Charles Parisi, Inc. v. Gloucester Marine Railways Corp.

• Decision Date: 18 August 1983
• Citation: 16 Mass.App.Ct. 538,453 N.E.2d 459
• Parties: CHARLES PARISI, INC. v. GLOUCESTER MARINE RAILWAYS CORP.; Glacier General Assurance Co., Intervener.
• Court: Appeals Court of Massachusetts

Page 459

453 N.E.2d 459

16 Mass.App.Ct. 538

CHARLES PARISI, INC. v. GLOUCESTER MARINE RAILWAYS CORP.; Glacier General Assurance Co., Intervener.

Appeals Court of Massachusetts,

Essex.

Argued March 15, 1983.

Decided August 18, 1983.

Robert P. Sullivan, Lowell, for Charles Parisi, Inc.

Before ARMSTRONG, CUTTER and SMITH, JJ.

ARMSTRONG, Judge.

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 a mortgage on the vessel in the principal amount of approximately $85,000. On September 3, 1975, Glacier General filed a motion to intervene, alleging, among other things, that the United States was trying to make a claim under the policy, that Parisi was not cooperating in filing proof of loss and subrogation forms, that the damage to the vessel was such as to amount to a constructive total loss, giving it (Glacier General) the right to possession of the vessel, and that Parisi was improperly removing equipment and parts from it. The motion also mentioned that a company by the name of Trans-Atlantic Marine, Inc., was agent for Glacier General in writing the hull policy and was also the agent for other underwriters in writing a ship repair policy held by Gloucester Marine, under which the latter was covered for liability up to $100,000. Glacier General's motion to intervene was allowed.

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; ¹ (2) Parisi assigned to Glacier General by way of subrogation its claim against Gloucester Marine to the extent of $100,000; (3) from any recovery by Parisi in its action against Gloucester Marine the first $100,000 "[should] be paid to [Glacier General] under its rights of subrogation, less deductions for expenses of litigation, but excluding counsel fees"; and (4) control of the litigation was reserved to Parisi. The agreement was signed for Glacier General "as underwriter, acting by and through its agent, Trans-Atlantic Marine, Inc.", by one Enos, the president of Trans-Atlantic Marine, Inc.

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 judgment to recite damages in the amount of $45,000 and interest of $24,039. The basis of the motion was an alleged accord and satisfaction between Glacier General and the underwriters for Gloucester Marine's ship repair policy, under which Glacier General was credited with $100,000 at the time of the agreement between Parisi and Glacier General. The motion was supported by the testimony of Enos, who stated that the underwriters for the ship repair policy were Glacier General (two thirds) and Lloyds (one third) but did not introduce any documentary evidence of the alleged accord or the bookkeeping credit. As a result it is impossible to draw conclusions as to the exact terms of whatever understanding there may have been between the insurers. The judge allowed the motion, accepting, apparently, the argument of Gloucester Marine that it should not be liable for interest on $100,000 which its insurer had...