industry based on a statistical analysis of the geographical pattern of Labor Rates that should show whether these data support either interpretation. is analysis will be explained, its method discussed and justified and the findings revealed and interpreted. Introduction Auto insurers have placed the collision industry in a price-profit squeeze over reimbursements by exercising control over auto body appraisers and service providers. A systematic corruption of free market forces has raised auto insurers’ profits at the expense of consumer rights, safety and collision repair providers, who have long argued that anticompetitive practices have poisoned their market domain and enabled auto insurers to underpay them for repairs. Auto insurers say theirs is an eﬃcient

solution to controlling the costs of repair, with savings keeping premiums down. Collision repairers suggest that auto insurers’ control of this industry neither reduces premiums nor benefits consumers. ese opposing views can be called the auto insurers’ “eﬃciency argument” and the collision industry’s “market power interpretation” of these patterns. e purpose of this article is to explore some questions surrounding this controversy and how it might be understood through reason and data-based analysis. First, I will set these issues in context with a review of various cases brought to address such concerns. e 1963 Consent Decree On November 27, 1963, just a few days after the assassination of President John F. Kennedy, his brother Robert – as Attorney General – signed a Consent Decree with three auto insurance trade associations that barred the signatories from engaging in conduct where they agreed between themselves that their members would use only certain appraisal firms in specified geographic areas where those appraisal firms agreed to write their appraisals at Labor Rates set by the

e 1963 Consent Decree states that “[t]he Judgment commands, among other things, that the three defendants, their oﬃcers, directors, agents, servants, employees, committees, successors and assigns must […] cancel and abandon the Independent Appraisal Plan, which […] is hereby terminated.” is comprehensive list of associates does not specify members, so the confusion over its scope is understandable. However, the sorts of behavior ruled out by this agreement are not ambiguous; the only issue left open is whether auto insurers must act in concert to violate these provisions. e types of behavior prohibited by this Decree are listed below. e defendants and their associates were no longer permitted to engage in the following activities:

associations, use parts specified by the associations and follow other standards set by those groups. is 1963 Consent Decree resolved a significant antitrust case brought by the US Department of Justice (DOJ) against the auto insurance industry for collusive anticompetitive practices determined to violate US antitrust laws. In April 2019, the DOJ announced plans to review nearly 1,300 antitrust judgments enacted without end dates. Four months later, the 1963 Consent Decree was identified as part of the larger de-regulatory initiative. AASP/MA and several other auto body associations across the country pushed for support of the document. is extensive campaign included members of the AASP/MA community writing and/or signing on to letters to key lawmakers. is went a long way in the DOJ’s decision to keep the document in place. Many members of the collision repair industry believe this Decree barred auto insurers from exercising any control over collision repair appraisers and service providers, and that was my understanding as well. But the signatories of this Decree were trade associations and not their members. I am told that this agreement therefore restricts only the defendants so that their auto insurer members are not touched by these rules.

(1) sponsoring, endorsing or otherwise recommending any appraiser of damage to automotive vehicles; (2) directing, advising or otherwise suggesting that any person or firm do business or refuse to do business with (a) any appraiser of damage to automotive vehicles with respect to the appraisal of such damage, or (b) any independent or dealer franchised automotive repair shop with respect to the repair of damage to automotive vehicles; (3) exercising any control over the activities of any appraiser of damage to automotive vehicles; (4) allocating or dividing customers, territories, markets or business among any appraisers of damage to automotive vehicles; or (5) fixing, establishing, maintaining or otherwise controlling the prices to be paid for the appraisal of damage to automotive vehicles, or to be charged by independent or dealer franchised automotive repair shops for the repair of damage to automotive vehicles or for replacement parts or labor in connection therewith, whether by coercion, boycott or intimidation or by the use of flat rate or parts manuals or otherwise. ese restrictions suggest the right solution to a difficult problem, but they evidently only apply to collusion. An individual auto insurer remains free to exercise strict control over collision repair appraisers and service providers, and they continue to do so “independently” of each other. A “Hands-Off!” policy is a way to resolve these industry ills. Otherwise, the problems remain difficult to control. Without such rules, auto insurers will be unable to keep their tentacles out of this process. So, individual auto insurers continue to interfere with the collision repair market to limit reimbursements by controlling appraisals and

depressing prices, profits and Labor Rates. Why these activities – so oﬀensive when used by trade associations – are acceptable when done by individual firms is further addressed below. e ABAC Case Against the Hartford and Other Litigation e 1963 Consent Decree was cited in the July 2003 complaint by the Auto Body Association of Connecticut (ABAC) against the Hartford, which was sort of like suing God in a heavenly venue! I was retained in 2005 to conduct an economic analysis and submit a report in support of the ABAC’s motion for class certification in this statewide case. I showed how damages could be assessed based on Hartford data to meet some of the statutory requirements for class certification. When the Superior Court ruled in our favor on August 30, 2006, it quoted the 1963 Consent Decree. Hartford’s appeal went straight to the Connecticut State Supreme Court, which quoted the same section in its June 3, 2008 ruling. ey identified the Consent Decree as “well-established federal policy regulating the auto body repair industry.” In many other cases on which I have served as an expert, the 1963 Consent Decree has been cited and quoted, both in complaints and my own reports on economic losses stemming from auto insurers’ practices, both (a) of illegally steering collision repair work away from independent providers into their own network shops, and (b) of suppressing Labor Rates through an abuse of monopsony power against collision repairers. “Monopsony,” which may be an unfamiliar term to many, is market power used against buyers by a single seller, where sellers can take advantage of buyers with limited choices by jacking up prices. “Monopsony” is market power used against suppliers by buyers, who take advantage of suppliers with limited choices by squeezing payments. Both involve abuses at the expense of consumers and/or suppliers based on their limited options. In many of my cases, the market power abuse was framed in the context of vehicle owners’ collision repair decisions. e McCarran-Ferguson Act exempts insurers from antitrust law for “the business of insurance” (but not for “insurers’ other business”), so auto insurers are not protected in their relation to collision repair work. Antitrust exposure relates to market power resulting from market concentration. e

Continued on page 40

New England Automotive Report January 2021 21

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24 January 2021

New England Automotive Report

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New England Automotive Report January 2021 25

[LOCAL] NEWS

ADALB Debates Parts Receipts, “Good Moral Character” of License Applicants insurers from demanding part receipts from shops during the repair During its November 18 teleconference meeting, the Auto supplement process. e proposed Advisory Ruling reads in part: “At Damage Appraiser Licensing Board (ADALB) discussed (among other no time will the decision to make payment for parts topics) a proposal by Board member William be made based upon the submission of receipts.” Johnson to adopt a standard of review of applicants “At no time will Readers are encouraged to review the complete for motor vehicle damage appraiser licenses who the decision to make recording of this discussion for the points raised by disclose a criminal conviction or pending criminal payment for parts the collision repair and insurance representatives on action on their license application. Attention was devoted to the regulatory definition of “good moral be made based upon the Board. e November 18 teleconference meeting is character” and how the Board should address a the submission available in the Members Only section of situation where an applicant has a pending criminal of receipts.” aaspma.org. Information on upcoming meetings case where a conviction (if any) has yet to be (including their agendas) is available at determined. mass.gov/service-details/adalb-notices-of-meetings-and-agenda. Considerable discussion was also devoted to an Advisory Ruling proposed by Johnson that would reiterate state regulations that prevent

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28 January 2021

New England Automotive Report

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EXECUTIVE DIRECTOR’S MESSAGE Continued from page 11

[AASP/MA] FEATURE

to shops across the state to solicit contributions to the fund. We cannot do this without your support. Our efforts are for you. If you are reading this as a current member of AASP/MA, THANK YOU! If you are not a member, NOW is the time to join. You can make the decision to sit back and ride the coattails of those putting in the effort, energy and financial support OR take an active part in the success this industry is striving for and so richly deserves. Yes, AASP/MA will continue to fight for what is right for the consumer and our industry with or without your support, but that success will come sooner with your help. You may not feel you have anything “special” to contribute, but just like the folks who tossed their names in the ring to become AASP/MA directors, you do! Help us help you rather than just hanging on to our coattails and hoping things change. Change is coming! Be a participant and NOT an observer! In closing, I want to thank all the AASP/MA Board of Directors for their efforts during their past two-year term. I look forward to working with the Board of Directors as we continue our efforts to advance and protect the consumers and the collision repair industry. A very special “THANK YOU” to our outgoing president, Molly Brodeur, for her unwavering leadership and guidance through challenging times and changes during her tenure. We ALL owe her a great deal of appreciation. Wishing you and yours the very best in 2021. Stay safe and healthy.

NEAR: AASP/MA is in the process of wrapping up its latest Board elections as this conversation is taking place. What message or words of encouragement would you like to oﬀer the incoming members, especially the new president and vice president?

Continued from page 17

PROTECTING CONSUMERS AND THE COLLISION INDUSTRY

MASSACHUSETTS

AASP/MA EXECUTIVE DIRECTOR EVANGELOS “LUCKY” PAPAGEORG can be reached at (617) 574-0741 or lucky@aaspma.org

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New England Automotive Report

MB: Stay positive and keep the focus on what is best for the industry and consumers. You cannot run the association the way you run your business; it’s important to keep your personal feelings about particular issues out of the conversation and remember that we are representing the industry at-large and – most importantly – the motoring public. NEAR: What moment of your AASP/MA presidency will always stand out the most for you? MB: It’s tough to identify one moment, so I will say it revolves around transition. AASP/MA has had to pivot many times over the years, and leading the association with the help of our Board of Directors through those transitions is what I am most proud of. PROTECTING CONSUMERS AND THE COLLISION INDUSTRY

MASSACHUSETTS

Continued from page 18

[LOCAL] NEWS

vehicles, means that most members will be incurring substantial costs immediately in an attempt to comply with the law. And if an automaker cannot research, develop and implement the open-access, bidirectional platform required by the [ballot measure], then it could be subject to significant penalties for its vehicles sold in Massachusetts, whether directly through dealers or in the aftermarket.” e Massachusetts Right to Repair Coalition joins AASP/MA in

taking exception to the Alliance for Automotive Innovation’s lawsuit against Attorney General Healey. “After spending $26 million only to be resoundingly defeated at the ballot box, the big automakers still don’t get it,” comments Coalition Director Tommy Hickey. “eir baseless, anti-democratic lawsuit attempts to thwart the will of the voters and their customers, who voted by a 75 percent majority for Right to Repair.”

PROTECTING CONSUMERS AND THE COLLISION INDUSTRY

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[LEGAL] PERSPECTIVE By James A. Castleman, Esq.

Are Insurers Forcing Their Insureds to Play

Russian Roulette?

I shuddered when I read an article from Repairer Driven News (RDN) that someone recently emailed me. According to the piece, a California collision repair shop reported that State Farm had refused to allow for replacement of the steering box in a late-model BMW. e steering box apparently had been damaged, and a BMW bulletin directed that the steering box be replaced under the circumstances described in the article. Not only did the insurer refuse to pay for replacement of the steering box, but the insured also refused to pay out of their own pocket for the replacement. is put the repair shop in a diﬃcult position. If both the insurer and the insured were not going to pay for the replacement, and if the shop thought that this presented a significant danger, what could the shop do to protect itself from potential liability if the steering box failed? e first thing that came to my mind was, “Here is the John Eagle case all over again!” If the shop failed to replace the part and someone now got seriously injured as a result, would the shop be on the hook for the damages? As has been covered in prior columns, in Seebachan v. John Eagle Collision Ctr., a Texas collision repair shop panel-bonded a new roof onto a damaged Honda Fit rather than spot welding it as specified by Honda in its recommended procedures. As a result, when the vehicle was in a subsequent accident, its safety systems did not function as intended, and the occupants of the car suﬀered severe, life-altering injuries. e shop ignored Honda’s directive and instead used an adhesive. e shop did so at an ultimate cost of $31.5 million out of its own pocket as awarded by a jury after a trial of the matter. Background of the BMW Repair In the matter addressed in the RDN article, a 2017 BMW hit a pothole and sustained suspension damage. Even though there was no obvious exterior damage to the car’s steering box, BMW notes in its OEM repair procedures there still may be damage to the internal mechanisms of the steering box in these types of situations. e BMW 32 January 2021

New England Automotive Report

procedures identify various items that would indicate that there is internal damage that can result in failure of the steering system, dictating replacement of the steering box. Included items, among many others, are damage to wheels and struts, particularly when there are “significant deviations of camber/track values” that accompany these damages. ere was, in fact, substantial visible damage to various BMW parts, including a knuckle, a strut, a hub and a wheel. State Farm acknowledged all of these damages and approved and paid for replacement of these parts. After repairs were made, however, an alignment check showed that the front camber and thrust angle did not meet BMW’s specifications. Under these circumstances, BMW’s stated repair procedures indicate that there was internal damage and that the steering box must be replaced. Despite all of this, and despite being presented with BMW’s stated procedures, State Farm dragged the matter out for over a month and then outright refused to approve or pay for replacement of the steering box, hanging its hat on there being no visible exterior damage to the steering box. Further according to the RDN article, the repair shop found that, after repair, “the steering felt notchy and heavy.” e shop asked State Farm to send out a representative to confirm this for themselves, but the insurer refused. e shop also wrote to the California Department of Insurance, asking them to step in. e Department declined to get involved, saying that they did not have “the authority to determine how much should be paid on a claim.” Instead, they suggested that the shop sue State Farm in court to try to get paid. What Is a Repair Shop Supposed to Do in is Situation? I see four possible avenues that this repair shop could have followed or that any repair shop could follow in these circumstances. None of these are great. e first avenue, which is the one that this repair shop followed, is

to get its customer and the insurer to acknowledge the shop’s recommendation and agree to release the shop from liability for not making the subject repair. In the matter reported in RDN, the shop had a form that quoted BMW’s applicable repair directive and listed the aﬀected parts. e form had the customer and the insurer acknowledge that the listed parts were deemed to be damaged, that the BMW directive requires the steering box to be replaced under the circumstances and that the customer and insurer had chosen not to have the steering box replaced. It goes on to say that the customer and insurer assume full and sole responsibility for the continued operation of the vehicle, “including any technical, mechanical or legal consequences.” is approach actually may be the best choice for a shop, but it is far from ideal. What if the insurer or customer refuses to sign the shop’s form? In the BMW case, the customer did sign, but the insurer refused to – and I would suspect that most insurers would also refuse. If the customer or insurer does not sign, then the shop could still deliver a notice to the customer and insurer, notifying them of the issues, describing what happened and disclaiming liability for not replacing the part. Quite frankly, there would still be potential liability for the shop for releasing a dangerous vehicle to its less mechanically savvy customer. Page 1

And what happens when the customer sells the car to some unsuspecting third party? Is the repair shop liable to that person? In Massachusetts, all service providers are required to perform their work in a good and workmanlike manner. Does this occur if the steering box is not replaced when the shop knows that it needs to be replaced? A second avenue is to replace the steering box and just absorb the cost. is would be the best choice for eliminating the shop’s liability, since the steering box actually would be replaced. But this is hardly a good choice, because the shop ends up paying out of its own pocket for the part replacement. How much money can you lose on repair jobs before you go out of business? A third avenue would be for the shop to take an “Assignment of Rights” from its customer and then proceed to sue the insurer for its charges for the replacement. is could be in conjunction with the shop first agreeing to replace the part without charging the customer for it in exchange for the customer assigning their rights against their insurer to the shop. Considering the time, eﬀort and expense involved and not knowing if you would win in court, this avenue is hardly ideal. On the other hand, there is the possibility of being awarded up to three times your damages plus attorney’s fees under a consumer protection statute, especially since the BMW directive requires replacement of the part. But this result is not guaranteed.

Continued on page 36

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ToyotaPartsAndService.com 34 January 2021

New England Automotive Report

New England Automotive Report January 2021 35

[LEGAL] PERSPECTIVE Continued from page 33

A fourth avenue is to refuse the job altogether. ere are several obvious problems with this choice: How do you know that the insurer is not going to pay for the replacement of the part before the job even starts and before you really know if there is a problem? Do you really want to lose the job altogether rather than start the job and try to get paid for the part? Will this cause ill will with the customer and hurt your shop’s reputation? What a shop chooses to do is its own choice, and its decision may

depend on the job itself. Is there enough profit in the repair to take a shot? Is it likely that they can cajole the insurer into paying? Is the customer and/or insurer so difficult to deal with that it is not worth the effort? What is the actual safety risk for this particular repair? Conclusion I understand that the issue of whether OEM repair procedures need to be performed has become a difficult one to deal with in many

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New England Automotive Report

[LEGAL] PERSPECTIVE situations, particularly if there are safety concerns. If the insurer will not agree to pay for the OEM-recommended procedures, then does a repair shop perform them anyway and not get paid? Or do they not perform those repairs and accept the liability risk? In my opinion, perhaps it is the vehicle owner who is the party to the transaction that may be hurt the most as the result of their insurer putting them into a position of having to make an impossible decision. If the insurer is not going to pay for the repair, does the vehicle owner really want to dig into their own pocket to pay for it? If not, are they willing to accept the safety risk to themselves, their families and others? Are they going to be the lucky ones in this game of Russian roulette who avoid part failure and serious injury? Or are they going to be the ones who lose the game and suﬀer serious injury or death when the part fails? I hope that I never have to make that choice.

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New England Automotive Report January 2021 39

[COVER] STORY

Continued from page 21

larger the market share, the more potential for market power abuse. How do these laws apply here? Auto insurers insist – within the “eﬃciency argument” – that they have no market power; the concentration of firms in their industry is not high enough for any of them to control auto insurance sales or prices. However, that is not the relevant market. e market for sales of auto insurance – where “the business of insurance” takes place – is not the collision repair market of “insurers’ other business” which is not exempt. What is an auto insurer’s market share in this specific context? In a collision repair decision, vehicle owners cannot change their insurers at that time in the context of that decision. So, an auto insurer controls 100 percent of the “market” defined as that of its own policyholders, who are their own auto insurer’s captive for the purposes of that decision. Faced with an unexpected need for collision repairs, an auto insurance policyholder can be manipulated by their insurer without any immediate danger of that customer switching to another insurer regarding those repairs. e insurer’s market power is absolute in this setting.

So, auto insurers’ control over its policyholders’ collision repair choices – even with no collusion – still involves the presence of market power and so a potential for its abuse. at it may be monopsony power offers no relief; an abuse of monopsony power is just as harmful and illegal as monopoly power abuse. e difference is in diagnosis: Monopsony looks like “efficiency” as it cuts supplier payments rather than raising consumer prices. Conclusion So, we have framed some issues around the auto insurers’ “efficiency argument” versus the collision repair industry’s “market power interpretation” of facts and behavior related to repair services. Auto insurers claim that lower prices and costs show efficiency. Collision repairers see themselves as victims of market power abuse. e next three parts of this report will address some issues bearing on this situation. In my next article, I will explore what the level of Labor Rates would be in a fully free, uncontrolled market domain under restrictions specified in the 1963 Consent Decree applied to any individual auto insurance company.

From there, I will look closely into both the auto insurers’ “eﬃciency argument” and the collision repair industry’s “market power interpretation” of this entire process. ese two positions will be outlined, weighed and considered in detail, exploring the claims on each side. en, I will report on new data and their relevance to these issues, serving to test each side on the facts. is study will lend some insight to this industry and examine evidence supporting one and discounting the other of the opposing claims for eﬃciency or market power abuse. PROTECTING CONSUMERS AND THE COLLISION INDUSTRY

MASSACHUSETTS

Fred Jennings, Jr. of EconoLogistics (“Consultants to Business and Law”) can be contacted at (978) 356-2188 (for messages only), (617) 605-3150 (direct line) and econologistics@yahoo.com.

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40 January 2021

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