New England Automotive Report January 2017

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AUT M TIVE Serving the New England Collision and Mechanical Repair Industry

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MASSACHUSETTS BUILDING THE SUCCESS OF THE AUTO REPAIR INDUSTRY

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January 2017 • Volume 15, No. 1

CONTENTS

DEPARTMENTS PRESIDENT’S MESSAGE by Molly Brodeur 8 | The Technology Train

NEWS FROM HONDA by Gary Ledoux 18 | ProFirst Helps Shops Connect with Honda/Acura Owners

LOCAL NEWS 22 | Shop/Insurer Conflicts Explored at December ADALB 28 | Billerica Student Hits the National Scene

NATIONAL NEWS 34 | AASP/NJ to Auction 40th Anniversary Nub-Customized Harley-Davidson at NORTHEAST® 2017

LEGAL PERSPECTIVE by James A. Castleman, Esq. 38 | Assignments of Rights: Don’t Let Insurers Pull the Wool Over Your Eyes!

ALSO THIS ISSUE 10 | A MESSAGE FROM THE EXECUTIVE DIRECTOR

COVER STORY

13 | TRAINING OPPORTUNITIES: I-CAR CALENDAR OF EVENTS

by Joel Gausten

14 | AASP/MA SPONSORS 15 | AASP/MA STATEWIDE MEETING FLYER 39 | FOR SALE 48 | AASP/MA CLASSIFIED FORM 51 | AASP/MA MEMBERSHIP APPLICATION 54 | INDEX OF ADVERTISERS

43 | DEFENDING OEM PROCEDURES: SHOPS FIGHT TO PROTECT THEIR CUSTOMERS New England Automotive Report

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PRESIDENT’S MESSAGE

THE TECHNOLOGY TRAIN MOLLY BRODEUR

right now. We want to help you navigate what’s sure to be a turbulent ride into the future, and we are ready to arm you with tools you need through training, assistance with the Legislature, information and more. We’re committed to making sure no member shop is left behind in the wake of the technology train, because it’s coming at our industry at a breakneck pace. It’s not stopping, and it’s not slowing down. And without a partner like AASP/MA to help you along the way, you may get left in the dust.

As an industry, we are no strangers to change. Of course, the change to a unibody frame back in the ’80s was a huge thing, and now we’re dealing with waterborne paint, aluminum and high-strength advanced materials. In 2017, however, the technology on these vehicles is like nothing we’ve seen before. It has brought us as repairers to a breaking point where we’ve got to either do whatever it takes to remain viable and necessary if we want to survive into the future, or simply get left behind.

There is no longer any in-between.

Many repairers have made the commitment to establish themselves as specialists, and that’s no small feat. It’s a lot to ask of any business owner to be all-in on continuously reinventing one’s procedures and SOPs (and to invest their time, money and resources into staying ahead of the curve). But that’s where associations like AASP/MA come in. We are the resource that shops need

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AASP/MA PRESIDENT MOLLY BRODEUR is the Chief Operating Officer of Al Brodeur's Auto Body in Marlborough, MA. She can be reached at (508) 485-1082 or molly@albrodeur.com.

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AUT M TIVE STAFF

AASP/MA EXECUTIVE COMMITTEE PRESIDENT

PUBLISHER

CREATIVE DIRECTOR

Thomas Greco (thomas@grecopublishing.com)

Lea Velocci (lea@grecopublishing.com)

SALES DIRECTOR

EDITORIAL ASSISTANT

VICE PRESIDENT

Alicia Figurelli (alicia@grecopublishing.com)

Chloe Durante (chloe@grecopublishing.com)

Adam Ioakim

EDITORIAL DIRECTOR

PRODUCTION

SECRETARY

Joel Gausten (joel@grecopublishing.com)

Donna Greco (donna@grecopublishing.com)

Ray Belsito, Jr.

Molly Brodeur

TREASURER PUBLISHED BY: Thomas Greco Publishing, Inc. 244 Chestnut Street, Suite 202, Nutley, NJ 07110 Corporate: (973) 667-6922 / FAX: (973) 235-1963

Kevin Gallerani IMMEDIATE PAST PRESIDENT Paul Hendricks

AASP/MA STATEWIDE DIRECTORS COLLISION DIRECTOR Rick Starbard www.grecopublishing.com 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 © 2017 by Thomas Greco Publishing, Inc. Images courtesy of www.istockphoto.com

AASP/MA DIRECTORS Darlene Andrade Matthew Ciaschini

MASSACHUSETTS BUILDING THE SUCCESS OF THE AUTO REPAIR INDUSTRY

Gary Cloutier

AASP/MA EXECUTIVE DIRECTOR

Alex Falzone

Jillian M. Zywien 12 Post Office Square, 6th Floor Boston, MA 02109 Phone: (617) 574-0741 Fax: (617) 695-0173 Email: jzywien@aaspma.org

Joshua Fuller Kevin Kyes Peter Langone

WWW.AASPMA.ORG

Frank Patterson Mike Penacho

8 January 2017

New England Automotive Report

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New England Automotive Report

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A MESSAGE FROM THE EXECUTIVE DIRECTOR

BUILDING A SUCCESSFUL 2017 JILLIAN ZYWIEN

Dear Members,

As you are aware, one of AASP/MA’s visions is to improve the lives of our members by making them more successful. This year, we intend to do that through the new educational opportunities we have created for members to better their businesses.

This month, we are hosting our first Statewide Meeting of the year in Raynham. One of the most important issues being discussed in the industry is preand post-repair scanning. In fact, the Society of Collision Repair Specialists (SCRS) hosted several seminars with OEMs, manufacturers and equipment suppliers on this very issue throughout the recent SEMA Show. It has become a hot-button issue for our members, and AASP/MA is answering the call.

On January 24, we will host our “Is Your Shop Prepared for Pre and Post Scanning?” seminar featuring Jake Rodenroth, director of client services for Collision Diagnostic Services (CDS) and a nationally recognized industry expert on this subject matter. Shops who attend this important meeting will learn how to integrate scanning into their repair plan, how to get insurers to pay for their time and equipment investment and about new and emerging technologies in the field. Jake will also be providing a demo on an actual vehicle.

As you are aware, the ADALB approved a new complaint process last year to streamline complaints and create better transparency. Since the implementation of the new process, AASP/MA has filed several complaints on behalf of our members, and these have brought real results. When the results become public, we will be reporting them to our members. As an answer to the ADALB’s new complaint process, the association will host a seminar in March that will specifically focus on what it means for appraisers who wish to file a complaint. The discussion will cover how (and what you’ll need) to file a valid complaint and the strategic steps all shops should be taking throughout their repair process. We will also discuss the recently filed AIB standard policy. Speakers will include a member of the

ADALB as well as AASP/MA representatives. You do not want to miss this event. Additional details will be available on our website, aaspma.org, and in future issues of NEAR. We know how valuable your time is as a shop owner, and this year we want to provide opportunities for you to get out of your shop to learn about ways to improve your bottom line. We also want to provide ways for you to interact with fellow shops owners, your Board of Directors, vendor partners and employees. To that end, this year we are hosting events in a more relaxed environment. We understand the long hours you and your employees put in; at the end of the day, you just want to kick back with a beer and burger. So do I! One of the reasons we host events is to create a community among the membership. We look forward to strengthening our community through our events, which include our upcoming BBQ in May. It is my goal (and the goal of your Board members) to continue to build the success of the auto repair industry.

If you are not a member of the association, I would strongly encourage you to attend one of our upcoming meetings. We offer a non-member rate for our seminars and events. If you commit to joining, we will extend the member price to you and members of your shop. I know if you attend just one meeting, you will understand the value of belonging to this great organization. If you commit to being an active participant in AASP/MA, you will better your business, strengthen our voice and become a member of a great industry community.

I look forward to seeing you throughout 2017 and encourage your participation and support. To build the success of the auto repair industry, we need your help.

Join us today!

Sincerely,

Jillian Zywien, Executive Director

MASSACHUSETTS BUILDING THE SUCCESS OF THE AUTO REPAIR INDUSTRY

AASP/MA EXECUTIVE DIRECTOR JILLIAN ZYWIEN has been a senior account executive at Lynch Associates for over seven years.

She can be reached at (617) 574-0741 or via email at jzywien@aaspma.org.

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12 January 2017

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in Massachusetts January 5, 2017 Vehicle Technology & Trends 2016 Fuller Auto Body, Auburn, MA

January 18, 2017 Automotive Foams Fuller Auto Body, Auburn, MA

January 10, 2017 Aluminum Exterior Panel Repair & Replacement Fuller Auto Body, Auburn, MA

January 24, 2017 Understanding the Cycle Time Process Fuller Auto Body, Auburn, MA

January 11, 2017 Adhesive Bonding Assabet Valley Regional Technical High School, Marlborough, MA

January 26, 2017 Hazardous Materials, Personal Safety & Refinish Safety Fuller Auto Body, Auburn, MA

January 12, 2017 Corrosion Protection IRA Collision Center, Danvers, MA

For more information, visit i-car.com

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AASP/MA ASKS YOU TO PLEASE SUPPORT OUR SPONSORS!

AASP/MA NEWSLETTER SPONSOR

WOLPERT INSURANCE

Contact AASP/MA at (617) 574-0741 / jzywien@aaspma.org for information on becoming an AASP/MA sponsor!

14 January 2017

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16 January 2017

New Country BMW 1 Weston Park Ave. Hartford, CT 06120 PH: 860-240-7881 FAX: 860-240-7873 www.newcountrybmw.com

New England Automotive Report

BMW of Stratham 71 Portsmouth Avenue Stratham, NH 03885 PH: 603-772-0000 FAX: 603-772-9436 www.bmwofstratham.com

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BMW of Cape Cod 500 Yarmouth Road Hyannis, MA 02601 PH: 508-815-5500 FAX: 508-790-3551 www.bmwofcapecod.com

Wagner BMW of Shrewsbury 770 Boston Turnpike Shrewsbury, MA 01545-3202 PH: 866-438-3997 FAX: 508-925-2291 www.wagnerbmwofshrewsbury.com

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[NEWS FROM] HONDA

By Gary Ledoux

PRoFIRSt HElPS SHoPS CoNNECt wItH HoNdA/ACURA owNERS It’s no secret. Honda and Acura owners, with an estimated 12 million of them presently on the road, are some of the most loyal and ardent fans of any vehicle brand. They have come to trust the quality and reliability of the Honda product. They know when they bring their car to a Honda or Acura dealer for mechanical service, that dealer stands ready with trained, competent technicians using the latest tools and equipment and access to current repair information.

Smart independent body shop owners and Honda and Acura dealership body shop managers have realized this, and they have signed on with American Honda’s ProFirst certified body shop program to complete the circle of service and collision repair for Honda and Acura owners. We often hear from ProFirst shop owners who tell us that their Honda and Acura customers chose their shop because it was associated with the Honda brand. Consumers know they will receive a quality repair and good experience with that shop.

ProFirst connects American Honda with Honda and Acura owners and quality collision repair shops.

Here’s what ProFirst shop owners had to say about being a ProFirst shop:

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“Being a Honda ProFirst shop gives us the information to properly fix customers’ vehicles, and it gives the owner of the vehicle a shop that can properly fix Honda and Acura vehicles. That provides us with a competitive advantage over other shops.”

V & F Auto Body of Keyport Keyport, NJ “Being a Honda ProFirst certified collision shop has many benefits.

First and foremost, it is a great selling tool for our customers to put their mind at ease that we are performing the proper repairs using the proper tools, equipment and training to restore their vehicle to pre-accident condition. We also have access to the factory training manuals with invaluable information. Lastly, we have a way to contact a representative from Honda to assist us with any concerns and updates in the world of Honda Collision Repair.”

Ray’s CARSTAR Auto Body Bristol, CT

“The high standards set by the Honda ProFirst program have positioned H&V as a point of difference in our market. We expect that as the industry changes with advances in vehicle telematics, the Honda program will continue to offer H&V a competitive edge and a strong reason for customers to continue to trust [us]. Thank you, Honda, for making us the go-to collision repair provider in upstate New York!”

H & V Collision Center Six ProFirst locations in the Schenectady / Albany, NY area

Is your shop ready for the next step? Is your shop ready for ProFirst? Learn more at profirstinfo.honda.com or contact us at profirst@ahm.honda.com.

New England Automotive Report

MASSACHUSETTS BUILDING THE SUCCESS OF THE AUTO REPAIR INDUSTRY

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Audi Natick 549 Worcester Street Natick, MA 01760 www.bernardiaudi.com 800.247.3033 Fax: 508.651.6841

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Audi Shrewsbury 780 Boston Turnpike Shrewsbury, MA 01545 508.581.5880 Fax: 508.581.5880 email: parts@wagnermotors.com www.audishrewsbury.com

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

Mattie Audi 80 William S. Canning Blvd.

Fall River, MA 02721 800.678.0914 Fax: 508.730.1283 www.mattieaudi.com

Audi Cape Cod 25 Falmouth Road (at the Hyannis Airport Rotary) Hyannis, MA 02601 PH: 508.815.5600 FAX: 508.568.9410 www.audicapecod.com

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[LOCAL] NEWS by Joel Gausten AASP/MA’s Peter D’Agostino shared members’ concerns with the ADALB.

SHoP/INSURER CoNFlICtS ExPloREd At dECEMbER AdAlb For their final meeting of 2016, the Auto Damage Appraiser Licensing Board (ADALB) left their usual meeting spot at the Division of Insurance in Boston and convened at the library of Pathfinder Regional Vocational Technical High School in Palmer. The December 6 meeting, which saw Board member Joseph Coyne, Jr. serve as chairman in place of an absent Gilbert Cox, covered a variety of topics of importance to the AASP/MA community.

Which State SetS the RuleS? ADALB member and collision repair business owner Bill Johnson asked his fellow Board participants for their perspectives on whether a vehicle with an insurance policy written in another state is subject to the Massachusetts rules and rates when it is repaired in the Commonwealth.

Johnson’s inquiry stemmed from a recent issue he encountered when a New York-insured vehicle arrived at his shop. Johnson noted that he clashed with the vehicle owner's insurer over establishing the job’s Labor Rate, which is considerably higher in New York than what he called “the fixed rate of the referral shops” in Massachusetts. (Johnson added that he is not part of any repair referral network with an insurer.)

“We said [to the insurer], ‘Hey, your policyholder pays a premium for x; we feel we should get x per hour because that’s what your policyholder is paying. [They said], ‘No, no, no. This is in Massachusetts; we have to follow Massachusetts rules and regulations.’ Fast-forward two weeks later, [and] negotiations weren’t going well.

They didn’t want to pay [for] things, and they said, ‘We’re 22 January 2017

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going to total it.’ We said the car is not a total, [but they said], ‘Oh, yeah, by New York rules and regulations, we can total it at 75 percent’…They want to take a bite of the apple from whichever side is better for them…If the policyholder is paying x amount of premium and that’s what the Labor Rate is in that state, it’s almost like they’re cheating the consumer because they’re not getting the full value of what the policy is.”

Speaking on behalf of his company, Plymouth Rock Assurance, Board member Lyle Pare shed light on how he would typically handle a situation of this nature.

“If [a policyholder] is in a collision in New York and the car needs to be towed, at that point we wouldn’t require him to be towed to Massachusetts to get it fixed; we’d negotiate the claim with that New York shop. But when somebody has a [Massachusetts] auto policy and [is] paying Massachusetts policy rates and they drive the vehicle to New York where Labor Rates are higher, we don’t pay that difference.”

Coyne offered a perspective on how this would normally be addressed by his company, Home & Auto Appraisal Bureau Inc. “As an independent, we represent companies from out of state. A lot of times, a car will come in here from New York that was written in New York for $52 an hour, and when we write the supplement, we write [it] at [Massachusetts] rates.”

While the topic provided hearty food for thought, the Board acknowledged that there is currently no definitive rule in Massachusetts regulations to address this issue.

FRiction oveR Field noteS AASP/MA Executive Team Member Peter D’Agostino approached the Board to inform them that the association has recently received a number of complaints from shops in the North Shore, the South Shore and Western Massachusetts that are receiving original insurer appraisals that are drastically different from the signed field notes first left at the shop at the start of a repair. He added that this appears to be more of an issue with local companies than with the national auto insurers operating in Massachusetts.

When used properly, signed field notes can play an important role in the collision repair process, as outlined in 212 CMR 2.04: The appraiser shall mail, fax or electronically transmit the completed appraisal within five business days of the assignment, or at the discretion of the repair shop, shall leave a signed copy of field notes, with the completed appraisal to be mailed or faxed within five business days of the assignment. The repair shop may also require a completed appraisal at the time the vehicle is viewed. If the repair shop requires a completed appraisal, then the repair shop shall make available desk space, phone facilities, calculator and necessary manuals.

Despite the clarity of the regulations, D’Agostino noted that considerable confusion appears to exist out in the field with respect to the appropriate use of field notes.

“The Board’s name was used in vain [by an appraiser, who said], ‘The Board ruled that I don’t have to give you an original appraisal at the time of viewing; I only have to do signed field notes.’ That’s not my reading of the regs.”

D’Agostino’s concerns over altered field notes inspired a host of opinions from the Board members in attendance.

“I think if you leave signed field notes and go back and change them on the appraisal, that’s the same as handing you an appraisal and going back and changing [it],” opined Board member and Massachusetts shop owner Rick Starbard.

Coyne cautioned that changing field notes could lead to a situation where a shop moves forward on a job after receiving assurances from an appraiser that they would receive a certain amount of money, only to get hundreds less a few days later because the field notes were altered in the interim.

“The next time around, that car is going to sit in the corner six or seven days until [the repairer] gets his paperwork,” he said.

Pare shared a past experience where the owner of an appraisal service changed his appraisal after reviewing it and later sent it to the shop without Pare’s knowledge. Not surprisingly, this resulted in him getting an angry call from the shop.

Johnson was clear in his position on the topic, encouraging audience members to “file a complaint against an appraiser who changes, substantially, the signed field notes.” negative time FoR WoRk PeRFoRmed Later in the meeting, Starbard noted an upswing in recent complaints regarding partial refinish.

“A panel’s going to be blended, so [insurers] cut the paint time in half and then pay what they consider full clear,” he explained. “I think it’s something that we need to address now, because we may all have our own opinions [on] it. Mine is that if there is any damage on that panel, then it’s full paint time.”

Starbard stressed that this is a growing problem for Massachusetts repairers.

“We saw one [situation] where, by the time they got done with the partial refinish and overlaps and everything else, the guy actually got negative time to paint that panel.

Negative time, and then dollars-times-hours on the paint and materials, so he actually had to go into his pocket to be able to refinish that part…If I see [a complaint about partial refinish] come down the line, you know where I stand.”

In other news, the Board unanimously voted to approve an Order to Show Cause in Complaint 2016-4 against licensed appraisers James Steere and Paul Horton and The Hanover Insurance Company (as the responsible insurer).

The Order will now be forwarded to the general counsel for the Division of Insurance with the request for an assignment of legal counsel to file, docket and serve it on the respondents per Massachusetts regulations. Owen Gallagher, counsel for The Hanover Insurance Company and its appraiser employees, argued that many of the allegations contained in the proposed Order could result in the Board overreaching their jurisdiction. In response, Johnson reasoned that the Order could be modified or negotiated at a later date despite being approved at the meeting.

Videos of this and other recent ADALB meetings are available in the Members Only section of aaspma.com. Information on upcoming ADALB meetings and events is available at tinyurl.com/hngtb94.

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[LOCAL]NEWS By Joel Gausten

bIllERICA StUdENt HItS tHE NAtIoNAl

SCENE A

Maren Williams is well on her way to a successful career in refinishing.

senior at Shawsheen Valley Regional Vocational Technical High School in Billerica, Maren Williams has wowed instructors and fellow students alike with her exceptional refinishing skills and industrious nature.

Williams’ love of cars came from her father, an avid auto enthusiast known for his prized ’73 Dodge Charger.

“He talked about it and loved it,” she recalls. “It just kind of rubbed off on me, because I always wanted to fix it and drive it myself.”

By the end of her freshman year at Shawsheen, Williams knew she would be pursuing a career in this field.

“Restoration has been my dream since I first got into the industry. I love taking old things and making them look how they were when they were first made.”

Shawsheen Tech Lead Collision Repair Instructor Dennis Reppucci has been continually impressed with Williams’ work.

“She was somewhat advanced in certain areas,” he says of her history in the class. “If [other students] had issues and questions, sometimes they’d actually go to her before they’d come to the instructor.”

Last June, Williams was one of 13 Shawsheen Tech students who traveled to Louisville, KY to compete in the 2016 SkillsUSA National Leadership and Skills Conference (NLSC). In addition to the intense refinishing competition, Williams was awed by the sights around her.

“It was very overwhelming. The Expo Center that [the competition] is held in is enormous; I’ve never experienced anything like that before. But we got a lot of time before the day of the competition to be in the areas and see what we were 28 January 2017

actually going to be doing. It calmed [my] nerves a little bit being able to see where we’d be and who we’d be around.”

When all was said and done, she placed sixth out of 38 competitors.

Reppucci says that her talents at the national event were matched by the maturity and self-confidence she displayed when speaking with some of the industry personnel who were also in attendance.

“She did quite a lot of networking while she was in Kentucky, which surprised me. One day, [the competitors] had to meet employers, and she actually spoke with somebody at 3M. She impressed the woman at 3M so much that she stood and made a whole page of notes about Maren and gave her a contact [at the company] to speak to.”

In addition to her academic responsibilities at Shawsheen Valley Tech, Williams is currently employed at The Bowtie Shop, a Billerica-based facility focused heavily on the restoration of antique Corvettes. At the time of our interview, she was also applying to seven different schools to study chemical engineering.

“I’d like to be a part of a paint company, re-designing and maybe making my own paints,” she says.

With schools throughout the Commonwealth gearing up for another round of SkillsUSA competitions, she has some useful words of advice to this year’s competitors.

“Definitely go to have a good time.

Don’t focus so much on placing, because your nerves will get the best of you.”

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MASSACHUSETTS BUILDING THE SUCCESS OF THE AUTO REPAIR INDUSTRY

Williams competed at this year’s SkillsUSA Nationals in Louisville, KY.

One of Williams’ many automotive projects

Williams recently painted this ’56 Chevy pickup.

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Contact these Ford or Lincoln Mercury dealers for all your parts needs:

IMPERIAL FORD 6 UXBRIDGE ROAD MENDON, MA 01756 Toll Free Parts: 877-272-0332 Toll Free Fax: 877-800-6316 E-mail: johnl@imperialcars.com First Time Customers call John

© 2017, Ford Motor Company

SARAT FORD LINCOLN MERCURY 245 SPRINGFIELD ST. AGAWAM, MA 01001 413-786-0430 FAX:413-789-3715 www.saratford.com

SENTRY FORD LINCOLN 4100 MYSTIC VALLEY PARKWAY MEDFORD, MA 02155 PARTS: 617-506-6309 FAX: 781-874-9934 E-mail: pnewell@sentryautogroup.com

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[LOCAL] NEWS

AASP/NJ to AUCtIoN 40tH ANNIvERSARy NUb-CUStoMIzEd HARlEy-dAvIdSoN At NoRtHEASt® 2017 The Alliance of Automotive Service Providers of New Jersey (AASP/NJ) is proud to announce that they will be auctioning a customized 2017 Harley-Davidson Softail Slim motorcycle at the 40th annual NORTHEAST Automotive Services Show, held March 17-19 at the Meadowlands Exposition Center in Secaucus, NJ. The bike will be displayed at the AASP/NJ booth, where two of the industry’s most talented artists will finish the customization on the show floor.

AASP/NJ Board member Dave Laganella of Peters Body & Fender (Oakland, NJ) originally came up with the idea to bring the motorcycle to the NORTHEAST Show.

“Every year, we have seen the show grow more and more.

This year, I wanted to bring attendees to the show with something different. I know that members of our industry really like to watch cars and bikes get built, so I thought doing some type of build or customizing at the show would really bring in a crowd.”

Every single piece of metal that could be customized was sent off to industry legend Nub of Nub Grafix (Walden, NY) to give the bike a totally revamped custom paint look in support of

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To find out more about how you can be a part of the NORTHEAST 2017 Automotive Services Show, visit aaspnjnortheast.com.

For more information about AASP/NJ, visit aaspnj.org.

NORTHEAST’s 40th anniversary. Jeff McDowell, AASP/NJ president, is excited to celebrate this milestone with his peers.

“The idea to customize a motorcycle in conjunction with NORTHEAST 2017, to me, symbolizes the continuous evolution of our flagship event. Last year, Nub and Javier Soto were on-site at NORTHEAST 2016, teaming up to do paint demonstrations at the Javier Designs booth throughout the weekend.

“This year, we’ve elevated their presence to the next level, and I personally can’t wait to see what amazing things they are going to do together in creating this special edition bike,” he continues. “If you’re a motorcycle enthusiast or just a fan of terrific custom paint jobs, you won’t want to miss attending NORTHEAST 2017 to see the final result of this project.”

The Harley will be sold through a silent action that will take place throughout the weekend of the NORTHEAST show. More details will be announced soon. For additional information on NORTHEAST (including how to register), visit aaspnjnortheast.com.

MASSACHUSETTS BUILDING THE SUCCESS OF THE AUTO REPAIR INDUSTRY

New England Automotive Report

January 2017

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New England Automotive Report

January 2017

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

ASSIgNMENtS oF RIgHtS: doN’t lEt INSURERS PUll tHE wool ovER yoUR EyES! For the past few months, I have been writing about various aspects of the new Massachusetts private passenger auto insurance policy. The new policy was developed by the Automobile Insurers Bureau of Massachusetts (AIB) and approved by the Division of Insurance for use by electing insurers as of October 1, 2016. As noted in the prior articles, there are some good and some bad things in the policy for the collision repair industry.

There is one change in the new policy that I have not yet addressed. The reason that I have not done so is because, in my opinion, the new language does not really change anything. It merely restates longstanding policy language that limits assignments of “interest” under the policy.

Based on an article that recently appeared in a prominent Massachusetts insurance industry online publication (“First Look at the AIB’s 2016 Mass. Personal Auto Insurance Policy,” Agency Checklists, December 2, 2016), however, it turns out that it may be important to address the new antiassignment language. It may also be important for the collision industry to educate itself, be prepared for misinterpretation of the language by Massachusetts insurers and be able to stand up to those who try to wrongfully apply it.

THE POLICY LANGUAGE AND INSURANCE INDUSTRY INTERPRETATION The new policy states, in part: “Under Collision [Part 7], Limited Collision [Part 8] and Comprehensive [Part 9], an assignment of interest under this policy will not bind us without our knowledge or consent. Any improper assignment shall be void and invalid. The assignee shall acquire no rights under this contract, and we shall not recognize any such assignment. This limitation on assignment shall not affect our

38 January 2017

right to subrogation under this policy.”

The insurance industry article notes the addition of this new language, and then goes on to interpret it: “This provision would seem to have its genesis from a movement among auto body repair shops that have no insurance company repair affiliations to obtain broad assignments of rights from insureds. These auto body repair shops then seek to use the assignments as the basis for Division of Insurance complaints or suits against the insurance company issuing the policy in the name of the insured for the benefit of the auto body repair shop.” Based on this, an uneducated reader of the article may think that the quoted language now prohibits these types of assignments.

THE PROBLEM WITH THE STATED INTERPRETATION Actually, the interpretation in the article fairly accurately explains the procedure that many collision repair shops in Massachusetts use. Often, they get their customers to sign an Assignment of Rights form, and then they stand in the shoes of their customer to negotiate with and possibly sue the customer’s insurer. This has been a procedure that has been utilized in Massachusetts for decades. AASP/MA has template forms that member shops can use to allow customers to assign their rights against their insurers to them. I also have represented many repair shops over the years that have successfully utilized such Assignment of Rights forms to sue insurers.

If carefully read, the stated interpretation of the subject policy language in the insurance industry article is not entirely wrong, since it does not outright say that the new policy language prohibits the use of Assignments of Rights. But regrettably, the wrongful implication of the article is that the language does prohibit their use.

Do not be fooled! Based on well-

New England Automotive Report

established case law throughout the United States, it is clear that the quoted change in policy language does NOT prohibit the use or enforceability of Assignment of Rights forms (except maybe in Louisiana - but that’s an article for another day).

While the cited policy language is a new addition with respect to collision and comprehensive coverage, prior Massachusetts private passenger auto policies almost always have had similar nonassignment of interest clauses in their general conditions sections. In fact, such clauses also have been standard in commercial, homeowner’s, life and other insurance policies almost forever. Importantly, all of these non-assignment clauses, including the new one in the Massachusetts auto policy, prohibit assignment by an insured of an “interest” in the policy, but they do not prohibit assignment of a claim. Courts have uniformly interpreted this to mean that an insured cannot assign the policy itself. That is, if someone sells their car, they cannot assign their insurance policy to the new owner. But the courts have also uniformly ruled that, once a claim has arisen, the nonassignment clauses do not, and cannot, prevent the insured from assigning the claim to a third party.

As explained in one of the preeminent insurance course textbooks, Mehr and Cammack’s Principles of Insurance, “Assignment clauses apply only to assignments before a loss. After a loss, the policy represents a right of action and may be assigned by the insured without the consent of the insurer…the loss has occurred, and the claim is due. The assignment changes only the payee.” A leading legal encyclopedia goes even further in explaining the applicable law, as 43 AmJur2 § 792 states the following: “Indeed, a specific provision against an assignment after loss is null and void as inconsistent with

the covenant of indemnity and contrary to public policy.”

Based on this, a prohibition of assignment of a claim after a loss is not only unenforceable, but such a prohibition in an insurance policy may be the basis for a suit against the insurer for unfair and deceptive practices.

The Assignment of Rights procedure used by Massachusetts repair shops is always utilized only after a loss has occurred. A shop’s insured customer and their car would not be in the shop unless the loss had already occurred. Repair shops taking Assignment of Rights forms are only seeking to enforce their customer’s existing claim against the customer’s insurer and to make sure that the insurer pays what the customer is entitled to.

Under governing case law, the new policy language does nothing to stop this.

THE STATUTORY ASSIGNMENT BONUS Not only are such non-assignment clauses ineffective in prohibiting the assignment of an existing claim, they also do not affect the ability of an insured to assign to a repair shop any statutory claims that an insured may have against an insurer including statutory claims for punitive damages. A prime instance of this type of assignment would be a customer assigning to a repair shop their rights under the Massachusetts Consumer Protection Act,

M.G.L., Chapter 93A, which allows a successful litigant to be awarded up to three times their actual damages (plus their attorney fees). Examples of Massachusetts appellate courts upholding assignments of such claims are legion (See, e.g., Raymer v.

Bay State National Bank, 384 Mass. 310 [1981]; DiMarzo v. American Mutual Insurance Company, 389 Mass. 85 [198]); and Gore v. Arbella Mutual Insurance Company, 77 Mass.App.Ct. 518 [2010]).

Massachusetts cases upholding the right of a person to assign a statutory claim go back to the 1800s, and they continue to the present day. Further, statutory claims are viewed by the courts as being completely independent of the insurance policy or other contract upon which they may be based. So, even if a statutory claim were to be based upon an element of an insurance policy that truly was made non-assignable by language in the policy, the statutory claim itself would still be assignable and the assignment would be valid. Even if the insurance industry’s implied interpretation of the new policy language were somehow to be upheld by some court, a lawsuit under the Consumer

Protection Act based on the same claim brought by a repair shop under an Assignment of Rights would still be legally valid.

A FINAL WORD The insurance industry article was written by an attorney who represents insurers and other participants in the insurance industry. He is a competent and highly regarded attorney, and the remainder of the article that he wrote is, in my opinion, accurate and well written.

In fact, the author of the article may have chosen his words carefully, knowing that courts do not interpret anti-assignment clauses to prohibit assignments of an insured’s rights once a claim under an insurance policy has arisen. I suspect that this may be the case, because I have actually litigated this issue against the attorney’s firm in the past - and I won.

MASSACHUSETTS BUILDING THE SUCCESS OF THE AUTO REPAIR INDUSTRY

Attorney James Castleman is a managing member of Paster, Rice & Castleman, LLC in Quincy, MA. He can be reached at (617) 472-3424 or at jcastleman@prclawoffice.com.

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New England Automotive Report

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New England Automotive Report

January 2017

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42 January 2017

New England Automotive Report

[COVER] STORY by Joel Gausten

Defending OEM Procedures: Shops Fight to Protect their Customers if an oem is promoting a procedure as appropriate in the repair process, what is an insurer’s responsibility in adhering to that recommendation?

As anyone who has read New England Automotive Report in recent months knows, a growing number of auto manufacturers are issuing position statements that stress the importance of collision technicians performing pre- and postrepair scans on their vehicles (regardless of the presence of a dashboard warning light). In response to these positions, shops throughout the Commonwealth are implementing scanning equipment and training into their businesses like never before.

Unfortunately, this publication is receiving word out in the field that more than a few shops have encountered resistance by certain insurers that are refusing to pay for these important procedures.

As a repair professional who stays on top of industry trends and technology, Adam Ioakim of Hogan & Van Auto Body (Medford) has made considerable investments to ensure that his facility has the tools and equipment necessary to perform scans on the vehicles repaired at his business.

However, his diligence as a customer service provider has led to pushback from a few insurers unwilling to accept and pay for his charges related to this operation. Currently, he is going back and forth with a carrier over the payment of charges for scans on a 2016 Chevrolet Suburban.

“Their stance has been that the customer is not covered in their collision section of their policy for this, despite the fact that this is a collision-required procedure and it needs to be done.”

Ioakim insists that scanning the car before and after the job keeps the repair in line with OEM-recommended procedures – which are necessary to guarantee that his customer’s vehicle is brought back to pre-accident condition.

“The dash indicator light is not going to indicate all faults,” he says. “The only way to truly identify if any of the faults are related to the accident is a pre-scan, then the postscan will determine if you’ve resolved those and if you’ve triggered any new ones in the repair process by disconnection or installing new parts that needed to be recalibrated, coded or programmed…We have all the documentation in the world,

but their position is, ‘No, we don’t want to pay for that.’”

As OEMs continue to promote scanning to the repair industry, shops have a variety of options to explore in order to develop what they consider to be the most efficient and professional way to service vehicle owners. Some facilities purchase equipment (often for thousands of dollars in addition to regular subscription fees) and do it themselves, while others sublet this work to area dealerships. Tools available to independent shops run the gamut from OEM-specific scanners to aftermarket products to special remote interfaces that will connect to a host of vehicle manufacturers. Just as there is no one-size-fits-all process for scanning, Ioakim believes that shops should retain the right to charge an amount that will provide an ROI on the specific investments, expertise and tooling that the businesses utilize to keep their customers safe.

“You don’t get an MRI or an X-Ray and only get charged 30 minutes for the lab technician’s time; they charge you for that technician’s time and the use of that equipment. I don’t know why we’ve been put into this situation that sets the tone with the insurance carriers that our equipment isn’t worth an ROI.” Ioakim adds that another insurer has informed him that they are aware that scanning is necessary and are currently considering establishing an allowable amount of time to assign for the procedure. However, this doesn’t satisfy the shop owner one bit.

“I’m the shop owner; I’m the only one who should determine what the cost is. You can’t come in here and say you’re just going to pay us 0.3 for every scan. We have a business to run; if you’re selling your product for below what you pay for it, then that’s a recipe for going out of business.

“Only the shop owners themselves, depending on what practice they use, can determine what their retail price is for the scan,” he adds. “The shop owner is the one who needs to figure out what goes into each scan – however way he or she chooses to do it – and figure out a fair and reasonable retail price for that.”

Of course, debates over getting paid for scanning isn’t really the main issue here. Every automotive professional in this industry should be concerned any time an insurer refuses New England Automotive Report

January 2017

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to pay for something that an auto manufacturer says is necessary for the continued safety of drivers and passengers.

As Ioakim says, “Why am I going to listen to a supervisor or an appraiser at an insurer company who tells me, ‘Oh, you don’t need to do that.’ Where’s their documentation and experience? Why would we adhere to someone who is disregarding the person who built the car and gave us hardline safety data about what you can miss by not scanning it?”

Revere-based shop owner and past AASP/MA President Rick Starbard agrees. At his shop, scanning a vehicle is a three-part process. First, a technician will perform a pre-repair scan and will note whether or not codes were present.

A second scan is done after the car is repaired, then a third and final scan is performed after the vehicle is taken for a test drive. Not only does the shop charge for these procedures, but they’ve been consistently getting paid for them.

Naturally, documentation has been the key.

“When I write an estimate and write my paint and materials per PMCLogic, I attach a PMCLogic sheet,” Starbard says.

“If I’m going to write to pre- and postscan a car, then I should have at least the pre-scan results attached to my estimate.”

Including paperwork of this nature ultimately serves two critical purposes: 1.

Starbard can prove that he scanned the car per OEM recommendations, thus taking the steps necessary to provide a safe repair for his customer, and 2. He is able to show why he expects to be paid a reasonable rate – one that isn’t sliced and diced by the insurer - for what he does on the shop floor.

“I do it right, and I don’t give gifts,” he says.

As this feature was going to press, Ioakim informed us that the insurer of the Chevrolet Suburban had finally acknowledged that scanning was necessary, but that they were still looking into how to handle it. (A very similar line was given to New England Automotive Report from at least two insurers we contacted for a statement on the scanning

topic. We are in the process of contacting a variety of other auto insurers in Massachusetts and will provide an overview of their responses in next month’s issue.) With relations between shops and carriers over this topic getting more strained by the day, Ioakim is proving his resilience by getting his customers involved in the debacle.

“None of the customers I’ve explained this to have batted an eyelash.

We send them the position statement and say, ‘Hey, we need to do this.’ They say, ‘Why in the world would my insurance company not pay for this?’”

In instances when an insurer won’t budge on the scanning issue, Ioakim balance bills his customers. One vehicle owner in particular is upset over the situation to the point where he has informed his insurer that he is not picking up his car from Ioakim’s shop until he is paid for the balance.

Additionally, he is considering his legal options against the carrier.

“He apologized to us for having to deal with such a poor insurance company,” Ioakim says. “We were tasked to fix his car correctly, and we did it by following OEM standards, recommendations and requirements – and now his insurance company is falling short.”

Massachusetts attorney Jim Castleman, who regularly represents Commonwealth auto shops in legal disputes with and/or against insurers, believes that getting the vehicle owners involved in disputes of this nature is a potential benefit.

“I’ve always recommended to get the consumer involved in any of this, if possible. Insurers often tend to be more responsive to consumers; they want to keep their customers happy and don’t want to lose them.”

Obviously, the collision industry’s struggle to receive fair and reasonable compensation is nothing new. This dilemma is sure to continue as long as there is the (often unwelcome) input from an outside industry that markets its services as making their customers whole while operating under a cost-

containment philosophy at the same time. But will the pre- and post-repair scanning issue be enough to make insurers loosen their grip and stop arguing against what a manufacturer says is needed to repair one of its vehicles? If carriers elect to ignore the importance of proper OEM procedures, a marketing nightmare could be the least of their worries. However, nothing will change for the better unless shops fully

and professionally document why they perform certain procedures – and why they deserve to get paid for them. As Starbard sees it, success in receiving compensation for scanning comes down to shops getting off the phone with an insurer when disagreements arise.

“Don’t get into a verbal argument; put it in writing and cc the customer.

When you do that, there’s no misunderstanding. When you send an continued on page 54

New England Automotive Report

January 2017

45

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New England Automotive Report

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As a member of the Alliance of Automotive Service Providers of Massachusetts (AASP/MA), I will abide by the association’s bylaws and code of ethics. I understand that membership in AASP of Massachusetts is non-transferable, and I must remain current with my dues in order to be a member in good standing. I understand that if I discontinue my membership that I must immediately cease using any association promotions, logos or materials. Additionally, I understand that as part of my AASP of Massachusetts membership, I will receive New England Automotive Report, the official publication of AASP of Massachusetts, faxes, emails and other mailings.

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PlEASE CoMPlEtE tHIS MEMbERSHIP APPlICAtIoN ANd REtURN It wItH PAyMENt to AASP-MA oFFICE. 12 Post office Square, 6th Floor • boston, MA 02109 Phone: (617) 574-0741 | Fax: (617) 695-0173|jzywien@aaspma.org As required by the U.S. Tax Code, AASP of Massachusetts, Inc. informs its members that 75% of the dues paid to the association are tax deductible. The remaining 25% is allocated to legislative activities and is not tax deductible.

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[COVER] STORY continued from page 45 email to the insurance company and you’re attaching vehicle position statements to it, they would be absolutely foolish to put in writing that they go against that position. If the shops are doing it and can prove they’re doing it, insurers have absolutely no choice but to pay for it.”

For free access to OEM position statements on scanning (and a host of other procedures), visit oem1stop.com. Shops

54 January 2017

interested in learning more about pre- and post-repair scanning are encouraged to attend AASP/MA’s January 24 Statewide Meeting in Raynham with guest speaker Jake Rodenroth (Collision Diagnostic Services).

Details are available on page 15.

New England Automotive Report

MASSACHUSETTS BUILDING THE SUCCESS OF THE AUTO REPAIR INDUSTRY

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AUT M TIVE AD INDEX Accudraft Paint Booths ............................OBC AkzoNobel ......................................................24 Audi Group ....................................................19 Audi Shrewsbury ..........................................50 Axalta Coating Systems ..................................6 BASF ................................................................31 Balise Wholesale Parts Express ....................11 Best Chevrolet/Best CDJR..........................IFC BMW Group ..............................................16-17 BMW/Mini of Warwick ................................30 Clay Subaru ....................................................34 Colonial Auto Group ....................................32 Empire Auto Parts..........................................44 Enterprise ..........................................................5 First Chrysler-Dodge-Jeep-Ram ..................52 First Ford ........................................................52 First Hyundai..................................................52 Ford Group ....................................................33 FutureCure ......................................................45 Honda Group..................................................41 Honda ProFirst ................................................4 Hyundai Group ................................................9 Imperial Ford ..................................................33 Infiniti of Norwood........................................26 Ira Subaru........................................................13 Ira Toyota of Danvers ....................................12 Kelly Automotive Group............................IBC Kia Group........................................................27 Linder’s, Inc. ..................................................54 Long Automotive Group ..............................25 Mazda Group..................................................29 McGovern Chrysler Jeep Dodge Ram ........53 Mercedes-Benz of Shrewsbury ....................50 Mopar Group..................................................40 Nissan Group..................................................49 Polyvance ........................................................36 PPG ....................................................................3 Robertsons GMC Truck ..................................5 Sarat Ford Lincoln..........................................53 Sentry Group ..................................................37 Subaru Group............................................20-21 Tasca Group ....................................................42 Toyota Group..................................................46 Volvo Group....................................................47 VW Group ......................................................35 Wagner BMW of Shrewsbury ......................50 Wagner Kia of Shrewsbury ..........................50 Wellesley Toyota/Scion ................................52 Wheel Collision Center ................................44