1 Fla. L. Weekly Supp. 271a

Insurance — Marine — Jury’s award of over $3 million for breach of insurance contract need not be reduced by $1 million for amount paid to plaintiff prior to litigation where verdict was supported by evidence, and jury was aware of the payment — Interest — Prejudgment — Plaintiff awarded prejudgment interest commencing on ninetieth day after date defendants were found to have waived filing of formal proof of loss where contract provided that proceeds of policy were due and payable within 90 days after proof of loss — Amounts of damage payments due from each separate underwriter calculated

JOHN H. MILLAR, Plaintiff, v. UNDERWRITERS AT LLOYDS LONDON and those certain Other Underwriters Listed on C.A. HANSEN CORP. Cover Note Number 5H04/224, Defendants. ROBIN J. KERSHAW, Counterplaintiff, v. JOHN H. MILLAR, BRUCE JOHN JAMES-CATTELL, and OCEAN YACHT MANAGEMENT, LTD., jointly and severally, Counterdefendants. 17th Judicial Circuit in and for Broward County, FL, Division CO. Case No. 89-008647. February 1, 1993. Mel Grossman, Judge. George D. Gabel, Jr. of Gabel Taylor, Jacksonville, FL, and Kenneth Geller and Mark M. Jaffe of Hill, Betts & Nash, New York, NY, for Plaintiff and Counterdefendants. Thomas H. Healey, New York, NY, Timothy J. Armstrong of Armstrong & Mejer, Miami, FL, and Edward A. Keane of Mahoney & Keane, New York, NY, for Defendants and Counterplaintiff.

MEMORANDUM OPINION ON PENDING MOTIONS

This is a suit for breach of a marine insurance contract. The plaintiff, John H. Millar, a resident of Monaco, was the owner of CENTURION, a brigantine yacht registered in Bermuda. The hull insurance policy was produced by C.A. Hansen Corp. in Florida for various Lloyd’s Underwriters and companies listed on C.A. Hansen Corp.’s Cover Note 5H04/224 (“Underwriters”). On April 8, 1985, CENTURION ran aground on the Bugio Sands at the mouth of the Tagus River in Lisbon, Portugal, resulting in damage to the vessel. In the course of handling the claim Underwriters ultimately paid $1,000,000 on account. The trial was conducted in Broward County, Florida, over a three week period in January 1992. The plaintiff claimed damages in excess of the amount already paid. Defendant Underwriters took the position that there was no coverage for the casualty under the policy and that because of fraudulent representations by plaintiff the $1,000,000 should be returned to Underwriters. The jury returned a verdict on January 30, 1992, in favor of plaintiff for $3,371,728, and found that plaintiff was not required to return the $1,000,000.

This matter is now before the Court on various post-trial motions. Subsequent to the return of the jury’s verdict, Underwriters filed a motion for judgment in accordance with motion for directed verdict or for a new trial. The Court entered a partial final judgment on April 7, 1992, subject to Underwriters’ post-trial motions. Underwriters then filed a motion to reconsider, vacate, set aside, alter or amend partial final judgment or to grant remittitur, and plaintiff moved to alter or amend partial final judgment to provide for prejudgment interest and attorney’s fees.

On July 29, 1992, the Court held a hearing on these motions. Having considered the arguments of counsel and the applicable law, the Court concludes that Underwriters’ post-trial motions should be denied, and that the plaintiff’s motion to alter or amend the partial final judgment should be, in part, granted. Although numerous issues have been raised by the post trial proceedings, the Court finds that the following matters merit some discussion.

A. The amount of the judgment.

The Court finds that the principal amount of the judgment should be $3,371,728.00, the amount found by the jury to be due and owing plaintiff. The verdict form, to which Underwriters did not object, asked the jury:

2. What is the total amount of damages sustained by plaintiff John Millar which he is entitled to recover under the insurance policy issued on behalf of defendant Underwriters?

Underwriters argue that the $1,000,000, which had been paid on account to plaintiff in December 1987, should be deducted from the amount of the verdict. The literal wording of the verdict, however, asked the jury to award the total amount of damages due plaintiff as a result of the trial. The jury was aware of the $1,000,000 which had previously been paid to plaintiff.¹

Since the jury’s verdict is supported by the evidence, it is the duty of this Court to enter judgment on the amount of that verdict. Lassitter v. International Union of Operating Engineers, 349 So.2d 622 (Fla. 1976); Phillips v. Ostrer, 481 So.2d 1241 (Fla. 3d DCA 1985); Ashland Oil, Inc. v. Pickard, 269 So.2d 714 (Fla. 3d DCA 1972) (damages for breach of contract are meant to restore the plaintiff to the position he would have been in if the contract had been fulfilled); see also, 22 Am.Jur.2d, Damages §82: “. . . damages recoverable for a breach of the obligation to pay money is the amount due, with interest thereon at the legal rate.”

As the court in Phillips, supra, held:

The determination of the amount of damages is a matter solely within the province of the jury.

. . .

Courts should construe verdicts to carry out the jury’s intentions.

. . .

A jury verdict may be set aside by the trial court only where the record affirmatively shows the impropriety of the verdict or the trial judge determines that the jury was influenced by considerations outside the record. . . . If evidence supports an award of damages, the award may not be disturbed.

481 So. 2d at 1246 (citations omitted).

Accordingly, consistent with these legal principles, the judgment will be in the amount of the verdict.

B. Prejudgment interest.

The Court finds that prejudgment interest should be awarded and should commence on the ninetieth day after the date that the jury found Underwriters had waived the filing of a formal proof of loss in special interrogatory no. 3 of the verdict form.² Since, the jury found that Underwriters had waived the filing of a formal proof of loss as of June 21, 1985, the proceeds of the insurance policy were due and payable within 90 days, pursuant to the terms of the contract.³ Accordingly, prejudgment interest should begin running from September 19, 1985.

Prejudgment interest is an element of pecuniary damages based on a sum of liquidated damages and calculated from the date the sum was due. Argonaut Insurance Co. v. May Plumbing Co., 474 So.2d 212 (Fla. 1985); Golden Door Jewelry v. Lloyds Underwriters, 758 F.Supp. 708 (S.D.Fla. 1991). This is true even when there is a genuine dispute as to whether the debt is actually due. Diversified Commercial Developers v. Form-Write, 450 So.2d 532 (Fla. 4th DCA 1984).

Several cases have discussed the meaning of the words “date the sum was due” with regard to the calculation of prejudgment interest. Those cases conclude that prejudgment interest should be awarded from the date that proceeds under the policy would have been due and, accordingly, find that where payment is due within a specified time after the filing of a proof of loss, prejudgment interest should be awarded after the expiration of that period. Bear v. New Jersey, 189 So.2d 252 (Fla. 1939); Taylor v. New Hampshire, 489 So.2d 207 (Fla. 2d DCA 1986); Miller v. First Service Corp., 471 So.2d 1332 (Fla. 3d DCA 1985); South Carolina Ins. Co. v. Pensacola Home and Savings Assc., 406 So.2d 1280 (Fla. 1st DCA 1981); Columbia Casualty Co. v. Southern, 868 F.2d 1217 (11th Cir. 1989).

The Court concludes that plaintiff is not entitled, however, to an award of prejudgment interest on the $1,000,000 that was paid on account.

C. Attorney’s Fees.

The Court concludes that plaintiff is not entitled to an award of attorney’s fees.

D. Conclusion.

In conclusion, the final judgment will be in the amount of the jury verdict, $3,371,728, plus prejudgment interest from September 19, 1985 to January 30, 1992, the date of the verdict, and the judgment shall be entered, simultaneously herewith, nunc pro tunc as of January 30, 1992. The pending motions are being dealt with in separate orders.

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¹The verdict form itself asked a question about that payment. The jury answered in the negative interrogatory 4 on the verdict form which asked whether “[o]n the counterclaim of defendant Underwriters, are Underwriters entitled to recover back from plaintiff John Millar the $1,000,000 paid to him on account?”

²Interrogatory no. 3 asked the jury:

Did defendant Underwriters waive the filing of a formal proof of loss?

The jury answered this question yes, and found that the date of waiver was June 21, 1985.

³The policy provided:

In case of loss payable under this Policy, such loss to be paid within ninety (90) days after satisfactory proof of loss and proof of interest in the property insured, all indebtedness of the Assured being first deducted.

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FINAL JUDGMENT

Pursuant to the verdict rendered in this action

IT IS ADJUDGED that Plaintiff, John H. Millar, recover from Defendant Underwriters at Lloyds London and those certain other Underwriters listed on C.A. Hansen Corp. Cover No. 5H04/224, the sum of $3,371,728.00, plus prejudgment interest in the amount of $2,574,706.93, for a total judgment of $5,946,434.93. This final judgment is entered nunc pro tunc as of January 30, 1992, the date of the jury verdict and the total judgment shall bear interest from January 30, 1992, at the statutory rate of 12% per annum for which let execution issue in the following percentages and amounts from:

Underwriters at Lloyds London in respect of their 68.430% participation in a policy of insurance evidenced by C.A. Hansen Corp. Cover Note Number 5H04/224, the sum of $4,069,145.42 plus interest on this sum from January 30, 1992, until the date of satisfaction of this judgment at the rate of $1,337.80 per day;

Orion Insurance Company, Plc in respect of its 2.972% participation in the policy of insurance evidenced by C.A. Hansen Corp. Cover Note Number 5H04/224, the sum of $176,728.05 plus interest on this sum from January 30, 1992, until the date of satisfaction of this judgment at the rate of $58.10 per day;

The Nippon Fire and Marine Insurance Company (UK) Ltd. in respect of its .743% participation in the policy of insurance evidenced by C.A. Hansen Corp. Cover Note Number 5H04/224, the sum of $44,182.01 plus interest on this sum from January 30, 1992, until the date of satisfaction of this judgment at the rate of $14.53 per day;

Minster Insurance Company, Ltd. in respect of its .557% participation in the policy of insurance evidenced by C.A. Hansen Corp. Cover Note Number 5H04/224, the sum of $33,121.64 plus interest on this sum from January 30, 1992, until the date of satisfaction of this judgment at the rate of $10.89 per day;

Yorkshire in respect of its 2.785% participation in the policy of insurance evidenced by C.A. Hansen Corp. Cover Note Number 5H04/224, the sum of $165,608.21 plus interest on this sum from January 30, 1992, until the date of satisfaction of this judgment at the rate of $54.45 per day;

Bishopgate Insurance, Ltd. in respect of its 1.857% participation in the policy of insurance evidenced by C.A. Hansen Corp. Cover Note Number 5H04/224, the sum of $110,425.30 plus interest on this sum from January 30, 1992, until the date of satisfaction of this judgment at the rate of $36.30 per day;

The British Law Insurance Company, Ltd. in respect of its 1.486% participation in the policy of insurance evidenced by C.A. Hansen Corp. Cover Note Number 5H04/224, the sum of $88,364.02 plus interest on this sum from January 30, 1992, until the date of satisfaction of this judgment at the rate of $29.05 per day;

Andrew Weir Insurance Company, Ltd. in respect of its .743% participation in the policy of insurance evidenced by C.A. Hansen Corp. Cover Note Number 5H04/224, the sum of $44,182.01 plus interest on this sum from January 30, 1992, until the date of satisfaction of this judgment at the rate of $14.53 per day;

The Threadneedle Insurance Company, Ltd. in respect of its 2.043% participation in the policy of insurance evidenced by C.A. Hansen Corp. Cover Note Number 5H04/224, the sum of $121,485.67 plus interest on this sum from January 30, 1992, until the date of satisfaction of this judgment at the rate of $39.94 per day;

The Ocean Marine Insurance Company, Ltd. in respect of its 1.486% participation in the policy of insurance evidenced by C.A. Hansen Corp. Cover Note Number 5H04/224, the sum of $88,364.02 plus interest on this sum from January 30, 1992, until the date of satisfaction of this judgment at the rate of $29.05 per day;

Sphere Drake Insurance, Plc. in respect of its .743% participation in the policy of insurance evidenced by C.A. Hansen Corp. Cover Note Number 5H04/224, the sum of $44,182.01 plus interest on this sum from January 30, 1992, until the date of satisfaction of this judgment at the rate of $14.53 per day;

River Thames Insurance Company, Ltd. in respect of its .371% participation in the policy of insurance evidenced by C.A. Hansen Corp. Cover Note Number 5H04/224, the sum of $22,061.27 plus interest on this sum from January 30, 1992, until the date of satisfaction of this judgment at the rate of $7.25 per day;

Guardian Rovex in respect of its 1.485% participation in the policy of insurance evidenced by C.A. Hansen Corp. Cover Note Number 5H04/224, the Sum of $88,304.56 plus interest on this sum from January 30, 1992, until the date of satisfaction of this judgment at the rate of $29.03 per day;

Excess Insurance Group, Ltd. in respect of its 1.857% participation in the policy of insurance evidenced by C.A. Hansen Corp. Cover Note Number 5H04/224, the sum of $110,425.30 plus interest on this sum from January 30, 1992, until the date of satisfaction of this judgment at the rate of $36.30 per day;

The Northern Assurance Company, Ltd. in respect of its 1.857% participation in the policy of insurance evidenced by C.A. Hansen Corp. Cover Note Number 5H04/224, the sum of $110,425.30 plus interest on this sum from January 30, 1992, until the date of satisfaction of this judgment at the rate of $36.30 per day;

English and American Insurance Company, Ltd. in respect of its .743% participation in the policy of insurance evidenced by C.A. Hansen Corp. Cover Note Number 5H04/224, the sum of $44,182.01 plus interest on this sum from January 30, 1992, until the date of satisfaction of this judgment at the rate of $14.53 per day;

Norwich Union Insurance Group in respect of its .928% participation in the policy of insurance evidenced by C.A. Hansen Corp. Cover Note Number 5H04/224, the sum of $55,182.92 plus interest on this sum from January 30, 1992, until the date of satisfaction of this judgment at the rate of $18.14 per day;

Prudential Assurance Company, Ltd. in respect of its 1.486% participation in the policy of insurance evidenced by C.A. Hansen Corp. Cover Note Number 5H04/224, the sum of $88,364.02 plus interest on this sum from January 30, 1992, until the date of satisfaction of this judgment at the rate of $29.05 per day;

London & Hull Maritime Insurance Company, Ltd. in respect of its 1.486% participation in the policy of insurance evidenced by C.A. Hansen Corp. Cover Note Number 5H04/224, the sum of $88,364.02 plus interest on this sum from January 30, 1992, until the date of satisfaction of this judgment at the rate of $29.05 per day;

Assicurazioni Generali Spa in respect of its .928% participation in the policy of insurance evidenced by C.A. Hansen Corp. Cover Note Number 5H04/224, the sum of $55,182.92 plus interest on this sum from January 30, 1992, until the date of satisfaction of this judgment at the rate of $18.14 per day;

The Insurance Corporation of Ireland, Plc. in respect of its .743% participation in the policy of insurance evidenced by C.A. Hansen Corp. Cover Note Number 5H04/224, the sum of $44,182.01 plus interest on this sum from January 30, 1992, until the date of satisfaction of this judgment at the rate of $14.53 per day;

Commercial Union Assurance Company, Plc. in respect of its 1.114% participation in the policy of insurance evidenced by C.A. Hansen Corp. Cover Note Number 5H04/224, the sum of $66,243.29 plus interest on this sum from January 30, 1992, until the date of satisfaction of this judgment at the rate of $21.78 per day;

National Employers Mutual Gen. in respect of its .371% participation in the policy of insurance evidenced by C.A. Hansen Corp. Cover Note Number 5H04/224, the sum of $22,061.27 plus interest on this sum from January 30, 1992, until the date of satisfaction of this judgment at the rate of $7.25 per day.

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