16 Mass. App. Ct. 538 | Mass. App. Ct. | 1983
In February, 1975, the fishing vessel St. Anthony, which was owned by the plaintiff (“Parisi”) and was in drydock on the premises of the defendant (“Gloucester Marine”) for repairs, was damaged by fire so extensively that it was deemed to be a total loss. Parisi brought this action on May 9, 1975, to recover damages for the negligence of Gloucester Marine’s employees in causing the fire.
Parisi carried hull insurance in the amount of $135,000, covering damage to the vessel. That policy was written by the intervener (“Glacier General”) and included a clause reserving to Glacier General the right to control any litigation concerning losses of the type covered by the policy. The sole loss payee was the United States of America, which had
On March 19, 1976, Parisi and Glacier General resolved their differences by entering into a written agreement under which (1) Glacier General paid out $100,000 under the hull policy, $89,003.60 to the United States as the mortgagee and the balance, $10,996.40, to Parisi;
On January 13, 1982, a jury returned a verdict for Parisi against Gloucester Marine in the amount of $145,000, and a judgment entered for that amount plus interest of $77,462.24. Gloucester Marine then filed a motion to amend the judg-
It is urged by Gloucester Marine that Parisi should not receive interest on the $100,000 paid to it and its mortgagee; but under general principles of subrogation it would seem that interest on the $100,000 portion of the judgment would ordinarily accrue not to the plaintiff but to the underwriter from the date it made payment thereof. Aetna Ins. Co. v. United Fruit Co., 304 U.S. 430, 438 (1938). Neitlich v. Amica Mut. Ins. Co., 7 Mass. App. Ct. 661, 664 (1979). We express no view whether Glacier General may have waived its right to interest by the March 19, 1976, agreement. Glacier General has not advanced its subrogation claim in this litigation, and the question has not been argued. If however, Parisi is ultimately to receive more interest than it would otherwise have been entitled to, it is by virtue of an agreement which cast upon Parisi all expenses for counsel fees and to which Gloucester Marine was a stranger.
Ordinarily a claim of satisfaction (here, partial satisfaction) raises a question of fact which, unless conceded, must be tried to the jury as the finder of fact. Murray v. Grossman, 289 Mass. 217, 221 (1935). Pollock v. Art Inst., 12 Mass. App. Ct. 919 (1981). Without deciding the points, we assume that Parisi failed to preserve any objection to the question’s being determined by a judge on motion after the trial and that the testimony by Enos in support of the motion (though of doubtful admissibility over Parisi’s objection) was sufficient in law to warrant a finding that there
The amended judgment is reversed, and a new judgment is to enter in accordance with the jury’s verdict.
So ordered.
Although the agreement does not mention it, the parties apparently agreed that Parisi was to have the remains of the vessel.