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212 CMR
2.00: THE
APPRAISAL AND REPAIR OF DAMAGED MOTOR VEHICLES
Section
2.01: Scope of Regulations
2.02: Licensing Requirements and Standards for Appraisers
2.03: Duties of Insurers and Repairers
2.04: Procedures for the Conduct of Appraisers and
Intensified Appraisals
2.05: Penalties
2.06: Severability
2.01: Scope of Regulations
(1) Purpose and Applicability . The
purpose of 212 CMR 2.00 is to promote the public welfare
and safety by improving the quality and economy of the
appraisal and repair of damaged motor
vehicles. Any licensed appraiser, individual or
corporate entity who employs licensed appraisers
shall be bound by 212 CMR 2.00.
212 CMR 2.00 is intended to be read
in conjunction with 211 CMR 133.00, Standards for
the Repair of Damaged Motor Vehicles.
(2) Authority. 212 CMR 2.00 is
promulgated under the authority granted to the Auto Damage
Appraiser Licensing Board by M.G.L. c. 26, s 8G, as
added by St. 1981, c. 775, s 1
(3) The Board may from time to time issue
Advisory Rulings and shall do so in compliance
with M.G.L. c. 30A, s 8.
(4) Definitions.
Appraisal - a written motor vehicle damage
report as defined in M.G.L. c. 26, s 8G and in
compliance with the provisions of M.G.L. c. 93A, c.
100A, c 90 s 34R, and c 26, 8G.
Appraiser - means any person licensed by
the Auto Damage Appraiser Licensing Board to
evaluate motor vehicle damage and determine the cost
of parts and labor required to repair the
motor vehicle damage.
Claimant - means any person making a
claim for damage to a motor vehicle for either first or
third party damages.
Independent appraiser - means any
appraiser other than a staff appraiser who makes appraisals
under an assignment by an insurer or repair shop and
shall include the owner or employee of a
repair shop who makes appraisals under a contract with
an insurer.
Intensified appraisal - means the
combination of the appraisal of a motor vehicle before its repair
and the reinspection of the vehicle subsequent to its repair.
Staff appraiser - means an appraiser who
is an employee of an insurer and whose job duties
include the making of appraisals for his or her employer.
Supervisory appraisal - means an
appraisal conducted by an insurance company or appraisal
company supervisor soley for the purpose of evaluating
the appraisal ability of one of his or her
appraiser employees or for the providing on-the-job
training of an appraiser
employee.
2.02: Licensing requirements and Standards for Appraisers.
(1) Requirement That License Be Obtained
and Displayed . No person in Massachusetts shall
appraise or estimate damages to motor vehicles or
otherwise present himself or herself as an
appraiser unless he or she has first obtained a
license from the Auto Damage Appraiser
Licensing Board This license shall be valid for one
year or less and shall be renewed annually
on July 1st. Any appraiser, While making an appraisal,
Shall carry his or her license and shall,
upon request, display it to any person involved in the
claim or to any representative of the Board.
2/23/96
212 CMR - 5
2.02: continued
(2) Qualifications for a License
Any applicant for a license shall be 18 years of age or over
and of good moral character. He or she shall furnish
satisfactory proof to the board that he or
she possesses the educational qualifications required
for graduation from high school or that he
or she possesses relevant work experience deemed
satisfactory by the Board. No applicant shall
be considered competent unless the applicant has
assisted in the preparation of appraisals for at
least three months under the close supervision of a
licensed appraiser. He or she shall complete
an approved appraisal course or at the Board's
discretion work experience may be substituted
for said schooling.
(3) Application and Examination
Fee for a License. Any applicant for a license shall complete
an application to be prescribed by the Board and shall
sign it under the penalties of perjury. He
or she shall submit this application and
non-refundable fee of $100 to the board. After an
application is received and approved, the applicant
shall be required to pass an examination
given under the supervision of the board. All
successful applicants will be issued a numbered
license. Any applicant failing to pass an examination,
upon the payment of a further non-
refundable fee of $50.00, shall be entitled to a
reexamination after the expiration of six months
from the date of the last examination. Any applicant
failing to pass an examination shall be
allowed to review his or her examination.
(4) Renewal of license.The
Board shall mail each licensed appraiser an application for
renewal. Such application shall be completed and
returned to the Board. Each application shall
be accompanied by a renewal fee of $50.00. After
verification of the facts stated on the re newel
application, the Board shall issue a re newel license
dated July first, and this license shall expire
on the June thirtieth of the year following. Any
licensed appraiser who fails to renew his or her
license within 60 days after notification by the Board
of his or her license expiration date, before
again engaging in the practice of a licensed appraiser
within the Commonwealth, shall be
required to re-register, pay a penalty fee determined
by the Board and any back license fees, or
may be required by the Board to be reexamined and pay
applicable fees.
(5) Procedure for Auto Damage Appraisals.
(a) All forms used
for auto damage appraisals must be approved by the Board.
(b) All forms used
are required to have an itemization of parts, labor and services necessary
for repairs
thereof. The prepared appraisal shall be sworn to under the penalties
of perjury
and shall include
the appraiser's name, signature, license number, seal or stamp, employer,
insurance company,
repair shop registration number if applicable, fee charged, the date the
vehicle was
appraised and the name of the manual used (if any) in preparing the appraisal.
The appraisal seal
or stamp shall be of a design approved by the Board. All appraisals sent
electronically
need not include the appraiser's signature and his or her seal or stamp.
(6) Schedule of Appraisal Fees.
(a) The
Board may consider the appraisal fees charged within the territories
where said
appraiser
operates. Any appraiser shall establish his or her own fee schedule
unless limited
by the Board. Any
appraiser must post his or her appraisal fee schedule in a conspicuous
location at his or
her work place. The Board may establish a maximum schedule of fees by
territory, type of
business or complexity of work. Fees charged in excess of maximums
approved by the
Board shall result in penalties as established by the Board.
(b)
Fees paid by a claimant for an appraisal that was requested by the
insurer are
recoverable from
the insurer. Fees for auto damage appraisals not requested by the insurer
in first party
claims are not recoverable from the insurer.
(7) Conflict of Interest. It
shall be a conflict of interest for any appraiser who has been
assigned to appraise a damaged motor vehicle to
accept, in connection with that appraisal,
anything of value from any source other than the
assignor of the appraisal.
Further, it
shall be a conflict or interest for any appraiser employed by a
repair shop to accept
the assignment of an appraisal from an insurer unless
that appraiser's employment contract
prohibits the repair shop from repairing damaged motor
vehicles that have been so appraised.
In addition, it shall be a conflict of interest for
any appraiser who owns or has an interest in a
repair shop to have a vehicle repaired at that shop if
that appraiser has appraised that vehicle at
the request of an insurer.
2/23/96
212 CMR - 6
2.02: continued
It
shall be a conflict of interest if any appraiser operates a
"Drive-in" Appraisal
Service for
an insurer at a repair shop.
(8) Revocation
or Suspension of a License. The Board may revoke or
suspend any appraiser's
license at any time for a period not exceeding one
year if the Board finds, after a hearing, that
the individual is either not compentent or trustworthy
or has committed fraud, deceit, gross
negligence, misconduct, or conflict of interest in the
preparation of any motor vehicle damage
report. The following acts or practices by any
appraiser are among those that may be considered
as grounds for revocation or suspension of an
appraiser's license:
(a) material
misrepresentations knowingly or negligently made in an application
for a
license
or for its re newel;
(b) material
misrepresentations knowingly or negligently made to an owner of a damaged
motor
vehicle or to a repair shop regarding the terms or effect of any
contract or insurance;
(c) the
arrangement of unfair and or unreasonable settlements offered to
claimants under
collision,
limited collision, comprehensive, or property damage liability coverages;
(d) the causation or facilitation of the overpayment by an
insurer of a claim made under
collision,
limited collision, comprehensive, or property damage liability
coverage as a result
of an
inaccurate appraisal;
(e) the refusal by an appraiser who owns or is
employed by a repair shop to allow an
appraiser
assigned by an insurer access to that repair shop for the purpose of
making an
appraisal,
supervisory reinspection, or intensified appraisal.
(f) the commission of any criminal act related to
appraisals, or any felonious act, which
results in final conviction;
(g) knowingly preparing an appraisal that itemizes damage
to a motor vehicle that does not
exist:and
(h) failure to comply with 212 CMR 2.00.
(9) Drive-in Claim and
Appraisal Facilities Drive-in claim and appraisal
facilities shall
possess
the following equipment:
(a) Operating telephone service.
(b) A
calculator.
(c) Current
collision, paint and body cost estimating guide manuals or an
automated system.
(d) An
operating flash light.
(e) A
tape measure of at least 30 feet.
(f) An
operating camera and film.
(g) A
fax machine or other device capable of transmitting data.
2.03: Duties of Insurers and Repairers
(1) Responsibilities
for Actions of Appraisers. An insurer or repair shop
shall be responsible
for actions of all of
its appraisers whether staff or independent and shall be subject to the
applicable penalties
under law for any violation of 212 CMR 2.00 by its appraiser.
The
Board may access penalties against either the appraiser, the
insurer, the repair shop or
all three. In the event
of default by the appraiser, the insurer or the repair shop may be
responsible for penalties.
(2) Records
and Analysis of Appraisals. Every insurer or repair
shop appraiser shall retain for
at least two years,
copies of all records related to appraisals and inspection. Every
insurer shall
retain copies of all
records including photographs in accordance with state law.
2.04: Procedures for the conduct of
Appraisals and Intensified Appraisals
(1) Conduct of Appraisals.
(a) Assignment
of an Appraiser. Upon receipt by an insurer or its
agent of an oral or
written claim for damage
resulting from a motor vehicle accident, theft, or other incident for
which an insurer may be
liable, the insurer shall assign either a staff or an independent
appraiser to appraise the
damage. Assignment of an appraiser shall be made within two
working days of the receipt
of such claim. However, the insurer may exclude any claim for
which the amount of
loss, less any applicable deductible, is less than $500.00.
2/23/96
212 CMR - 7
2.04 continued
(b) Repair
Shop Appraisal. All repair shops shall maintain one
or more licensed appraisers
in their
employment for the purpose of preparing motor vehicle damage
appraisals. No staff
or
independent appraiser shall knowingly negotiate a repair figure with
an unlicensed
individual
or an unregistered repair shop.
(c) Contact
with Claimant and Selection of Repair Shop. No staff
or independent appraiser,
insurer,
representative of insurer, or employer of an independent appraiser
shall refer the
claimant to
or away from any specific repair shop or individual. The provisions
of 212 CMR 2.04(c)
shall not apply
to any approved direct payment plan pursuant to 211 CMR 123.00.
(d) Requirement
of Personal Inspection and Photographs. The appraiser
shall personally
inspect the
damaged motor vehicle and shall rely primarily on that personal
inspection in
making the
appraisal. As part of the inspection, the appraiser shall also
photograph each of
the damaged areas.
(e)Determination
of Damage and Cost of Repairs. The appraiser shall
specify all damage
attributable
to the accident, theft, or other incident in question and shall also
specify any
unrelated
damage. If the appraiser determines that preliminary work or repairs would
significantly
improve the accuracy of the appraisal, he or she shall authorize the preliminary
work or
repair with the approval of the claimant and shall complete the
appraisal after that
work has
been done. The appraisers representing the insurance company and the registered
repair shop
selected by the insured to do the repair shall attempt to agree on
the estimated
cost for
such repairs. the registered repair shop must prepare an appraisal
for the purpose
of
negotiation. no appraiser shall modify any published manual (i.e.,
Motors, Mitchell or any
automated
appraisal system) without prior negotiation between parties. Maufacturer
warranty repair
procedures, I-Car, Tec Cor and paint manufacturer procedures may also
apply. Further,
no appraiser shall use more than one manual or system for the sole purpose
of gaining an
advantage in the negotiation process.
If,
while in the performance of his or her duties as a licensed auto
damage appraiser, an
appraiser
recognizes that a damaged repairable vehicle has incurred damage that would
impair the
operational safety of the vehicle, the appraiser shall immediately
notify the owner
of said
vehicle that the vehicle may be unsafe to drive.
The licensed auto damage appraiser
shall also comply with the requirements of M.G.L.
c.26, s 8G
the paragraph that pertains to the removal of a vehicle's safety
inspection sticker
in
certain situations.
The
appraiser shall determine which parts are to be used in the repair
process in
accordance
with 211 CMR 133.00. the appraiser shall itemize the cost of all
parts, labor,
materials,
and necessary procedures required to restore the vehicles to pre-accident
condition
and shall
total such items. The rental costs of frame/unibody fixtures
necessary to effectively
repair a
damaged vehicle shall be shown on the appraisal and shall not be considered
overhead
costs of the repair shop. With respect to refinishing materials, if
the formula of
dollars
times hours does not adequately reflect the cost of a particular
repair a published
manual or
other form of documentation shall be used. All appraisals written
under 212 CMR
2.00 shall
include the cost of replacing broken or damaged glass within the
appraisal. When
there is
glass breakage that is the result of damage to the structural housing
of the glass then
the cost of
replacing th glass must be included in the appraisal in accordance
with 212 CMR
2.04. The
total cost of repairing the damage shall be computed by adding shall
be computed by
adding any
applicable sales tax payable on the cost of replacement parts and
other materials.
the
appraiser shall record the cost of any unrelated damage on a report
or clearly separate segregated
on the
appraisal unless the unrelated damage is in the area of repair.
If
after market parts are specified in any appraisal the appraiser
shall also comply with
the
requirements of M.G.L. c. 90, s 34R that pertain to the notice that
must be given to the
owner of a
damaged motor vehicle.
The
appraiser shall mail, fax or electronically transmit the completed
appraisal within
five working
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
working days
of the assignment. The repair shop may also require a completed
appraisal, then the
repair shop
shall make available desk space, phone facilities, calculator and necessary
manuals. A
reasonable extension of time is permissible when intervening
circumstances such
as the need
for preliminary repairs, severe illness, failure of the parties other
than the insurer
to
communicate or cooperate, or extreme weather conditions make timely
inspection of the
vehicle and
completion of the appraisal impossible.
2.04 continued
(f) Determination
of Total Loss Whenever the appraised cost of repair plus estimated
salvage may
be reasonably expected to exceed the actual cash value of a vehicle,
the insurer
may deem
that vehicle a total loss. No motor vehicle may be deemed a total
loss unless it has
been
inspected or appraised by a licensed appraiser nor shall any such
motor vehicle be
moved a
holding area without the consent of the owner. A total loss shall not be
determined
by the use of any percentage formula.
(g) Preparation
and Distribution of Appraisal Form All appraisers shall set
forth the
information
compiled during the appraisal on a form that has been filed with the
Board. Staff
and
independent appraisers shall, upon completion of the appraisal, give
copies of the
completed
appraisal form to the claimant, the insurer, and the repair shop and
shall give
related
photographs to the insurer.
(h)
Supplemental Appraisals If a registered repair shop or
claimant, after commencing
repairing,
discovers additional damaged parts or damage that could not have been reasonably
anticipated
at the time of the appraisal, either may request a supplementary
appraisal. The
registered
repair shop shall complete a supplemental appraiser prior to making
the request.
The insurer
shall assign an appraiser who shall personally inspect the damaged vehicle
within three
working days of the receipt of such request. The appraiser shall have
the option
to leave a
completed copy of the supplemental appraisal at the registered repair shop
authorized
by the insured or leave a signed copy of his or her field notes with
the completed
supplement
to be mailed, faxed, electronically transmitted or hand delivered to
the registered
repair shop
within one working day. The appraiser shall also give a copy of the completed
supplement
to the insurance company in a similar manner. A reasonable extension
of time
is
permissible when intervening circumstances such as the need for
preliminary repairs,
severe
illness, failure of the parties other than the insurer to communicate
or cooperate, or
extreme
weather conditions make timely inspections of the vehicle and
completion of the
supplemental
appraisal impossible.
(i) Completed
Work Claim Form If the insurance company does not have a direct payment
plan of if
the owner of the vehicle chooses not to accept payment under a direct payment
plan then a
representative of the insurer shall provide the insured with a
completed work
claim form
and instructions for its completion and submission to the insurer.
(2) Temporary Licensing The
Board may grant at its discretion either an emergency or a
temporary license to any qualified
individual to alleviate a catastrophic or emergency situation
for up to 90 days. The Board may
limit the extent of such emergency authorization and in any
event, if the situation exceeds 30
days, a fee determined by the Board shall be charged for all
emergency or temporary licenses.
2.05: Penalties.
(1) Violations of M.G.L. c.
26, s 8G, and 212 CM 2.00 may result in penalties including
administrative costs,
revocation or suspension of license or both. All administrative coats are
subject to the discretion of
the Board. The administrative costs may be assessed against the
such an insurer.
2.06 Severability
If
any provision of 212 CMR 2.00 or its application to any person or
circumstances is held
invalid, such
invalidity shall not affect the validity of other provisions or
applications of 212
CMR 2.00.
REGULATORY AUTHORITY
212 CMR 2.00:
M.G.L. c. 26, s 8G.
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