Heard: October 9, 2018.
action commenced in the Superior Court Department on August
12, 2013. The case was tried before Rosalind H. Miller, J.;
postverdict motions to offset the jury award and for
attorney's fees and costs were heard by her; and judgment
was entered by her.
E. Regan for the defendant.
K. Bennett for the plaintiff.
Present: Meade, Sullivan, & McDonough, JJ.
defendant, G.A. Williams & Sons, Inc. (Williams), appeals
from a judgment entered in Superior Court following the
denial of its motion to offset the jury award in this tort
action brought against it by Bunker Hill Insurance Company
(Bunker Hill), as subrogee of Shirley Gilbody, with the
remediation costs paid by its insurer to Bunker Hill pursuant
to an earlier declaratory judgment action. The motion judge
determined that the earlier payment was from a collateral
source and, as such, was not required to be offset against
the jury verdict. Judgment entered against the defendant in
the full amount of the jury verdict. Because the source of
the offset was not collateral to the defendant, we determine
that the defendant's motion for offset of damages should
have been allowed, and we modify the judgment
case arises from an oil spill on property owned by Shirley
Gilbody and insured by a homeowner's insurance policy
purchased by her and issued by Bunker Hill. Williams
installed an oil tank in Gilbody's home in 2003 and, at
all material times, was the oil service company for Gilbody.
The oil spill occurred in April, 2012. Williams had purchased
and paid the premiums for an insurance policy with
International Insurance Company of Hannover, Ltd. (Hannover).
The parties do not dispute that the policy was in effect at
all times material to this case. The Hannover policy covered,
as an insured location, the property owned by Gilbody.
the oil spill occurred, Gilbody notified her insurer, Bunker
Hill. Bunker Hill paid for the full remediation of the
property, $262, 894.05, under a reservation of rights.
Pursuant to a declaratory judgment action, Bunker Hill sought
compensation from Hannover for damage to the insured
location, Gilbody's property. In that declaratory
judgment action, a Superior Court judge determined that both
the Bunker Hill policy and the Hannover policy covered
Gilbody's property, that each policy contained
"other insurance clauses," and that these clauses
were mutually repugnant. See Mission Ins. Co.
v. United States Fire Ins. Co., 401 Mass.
492 (1988). The judge determined that each insurer would bear
fifty percent of the cost of remediation of Gilbody's
property. A declaratory judgment entered, and Hannover
reimbursed Bunker Hill for fifty percent of the cost of
remediation, $131, 447.03.
2012, Bunker Hill, as subrogee to its insured, Gilbody, also
filed the present action against Williams for negligence,
breach of contract, and violation of G. L. c. 21E (negligence
action). After trial, the jury rendered a
negligence verdict in favor of Gilbody in the full amount of
the cost of the remediation of the property, $262,
894.05. Williams then filed its motion to offset
the amount of damages in the negligence action by the amount
that Bunker Hill had received pursuant to Williams's
insurance policy with Hannover in the declaratory judgment
action, $131, 447.03.
Hill sought entry of judgment for the full amount of the jury
verdict arguing that the payment to it from Hannover on the
declaratory judgment was made pursuant to the remediation
coverage in Williams's insurance policy that insured
Gilbody and, therefore, was a payment from a source
collateral to the judgment in the negligence action against
Williams. The judge agreed with Bunker Hill and determined
that because the claims were "analytically
different," the collateral source rule applied and
precluded an offset. Judgment entered in the full amount of
the jury verdict.
measure of damages is a question of law reviewed de novo on
appeal, see Burkev.Rivo, 406
Mass. 764, 764-765 (1990) (proper measure of damages
recoverable in tort is question of law), but the amount of
damages awarded is a factual issue reviewed on appeal under
an abuse of discretion standard. See Bartleyv.Phillips, 317 Mass. 35, 43 (1944)."
Twin FiresInv., LLCv.Morgan
Stanley Dean Witter & Co., 445 Mass. 411, 424
(2005). Here, we determine that the damage award in this case
is the result of an error of law; we order the modification
of judgment to reflect the offset. See Brownv.Leighton, 385 Mass. 757, 758 (1982)
("counsel agreed that whether the defendant ...