25 Investigates

Mass. ‘pothole’ law leaving many with a hole in their wallet

Cold temperatures, snow and potholes. Massachusetts winters are tough and can take a toll on your car. But trying to get reimbursed for the damage caused to your car by those potholes can be tougher.

As 25 Investigates found, cities and towns are citing a decades-old law to deny payment on claims for damage caused by defective roadways.

A recent AAA study indicates potholes cost motorists an average of $306 in damage. Some less fortunate drivers can end up paying more than $1,000 in repairs, according to the report.

Carol McCarthy-Lavoie is one of the luckier ones. She was driving on Route 110 in Lowell last Spring when she says she hit a pothole that resulted in a couple hundred dollars in damages.

“All of a sudden there was this loud noise, like an explosion underneath my car,” said the Chelmsford resident. “I was like ‘Oh my God, my car!’ The tire was completely flat, like flat right to the rim.”

Pictures she took of the damage shows the mangled tire. She also took pictures of the offending pothole and tried to report it to the city of Lowell’s Department of Public Works, but nobody returned her call, she said.

After getting her tire fixed, McCarthy-Lavoie submitted the $269 bill to the city of Lowell for reimbursement and waited for a response. Six months later she finally heard back. Her claim was denied.

“It’s very frustrating. I was told every time I called that the lawyer handling my case was in a meeting. Every single time he was in a meeting,” said McCarthy-Lavoie.

In denying her claim, the city of Lowell cited a decades-old state law that says municipalities need to have prior knowledge of a pothole or defect in the road and need reasonable time to fix it. The law also sets a $5,000 limit on refunds.

25 Investigates’ Ted Daniel tried to get answers from the city of Lowell about McCarthy-Lavoie’s claim. When our email to the city went unanswered, 25 Investigates showed up to the city council meeting where a representative for the city manager said they would investigate the matter and give us an on-camera interview the next day. Instead, they provided a statement that reads, in part:

The Law Department attempts to process claims and issue decisions to pothole damage claimants in a timely manner. In certain instances, particularly at times of the year when pothole damage claims are received in high volumes, the Department has not immediately issued decisions to claimants. Under statute, claims that have not been responded to after six months of their filing are considered to be denied.

—  City of Lowell response to Boston 25 News

“You would think the law would be a little more supportive of people who suffer damages to their cars because we can’t maintain our roads,” said David White, an attorney at the Boston law firm Breakstone, White & Gluck. White said pothole claims can seem like a waste of time because they are so difficult to win. “The city can say you were 1% negligent yourself and that is an absolute defense to the case. And they’ll win, they will win," he said.

25 Investigates obtained and analyzed nearly four years of data related to pothole damage claims from Lowell, Worcester and Plymouth. Between 2016 and 2019, Lowell paid out only one of the 44 claims it received. In Plymouth, two of the 23 damage claims submitted were paid out during the same period. Of the three municipalities, Worcester was the most generous. The city approved 26 of the 274 claims it received.

Worcester’s solicitor, David Moore, says the formula the city uses to evaluate pothole claims is simple.

“Obviously the goal is to get the potholes filled. If you file a claim on a pothole, we'll check the log and see if it was reported previously and if we didn’t fix it then we are going to be liable for that,” said Moore, who is retiring from his post at the end of the year.

Carol McCarthy-Lavoie says she may never understand why it took so long to get a response to her claim, but at least now she understands the limits of the law.

“For a person who’s less fortunate than me, I feel that (the law) should be fixed.”

While cities and towns can cite several reasons for denying pothole claims, it is important to file a claim within 30 days from when the damage occurred. Drivers should also verify that they were in fact on a city or town road. Property damage is not refundable on state roads. The law says the state will only assume liability on claims involving bodily harm.

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