In arguing that a Massachusetts court would apply the North Carolina statute of limitations, Hemric contends that Massachusetts would depart from its long settled rule that the statute of limitations is a matter of procedure governed by the law of the forum. E.g., Brown v. Great American Indemnity Co., 298 Mass. 101, 104, 9 N.E.2d 547 (1937); Clarke v. Pierce, 215 Mass. 552, 553, 102 N.E. 1094 (1913); Bulger v. Roche, 28 Mass. (11 Pick.) 36, 38-39 (1831). While Massachusetts has recently indicated a willingness to apply modern modes of conflict analysis to substantive choice of law problems, e.g., Choate, Hall Stewart v. SCA Services, Inc., 378 Mass. 535, 392 N.E.2d 1045 (1979); Pevoski v. Pevoski, 371 Mass. 358, 358 N.E.2d 416 (1976), we are aware of no case suggesting that Massachusetts would abandon the traditional rule that the local law of the forum determines whether an action is barred by a statute of limitations.
The statutes of limitations have usually been categorized as "procedural," so that the applicable Massachusetts limitation provision becomes the law of the case. Brown v. Great American Indemnity Company, 298 Mass. 101, 9 N.E.2d 547 (1937). The plaintiff urges this Court to apply North Carolina law, specifically the Worker's Compensation Act which provides in relevant part:
The applicable statute of limitations is that of Massachusetts. Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945); Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Brown v. Great Am. Indem. Co., 298 Mass. 101, 104, 9 N.E.2d 547 (1937); Clarke v. Pierce, 215 Mass. 552, 553, 102 N.E. 1094 (1913). M.G.L.A. c. 260, § 4, in pertinent part states that "actions for . . . slander, libel . . . shall be commenced only within two years next after the cause of action accrues."
The question whether an enactment is a conditional statute or a statute of limitations is a matter of statutory interpretation. See Brown v. Great Am. Indem. Co., 298 Mass. 101 (1937). We think it significant that in this instance the language of time limitation appears in a separate statute from that creating the purported substantive right, and that c. 260, in which the language appears, aggregates statutes of limitation generally.
Second, it has been well-established law for many years that the insurer may be obligated to pay costs or interest on a judgment recovered against its insured, although these terms may bring the total payment beyond the limits set in its policy. Powell v. T.A.C. Taxi, Inc., supra; Brown v. Great American Indemnity Co., 298 Mass. 101, 9 N.E.2d 547, 111 A.L.R. 1065; Maryland Casualty Co. v. Wilkerson, 210 F.2d 245 (4th Cir. 1954). Third, the language used in this section of the policy is consistent with the view that interest on the entire judgment until 5 April 1963 should be allowed. Finally, section (a) quoted above reads in part: "* * * but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient."
The original papers do not establish that rights as between the then defendants, Royce and Pallatroni, were there conclusively litigated on an adversary basis. See Brown v. Great Am. Indem. Co. 298 Mass. 101, 105. See also Gleason v. Hardware Mut. Cas. Co. 324 Mass. 695, 697-698, S.C. 329 Mass. 56, 59-60.
Secondly, it has been established law for a long period of time that the insurer may be obligated to pay costs or interest on judgment recovered against the insured although these items may bring the total payment beyond the limits set in the policy. Brown v. Great American Indemnity Co., 298 Mass. 101; Maryland Casualty Co. v. Wilkerson, 210 F.2d 245 (4th Cir. 1954). Thirdly, the language used in this section of the policy is consistent with the view that interest on the entire judgment should be allowed. "The phrase referring to interest uses the term `judgment' without qualification while in the same clause the phrase limiting the duration of the liability for interest refers to `such part of the judgment as does not exceed the limit of the company's liability thereon.' Obviously the insurer knew how to qualify the term `judgment' to achieve the result that it urges. It did not do so."
It is well settled in our jurisdiction that a bill in equity by an injured person to reach and apply the proceeds of an insurance policy is a separate proceeding from an action like the present one and is not res judicata as to it. Brown v. Great American Indemnity Co. 298 Mass. 101. Gleason v. Hardware Mutual Casualty Co. 324 Mass. 695, 699. S.C. 329 Mass. 56. Crompton v. Lumbermens Mutual Casualty Co. 334 Mass. 207. Furthermore we are of opinion that the findings of the judge in the equity suit as such would not be admissible if the present action went to trial.
In both equity suits the insured had been joined as a defendant, had not defended, and had permitted a decree pro confesso to be entered against him. On the authority of Brown v. Great American Indemnity Co. 298 Mass. 101, we held in the Gleason case that as the parties then before the court had not been adversaries in the equity suit, the decree therein did not make res judicata as between those parties the issues there tried for the first time. In the motion the defendant prayed for judgment on the ground that "the right of the plaintiff to recover herein depends upon the validity of the lien, if any, which one Albert A. Hansen has upon the proceeds of the insurance . . .," that this court had held that the defendant might "test the validity" of that lien, and that it had already done so in the equity suit.
The demurrer in that case, however, was sustained because the declaration did not negative certain losses which were not covered by the policy. See also Brown v. Great American Indemnity Co. 298 Mass. 101; Gleason v. Hardware Mutual Casualty Co. 329 Mass. 56. The defendant is not remediless since it may, if so advised, test the validity of Hansen's lien upon the proceeds of the insurance and show from facts other than those adjudicated in the action brought by Hansen against the plaintiff which was defended by the company that it has a defence under the guest coverage provision.