PAUL J. SANTOS, JR., individually and as executor [Note 1], & another [Note 2] VS. CHRYSLER CORPORATION & another [Note 3]

ABRAMS, J. The wife and three children of the plaintiff, Paul J. Santos, Jr., were killed in an automobile accident. He sued the defendant Chrysler Corporation (Chrysler), the manufacturer of his 1986 Plymouth Voyager minivan, for negligence, breach of warranty of merchantability, and wrongful death. The plaintiff also sued Post Motors, Inc. (Post Motors), the retail seller, for negligence. Post Motors cross-claimed for indemnification from Chrysler. A jury returned special verdicts against Chrysler. The jury determined that Post Motors was not negligent. But see note 30, infra. The judge concluded that Post Motors was entitled to indemnity from Chrysler. Chrysler appeals, alleging error in the denial of its motions for a directed verdict, mistrial, judgment notwithstanding the verdict, and a new triaL

Chrysler challenges several of the judge's evidentiary rulings. It also argues that the judge erred by permitting improper closing argument, by failing to eliminate the plaintiff's wrongful death recoveries, and by entering the judgment retroactively. In addition, Chrysler appeals from the judgment for Post Motors on its cross claim for indemnity. We allowed Chrysler's application for direct appellate review. We affirm the judgments against Chrysler in favor of the plaintiff. We remand the judgment against Chrysler in favor of Post Motors for the calculation of interest in accordance with Sterilite Corp. v. Continental Cas. Co., 397 Mass. 837 (1986).

1. The trial. In February, 1990, the plaintiff was driving his 1986 Plymouth Voyager minivan in New Hampshire. The plaintiff, his wife, and their three children were returning to Belmont from a ski trip in Canada. The plaintiff applied the brakes after approaching traffic which was slowed behind a snow plow. The rear of the minivan slid to the right and the vehicle swerved into the oncoming lane, where it was hit broadside by a Ford Bronco, The plaintiff's wife and three children died as a result of the accident. The plaintiff sustained personal injuries.

The plaintiff offered expert testimony to establish that the cause of the accident was premature rear wheel lockup. Rear wheel lockup occurs when a driver applies the brakes, the rear wheels lock before the front, causing the rear of the vehicle to

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skid [Note 4]. The plaintiff claimed that the rear wheel lockup was premature, meaning that it happened in circumstances in which an ordinary driver reasonably would not anticipate. The plaintiff alleged that premature rear wheel lockup was a design defect, which, in turn, was caused by one or more design defects that existed or could have occurred in the minivan's brake system [Note 5]. Chrysler contended that the accident was caused by driver error in hazardous winter weather.

A jury found that Chrysler was negligent, grossly negligent, and had violated the implied warranty of merchantability. The jury determined that Post Motors was not negligent. The jury also found the plaintiff to be ten per cent negligent. The jury awarded $12.8 million in compensatory damages for the wrongful deaths of the wife and children, the conscious pain and suffering of the wife, the wife's lost future earnings, and the plaintiff's personal injuries. The jury also awarded $15,705 in punitive damages [Note 6].

In March, 1996, Chrysler filed motions for judgment notwithstanding the verdict, for a new trial, and to correct the judgment. The judge allowed in part the motion for judgment notwithstanding the verdict as to the award of lost future earnings of the wife. The other motions were denied. In June, 1997, the judge allowed the plaintiff's motion for entry of separate

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and final judgment, retroactively entering judgment to September, 1996. In January, 1998, the judge entered a separate judgment for Post Motors on the indemnity claim.

2. Evidentiary rulings. a. Other incident evidence. Chrysler argues that the judge erred by admitting, over its objection, the testimony of six Chrysler minivan owners regarding other incidents involving their own minivans as well as National Highway Transportation Safety Administration (NHTSA) vehicle owners' questionnaires (VOQs) submitted by the six owners. The evidence was admitted for three purposes: to establish notice; to corroborate the alleged defect; and to refute evidence that the minivan was designed without safety hazards [Note 7].

Evidence of incidents similar to the plaintiffs is viewed with disfavor because the other incidents "may have been the consequence of idiosyncratic circumstances. [Note 8] Read v. Mt. Tom Ski Area, Inc., 37 Mass. App. Ct. 901, 902 (1994). However, such evidence is admissible if the judge first determines that the jury could find a substantial similarity in circumstances[8]. See Kromhout v. Commonwealth, 398 Mass. 687, 693 (1986). See also Simmons v. Monarch Mach. Tool Co., 413 Mass. 205, 214 (1992); Griffin v. General Motors Corp., 380 Mass. 362, 365366 (1980); Robitaille v. Netoco Community Theatre of N. Attleboro, Inc., 305 Mass. 265, 268 (1940). The judge also must determine that there is minimal danger of unfairness, confusion, and undue expenditure of time in the trial of collateral issues. See Kromhout, supra; Robitaille, supra. The admission of other incident evidence rests within the judge's discretion. See id.

Chrysler points to several differences between the other incidents and the plaintiff's accident, arguing that the judge erred in concluding that the jury could find the incidents were sufficiently similar to the plaintiff's accident. Five of the six witnesses owned minivans of a different model year than the plaintiff's minivan. Four of the six minivans had a shielded height sensing proportioning valve (HSPV), while the plaintiffs

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was unshielded [Note 9]. None of the other incidents occurred on snow or ice.

We conclude that, although they did not replicate the exact circumstances of the plaintiff's accident, the other incidents could be found by the jury to be substantially similar. Each of the witnesses described the rear ends of their minivans skidding or swerving following hard application of the brakes. Although not all the witnesses specifically stated that their wheels "locked up," the jury could infer the phenomenon from the words used by the witnesses [Note 10]. There was evidence that the braking system was essentially the same in all the minivans, regardless of whether the HSPVs were shielded or not. In addition, the plaintiff offered numerous additional reasons for premature rear wheel lockup, see note 5, supra, aside from contamination of the unshielded HSPV. All the witnesses testified to incidents on wet roads. Although there was evidence that the plaintiff's accident occurred in snowy conditions, there was evidence that most of the snow had been cleared and the road was only wet. The differences between the other incidents and the plaintiff's accident could be considered by the jury in terms of weight of the evidence [Note 11]. Wheeler v. John Deere Co., 862 F.2d 1404, 1408 (10th Cir. 1988).

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Chrysler next argues that substantial similarity between the other incidents and the plaintiff's accident could not be established without expert testimony regarding the existence of the same defect, premature rear wheel lockup, in the witnesses' minivans and the causative relationship between the defect and the incidents. In Chrysler's view, the witnesses, because they were ordinary drivers, were not capable of identifying premature wheel rear lockup. Chrysler relies on United States v. General Motors Corp., 841 F.2d 400 (D.C. Cir. 1988), in which the court said that "consumers were not capable of discerning whether what they experienced was an incidence of premature rear-wheel lock-up." Id. at 412.

The General Motors case is inapposite. There, the government brought an action under the National Traffic and Motor Vehicle Safety Act, alleging that General Motors vehicles had defective braking systems that caused premature rear wheel lockup. Id. at 401. The government "relied heavily" on other incident evidence, in the form of consumer complaints, to meet its burden of proving a defect. Id. at 406. The court held that the consumer complaints were insufficient to establish the existence of a defect. Id. at 411-412.

Here, the plaintiff did not rely on the other incident evidence to prove the existence of a defect in Chrysler minivans. Evidence of a defect was introduced in the form of expert testimony. The other incident testimony was put in evidence to establish notice, to corroborate the alleged defect, and to refute evidence that the minivan was designed without safety hazards. The judge instructed the jurors that they could consider the evidence only for these purposes during the testimony and again in the charge [Note 12]. Thus, unlike the government in General Motors, the plaintiff did not rely on the other incident evidence to prove the defect. The jury could assess the similarity of the other

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incidents to the plaintiffs accident based on the explanation of premature rear wheel lockup presented to them by the plaintiffs expert. Further expert testimony identifying the defects in the witnesses' minivans and the causes of their incidents was not required [Note 13].

b. Chrysler's expert statistician. Chrysler argues that the judge erred by excluding the testimony of its expert. The expert analyzed the data contained in the NHTSA's fatal accident reporting system (FARS), which records various data about fatal accidents. The expert would have testified that, if Chrysler minivans had a propensity toward premature rear wheel lockup, then they would be involved in more accidents and more fatal accidents. She concluded from her analysis of the FARS data that Chrysler minivans were no more prone than other vehicles to fatal accidents on wet, snowy, or icy roads due to skidding or loss of control. Chrysler offered the expert's testimony to rebut the testimony of the other incident witnesses by showing that Chrysler minivans did not have a propensity to skid out of control due to rear wheel lockup.

The judge excluded the expert's testimony because it was based on speculation, was not relevant, and because the danger of the jurors being misled exceeded the probative value of the expert's opinion. We conclude that there was no abuse of discretion.

The judge could conclude that the factual foundation for the expert's opinion was insufficient. From the FARS database, the

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expert could not tell whether the circumstances of the accidents reported matched the circumstances of the plaintiffs accident. The FARS data did not contain any direct information on the use of brakes before or during the accidents, on any loss of control or skidding, or on the contribution of rear wheel lockup. The expert tried to isolate a comparable subset of data by making her own inferences regarding which accidents involved braking, skidding or rear wheel lockup. The expert, however, had no expertise in engineering or accident reconstruction. She said she used her common sense as a driver.

Given the infirmities in the data, the judge could conclude that the testimony was speculative. See Commonwealth v. Gomes, 403 Mass. 258, 274 (1988) (courts reluctant to admit statistical evidence where probabilities on which evidence depends are based on speculation); Commonwealth v. Neverson, 35 Mass. App. Ct. 913, 915 (1993) Judge properly excluded expert's opinions that did not relate to expert's field of expertise). All that the expert could conclude from her subset of data was that Chrysler minivans were no more prone to fatal accidents on wet, snowy, or icy roads than other vehicles. The plaintiff, however, never took the position that the defect he identified resulted in a disproportionate number of fatal accidents. The judge therefore also could conclude that the testimony was irrelevant and misleading.

Contrary to Chrysler's suggestion, this conclusion does not run afoul of Kromhout v. Commonwealth, 398 Mass. 687 (1986). In Kromhout, the plaintiff brought a wrongful death action, claiming that a defect in a State highway caused the accident in which her husband was killed. Id. at 687, 688-689. We concluded that it was error for the judge to admit evidence that, over the course of six years, twenty-one accidents occurred in the same location, and that this number of incidents was significant. Id. at 692. We said that the error was exacerbated by the judge's failure to admit the Commonwealth's statistics on the average daily traffic volumes on the road in question. Id. at 693-694.

Chrysler never sought to admit statistics on the number of minivans in use at the time of the six witnesses' incidents or the collective number of miles driven by all the minivans in service. The plaintiff never elicited expert testimony that the number of incidents reported by the six witnesses was significant. Moreover, as the judge stated in her ruling, had the expert been

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able to whittle down the FARS data to include only accidents that involved braking, skidding, or rear wheel lockup, the evidence would have been admitted. We conclude that the judge did not err or abuse her discretion by excluding the expert's testimony.

c. Recalls. Over Chrysler's objection, the judge admitted evidence of recalls of minivans from the 1984 and 1985 model years. The purpose of the recalls was to install a shield over the HSPV. According to the recall letter, Chrysler determined that the shield was necessary because of the potential of a small stone's becoming entrapped in the HSPV. Chrysler notified owners that a contaminated HSPV could increase stopping distances during hard braking when the vehicle was lightly loaded. The plaintiff introduced the evidence of recalls to show that Chrysler was on notice that the HSPV could not be relied on to prevent premature rear wheel lockup. Chrysler argues that the evidence should not have been admitted because it was irrelevant and unfairly prejudicial. We do not agree.

We have held that, if a defect that was the subject matter of a recall was present in the plaintiff's vehicle at the time of the accident, evidence of the recall is admissible to show that the defect was present in the plaintiff's vehicle when it left the hands of the manufacturer. See Carey v. General Motors Corp., 377 Mass. 736, 744 (1979). While the plaintiff offered such evidence on the issue of notice, not to show that the defect was present when it left Chrysler's hands, we conclude that the same standard of admissibility applies, and that the plaintiff met the standard.

Chrysler argues that the evidence was irrelevant because the defect that was the subject matter of the recall letter was not present in the plaintiff's minivan. The recall letter referred to the danger of a stone getting caught in the HSPV and increasing braking distances during light load operation. In contrast, the plaintiff alleged, as one theory of the accident, that snow was caught in his HSPV, causing premature rear wheel lockup under moderate load operation.

The jury could have concluded that the defect that was the subject matter of the recall existed in the plaintiff's vehicle. There was evidence that Chrysler was concerned about snow

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contamination of the HSPV when it issued the recalls [Note 14]. The plaintiff offered expert testimony that snow was probably caught in his HSPV at the time of the accident [Note 15]. There was also evidence that Chrysler was concerned about premature rear wheel lockup in addition to increased braking distances [Note 16].

From all this evidence, the jury could conclude that Chrysler's concerns that prompted the recall were broader than those set forth in the recall letter. The evidence suggested that Chrysler was concerned about snow contamination and rear wheel skid. The plaintiff presented evidence from which the jury could conclude that these conditions were present in his vehicle on the day of the accident [Note 17]. We conclude that the judge correctly admitted evidence of the recalls.

d. Expert testimony criticizing the braking system. Chrysler challenges the testimony of two expert witnesses, over Chrysler's objection, to numerous potential conditions which

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could interact with the design of the HSPV and lead to rear wheel lockup. See note 5, supra. According to Chrysler, the plaintiff was allowed to show alleged design defects in the braking system without regard to whether the defects were present in the vehicle on the day of the accident. Chrysler relies on Carey v. General Motors Corp., supra, to argue that the admission of "a litany of irrelevant defects caused substantial and unfair prejudice" and warrants a new trial. We disagree.

The expert testimony was offered to establish causation and to demonstrate that there was a design defect in the braking system. As to the design defect, the question was whether the braking system had a propensity to experience premature rear wheel lockup. If a propensity were found, the jury was then required to determine "whether this propensity, resulting from conscious design choices of the manufacturer, rendered the product unreasonably dangerous to its users." Back v. Wickes Corp., 375 Mass. 633, 642 (1978). This raised a question whether the design of the braking system was "socially acceptable." Id. The experts' opinions about defects in the brake design that could cause premature rear wheel lockup under certain conditions was relevant to whether the product was unreasonably dangerous. The evidence was admissible.

As to causation, Chrysler argues that there was insufficient evidence to establish that the factors described by the expert witnesses, note 5, supra, actually, rather than potentially, caused the rear wheel lockup [Note 18]. The expert testimony was that the rear wheels locked, causing the vehicle to turn and enter the opposite lane of traffic. There was testimony that the rear skid was caused by any one of or a combination of the factors and design defects described, note 5, supra. From this testimony, the jury could conclude that there was a "greater likelihood or probability [that the accident was caused by premature rear wheel lockup and that the premature rear wheel lockup] was due to causes for which the defendant was responsible than from any

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other cause." Carey, supra at 740. The infirmities in the testimony, suggested by Chrysler, go to the weight, not admissibility, of the testimony. See Stark v. Patalano, 30 Mass. App. Ct. 194, 200 (1991) (challenge to testimony that rear wheel lockup was caused by faulty proportioning valve was one of weight, rather than admissibility of evidence).

e. Memorandum and testimony of retired Chrysler engineer. Chrysler argues that the judge should have excluded the testimony of Joseph Douglas as well as a memorandum he wrote. The plaintiff offered the evidence to further his theory that the premature rear wheel lockup he experienced was caused by the "increased efficiency" and rapid wear of his rear brake linings. See note 5, supra.

Douglas was a braking engineer at Chrysler for more than twenty years before he retired in 1979. Shortly before he retired, Douglas wrote a memorandum entitled "Proposed 1981 Model Year 10[-inch] and ll[-inch] Rear Brake Lining." The memorandum reported the results of Douglas's investigation of reports of rear brake "bum up" and rear wheel skid. Douglas collected data from leased vehicles, endurance vehicles, taxicabs, passenger vehicles, and station wagons - but not minivans, which had not yet been developed. He concluded that these Chrysler vehicles suffered from premature rear wheel skid after a short period of use. This tendency was accompanied by increased efficiency and rapid wear of the vehicles' rear brake linings. The plaintiff states that he offered Douglas's testimony and memorandum "to shed light on Chrysler's knowledge of the potential dangers posed by its design of the minivan braking system and its longstanding failure to address them."

Chrysler argues that Douglas's memorandum and his testimony were irrelevant, inflammatory, and unfairly prejudicial. Dovas was not employed by Chrysler in the early 1980s when the minivan was developed. He played no role in the design of the minivan's braking system. He was never employed in the department that developed the minivan. The linings used on the minivan's rear drum brakes were of a different size and manufacturer than those Douglas tested. Chrysler also specifically contests the judge's denial of its motion to strike Douglas's testimony that he told his boss that "we were killing people." We conclude that there was no error.

"The general rule to be followed in this Commonwealth is that all relevant evidence is admissible unless within an

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exclusionary rule. Evidence is relevant if it renders the desired inference more probable than it would be without the evidence." Poirier v. Plymouth, 374 Mass. 206, 210 (1978). If the evidential value may be overwhelmed by its prejudicial effect, admissibility is to be determined in the sound discretion of the judge. Green v. Richmond, 369 Mass, 47, 60 (1975).

We conclude that Douglas's memorandum and testimony were relevant. They demonstrate a widespread tendency [Note 19] of Chrysler vehicles to experience rear wheel skid because of over-efficient rear brake linings. The plaintiff demonstrated that the brake linings in his minivan were excessively worn. The jury could draw the inference that Chrysler was aware of the tendency of the rear wheels of its vehicles to lockup prematurely due to over-efficient rear brake linings, in accordance with one of the plaintifFs theories of the accident, and that this tendency was repeated in the minivan design. See note 5, supra.

The memorandum and testimony were not unfairly prejudicial. Chrysler argues that the evidence was prejudicial because, contrary to Douglas's testimony, Chrysler subsequently tested vehicles for rear wheel skid. This goes to the weight of the evidence, not its admissibility. As for Douglas's testimony that Chrysler was killing people, Chrysler objected to that statement arguing it was not responsive, not that it was inflammatory. Moreover, the witness implied that he made the statement after losing his temper. In its context, we do not view the statement as inflammatory. The judge was correct to admit Douglas's testimony and memorandum.

3. Closing argument. Chrysler next argues that the judge erred by permitting improper closing argument by the plaintiff [Note 20]. In Chrysler's view, the plaintiffs counsel criticized Chrysler for not presenting an expert to compare the Chrysler minivan with other vehicles, after persuading the judge to exclude the testimony of Chrysler's expert [Note 21]. We disagree. Counsel could argue the absence of evidence that premature rear wheel lockup

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was a generic problem. Chrysler's expert would not have testified otherwise. Her testimony would have been that Chrysler minivans are no more prone than other vehicles to fatal accidents.

Chrysler further contends that the plaintiff improperly argued that Chrysler destroyed the memorandum written by Joseph Douglas. The evidence showed that the only copy of the memorandum was found in Douglas's files, and Chrysler admitted to routinely destroying documents. We conclude that counsel's argument was a fair inference drawn from the evidence. See Commonwealth v. Kelly, 417 Mass. 266, 270 (1994).

Chrysler argues that the plaintiff's counsel interjected his personal opinion regarding the veracity of the witnesses. We have set forth the challenged portions of the argument in the margin [Note 22]. We see no error in counsel's argument that Joseph Douglas was courageous and that the six other incident witnesses were brave and conscientious. Counsel can comment on the courage and character of a witness so long as he does not argue, from personal knowledge, the witness's credibility. See Commonwealth v. Lapointe, 402 Mass. 321, 331 (1988). These comments did not run afoul of that standard. We also conclude that it was permissible for counsel to argue that it was a lie that Douglas was a disgruntled employee, and that he was appalled

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by suggestions that a witness was not at the scene of the accident. Although counsel should have tempered his language, he could challenge the credibility of Chrysler's witnesses if his argument was supported by the evidence and the fair inferences therefrom. See Commonwealth v. Fitzgerald, 376 Mass. 402, 422 (1978). Counsel explained the evidence showing that Douglas was not disgruntled. Counsel also argued the forcefulness of the testimony of the witness to the accident. Counsel's reaction to the plaintiff's testimony also does not rise to the level of prejudicial error. We can safely rely on the jury to distinguish hyperbole. See Commonwealth v. Masello, 428 Mass. 446, 452453 (1998). See also Commonwealth v. Bradshaw, 385 Mass. 244, 277 (1982) ("The jury could be expected to take both [parties'] arguments with a grain of salt").

It was improper for counsel to suggest that Douglas's testimony and the plaintiff's statement to police were truthful, rather than arguing the credibility of their testimony. However, "[w]e review remarks alleged to be improper in the context of the entire argument, as well as in light of the evidence at trial and any instructions from the judge." Commonwealth v. Pontes, 402 Mass. 311, 316 (1988). The plaintiff's counsel did not say that he had personal knowledge of the veracity of the witnesses. The judge instructed the jury that closing arguments are not evidence and that "[i]f, at any time in the course of these events you heard an attorney express a personal belief in the credibility or believability of a witness, or in the merits or lack of merits of a particular claim, you should disregard it unless you as a collective body agree with that assessment . . . ." These instructions, which were echoed at the beginning of trial and before closing arguments, were sufficiently forceful to cure the error. Chrysler requested no additional instructions at the close of the charge.

Finally, Chrysler takes issue with the plaintiff's counsel's references to his personal life experiences. [Note 23] These references were improper. See Commonwealth v. Marquetty, 416 Mass. 445, 451 (1993). However, as we discussed above, the judge

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instructed the jury that closing arguments are not evidence and that the attorneys' personal beliefs should be disregarded. The judge also instructed that sympathy should not play a role in the jury's deliberations. The judge has the discretion to decide whether any action must be taken in response to improper argument and what that action should be. Fialkow v. DeVoe Motors, Inc., 359 Mass. 569, 572 (1971). The judge was faced with two improper comments in the course of a lengthy trial and lengthy closing arguments. We conclude that the judge did not abuse her discretion in her handling of counsel's improper comments. See Harlow v. Chin, 405 Mass. 697, 706 (1989) [Note 24]. While we affirm the judgments, we do not condone this type of closing argument. We view with disfavor unnecessary and hyperbolic embellishments. Counsel should argue the facts and fair inferences from the facts. See Kelly, supra.

4. Wrongful death recovery. The jury found that the plaintiff was ten per cent negligent, and that his negligence was a proximate cause of the deaths of his wife and children. The plaintiff is the sole beneficiary of their estates. See G. L. c. 229, s. 1. Chrysler argues that the plaintiff, as a contributorily

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negligent sole beneficiary, is not entitled to recover under the Massachusetts wrongful death act, G. L. c. 229, s.s. 1 et seq. We disagree.

We have held that comparative negligence is not a full or partial defense to a wrongful death action based on breach of warranty. See Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 353 (1983). The plaintiff proceeded on two theories: negligence and breach of warranty. See G. L. c. 229, s. 2. In addition to finding that Chrysler was negligent, the jury also found that Chrysler violated its warranty, and that the plaintiff did not unreasonably use his minivan knowing of the defect. The verdict slip does not specify on which finding the jurors based the wrongful death awards. The wrongful death awards could have been based on the breach of warranty. Thus, there is no basis for eliminating the awards.

Even if the jury based its verdict on the negligence claim, the plaintiff's recovery would not be barred [Note 25]. Chrysler's argument relies largely on Arnold v. Jacobs, 319 Mass. 130 (1946). In Arnold, the defendant caused his mother's death through the negligent operation of a motor vehicle. Id. at 132. We held that he could not share in the sum paid by his insurer to the administrator of the decedent's estate. Id. at 133. We conclude that Arnold is not applicable. Arnold was decided prior to the enactment of the comparative negligence statute. See G. L. c. 231, s. 85, as appearing in St. 1973, c. 1123, s. 1.

Chrysler, focusing on the part of the comparative negligence statute referring to "the amount of negligence attributable to the person for whose . . . death recovery is made," argues that the statute allows for the comparative negligence of a decedent, but not a beneficiary, and thus Arnold controls. We disagree. The statute directs the judge to compare the negligence of "each plaintiff" to the negligence of all the defendants. The statute further states that the "total of the plaintiffs negligence" and the defendants' negligence must be one hundred per cent. We therefore conclude that the Legislature intended for the statute to apply both to negligent decedents and negligent beneficiaries.

5. Judgment nunc pro tunc. Chrysler next argues that the judge should not have entered judgment nunc: pro tunc. The jury returned a verdict in favor of the plaintiff on February 16, 1996.

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On February 28, 1996, Post Motors filed a motion for a hearing on fees and costs and for entry of judgment on its cross claim

against Chrysler. On March 1, 1996, Chrysler filed motions for a new trial and for judgment notwithstanding the verdict. The judge issued a decision on Chrysler's posttrial motions on September 18, 1996. Final judgment did not enter, however, as Post Motors's cross claim against Chrysler was pending.

On March 20, 1997, the plaintiff moved for entry of separate and final judgment with regard to his claims against Chrysler, pursuant to Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974) [Note 26]. On June 11, 1997, Post Motors's motion for entry of judgment on its cross claim was allowed. That order was amended, due to an error, on June 26, 1997. In the June 26 order, the judge also allowed the plaintiffs motion for entry of separate and final judgment against Chrysler and ordered that final judgment be entered nunc pro tunc, as of September 18, 1996, the date the court decided Chrysler's posttrial motions. In effect, the order allowed post judgment interest to be calculated from September 18, 1996, rather than from March 20, 1997.

Chrysler argues that the trial judge should not have entered judgment retroactive to September, 1996. According to Chrysler, the plaintiff could have, but did not, move for entry of final judgment pursuant to rule 54 (b) earlier. As this failure "to timely move" for a entry was not caused by court proceedings, the defendant argues that judgment should not have entered until the date the rule 54 (b) motion was allowed.

To protect parties from prejudice caused by delay in judicial deliberations or proceedings, G. L. c. 235, s. 4, allows a judgment to be entered nunc pro tunc [Note 27]. Almedia Bus Lines, Inc. v. Department of Pub. Utils., 348 Mass. 331, 338 (1965). After Chrysler's posttrial motions were decided, the plaintiffs claims

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against the defendant ceased at the trial level [Note 28]. Had the judge not entered judgment nunc pro tunc, the plaintiff would have been prejudiced by losing the benefit of the judgment against Chrysler while the court resolved the remaining dispute between Post Motors and Chrysler. Chrysler has cited no authority for the proposition, implicit in its argument, that the plaintiff was required to seek a rule 54 (b) judgment immediately after the posttrial motion in order to obtain the full benefit of the judgment [Note 29]. Thus, we conclude that Chrysler has failed to establish that the nunc: pro tune order was an abuse of discretion.

6. Indemnity. Chrysler also appeals from the judgment for Post Motors. Post Motors cross-claimed for indemnity. The judge determined that Post Motors was entitled to common-law indemnification. Chrysler argues that if the judgment for the plaintiff is vacated, so too should be the judgment for Post Motors. Because we affirm the verdicts for the plaintiff, we need not address the issue. However, Post Motors raises two other issues related to the indemnification.

Post Motors argues that the indemnity judgment entitles it not only to attorney's fees and costs incurred during the trial, but also to attorney's fees and costs incurred on appeal. Post Motors properly requested appellate attorney's fees in its brief, see Yorke Mgt. v. Castro, 406 Mass. 17, 20 (1989), and we conclude it is entitled to them. "Indemnity . . . allows someone who is without fault, compelled by operation of law to defend himself against the wrongful act of another, to recover from the wrongdoer the entire amount of his loss, including reasonable attorney's fees." Elias v. Unisys Corp., 410 Mass. 479, 482 (1991).

The judge concluded that Post Motors was entitled to indemnity from Chrysler on the claim for breach of warranty because Post Motors's liability "arose only from its derivative

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or vicarious relationship with Chrysler [Note 30]." The judge stated that "Chrysler must indemnify Post Motors for all reasonable and necessary expenses incurred in Post Motors' defense of this action. " The judge's order is sufficiently broad to enable Post Motors to recover to the extent allowed by common law indemnity. Post Motors is therefore entitled to compensation for the entire amount of its loss, including reasonable attorney's fees. This guarantee "would ring hollow if it did not necessarily include a fee for the appeal." Yorke, supra at 19 (holding that G. L. c. 93A's provision for "a reasonable attorney's fee" encompassed fees for the appeal).

The other issue raised by Post Motors pertains to the calculation of prejudgment interest. The judge awarded prejudgment interest as of the date of the filing of the plaintiff's complaint. Post Motors contends that interest should be calculated on the basis of the dates on which the legal bills were paid, in accordance with Sterilite Corp. v. Continental Cas. Co., 397 Mass. 837 (1986) [Note 31]. We agree, for the reasons set forth in that opinion. See id. at 841-842.

7. Conclusion. The judgments against Chrysler in favor of the plaintiff are affirmed. The judgment against Chrysler in favor of Post Motors is remanded for entry of judgment that calculates interest consistent with Sterilite, supra. The issue of Post Motors's request for attorney's fees and costs on appeal is remanded to the Supreme Judicial Court for Suffolk County.

So ordered.