Arroyo-Torres v. González-Méndez, Civil No. 14–1448 (SEC)

• Decision Date: 26 February 2016
• Docket Number: Civil No. 14–1448 (SEC)
• Parties: ARROYO–TORRES, et al., Plaintiffs, v. GONZÁLEZ–MÉNDEZ, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

212 F.Supp.3d 299

ARROYO–TORRES, et al., Plaintiffs,

v.GONZÁLEZ–MÉNDEZ, et al., Defendants.

Civil No. 14–1448 (SEC)

United States District Court, D. Puerto Rico.

Signed February 26, 2016

Eric M. Quetglas–Jordan, Quetglas Law Office, San Juan, PR, for Plaintiffs.

Eduardo J. Ortiz–Declet, Gonzalez Villamil Law Office, San Juan, PR, for Defendants.

OPINION & ORDER

SALVADOR E. CASELLAS, U.S. Senior District Judge

Pending before the Court is Defendant SIMED's Motion for Summary Judgment. Docket # 41. For the reasons that follow, this motion is DENIED .

I. Background

Paula Torres–Rosa (Torres) underwent a total replacement of her right knee in the Auxilio Mutuo hospital on June 12, 2012. Per her admissions records, Torres had a diagnosis of diabetes

and high blood pressure. She was later transferred to the Millennium Institute for Advanced Nursing Care ("Millennium") for recovery and physical therapy. During her stay at the facility, Millennium's nurses noted that Torres was sleepy, dizzy and disoriented. Her family members made similar observations during their visits. A couple of weeks after her surgery, Torres' condition took a turn for the worse. Although her husband rushed her to the emergency room, it was already too late. Torres passed away on June 23, 2012.

Several months later, Torres' children, Bethzaida and Josue Arroyo–Torres (collectively, "Plaintiffs"), retained an attorney and began investigating the circumstances of their mother's death. Although they also retained the services of a physician to render a report on this matter, the same was not ready within the one-year time limit provided by Puerto Rico law to file a tort suit. Thus on June 7, 2013, with the purpose of tolling the statute of limitations, Plaintiffs made an extrajudicial claim to Millennium and its treating physician. See Docket # 44–2 at ¶ 6. Importantly, Plaintiffs did not direct any extrajudicial claim to SIMED because they were allegedly unaware at that time that SIMED was Millennium's insurer. Id .

Neither Millennium nor the treating physician answered Plaintiffs' letter. Thus, on June 4, 2014, Plaintiffs filed this malpractice suit against Millennium and the physician. The suit did not name any insurance company under a fictitious name. Shortly thereafter, on August 6, 2014, Millennium sent Plaintiffs a letter stating that Millennium had filed for bankruptcy. See Docket # 44–4.¹ The letter further informed Plaintiffs that Millennium was insured by SIMED, and that SIMED had been duly notified regarding their claim.²

In response to that letter, Plaintiffs elected to drop their claims against Millennium and the treating physician. See Docket # 44–4. On the same date, Plaintiffs amended their complaint as a matter of right to reflect the dismissal, and added SIMED as a new defendant. The amended complaint specifically alleged that Plaintiffs were bringing "a direct action under Puerto Rico law against the Defendant SIMED." See Docket # 8 at ¶ 19.

After the close of discovery, the Court held a consolidated case management, pretrial and settlement conference. The minutes of that conference reflect that while the parties agreed to settle this case in principle for the full amount of the insurance policy, SIMED would be allowed to present a dispositive motion on grounds that Plaintiffs' claims were time-barred. See Docket # 40. For the reasons stated below, the Court finds that SIMED's time-bar defense is foreclosed. The motion for summary judgment is therefore denied.

II. Analysis

Malpractice claims under Puerto Rico law are subject to a one-year statute of limitations. See Article 1868 of the Puerto Rico Civil Code, P.R. Laws Ann. t. 31, § 5298. Under the "cognitive theory of accrual," this limitations period begins to run once the injured party knows two things: 1) the harm suffered; and 2) who caused the harm. Vera Morales v. Bravo Colón , 2004 TSPR 30 (P.R. Feb. 27, 2004), P.R. Offic. Trans.

Article 1873 of the Puerto Rico Civil Code allows the prescriptive period to be tolled in any of the following ways: 1) by sending an extrajudicial claim to the debtor; 2) by filing a judicial claim against the debtor; or 3) by an act of acknowledgement of debt by the debtor. P.R. Laws Ann. t. 31, § 5303. Further, under Article 1874, the tolling of this period against one defendant also tolls the period against any other defendant who is jointly and severally liable—that is, liable in solidum —with the first. See P.R. Laws Ann. t. 31, § 5304.

Under this framework, it is clear—and uncontested—that the prescriptive period on the tort action began to run on the date of Torres–Rosa's death; that is, on June 23, 2012. Thus, because Plaintiffs' sent their extrajudicial claim against Millennium and the treating physician before that date, they successfully tolled their claim against those entities. But therein lies the rub. As mentioned before, Plaintiffs' did not send any extrajudicial claim against SIMED, and the record does not reflect that SIMED was ever notified of the letter sent to Millennium. It is also uncontested that Plaintiffs' amended complaint naming SIMED was filed more than one year after Torres–Rosa's death. Under these circumstances, SIMED argues that Plaintiffs' direct action must be dismissed as time barred.

The issue boils down to whether Plaintiffs' extrajudicial claim tolled the statute of limitations on the direct action against the insurer, where Plaintiffs directed their letter exclusively against the insured, and did not raise any claim against the insurer. In their briefs, the parties center on whether SIMED should be treated as a joint tortfeasor for purposes of determining whether the extrajudicial claim brought against the latter would have tolled the statute of limitations against the former. To the extent that the parties' arguments depend on that characterization—which is evident in their many references to Fraguada Bonilla v. Hospital Auxilio Mutuo , 186 D.P.R. 365 (2012) (distinguishing between the prescriptive effects of perfect and imperfect solidarity in the context of joint tortfeasors)—they are inapposite.

As Professor José Julián Álvarez González rightly notes, an insurer cannot be considered a joint tortfeasor for the simple reason that the insurance company does not participate in the tortious conduct. As a result, the legal relationship between the insurer and the insurance company is not a matter of "solidarity" as understood by the case law interpreting Puerto Rico's general tort statute. Rather, this relationship is a contractual one "whereby the insurer has agreed to defend the insured and pay a claim or judgment to a certain amount." J. J. Álvarez González, Responsabilidad Civil Extracontractual , 78 Rev. Jur. U.P.R. 457, 505 (2009) (translation supplied); see also J. J. Álvarez González, Responsabilidad Extracontractual , 62 Rev. Jur. U.P.R. 903, 934 (1993). The Court adds that in virtually every case, this contractual relationship predates the tort.³

For this reason, the question of whether the tolling of a claim against the tortfeasor also tolls a claim against its insurer must be analyzed in the context of the contractual relationship described above. To do so, it is essential to understand the basis on which an action against the insurer may be brought under Puerto Rico law. In particular, the Puerto Rico Insurance Code provides that an

insurer issuing a policy insuring any person against loss or damage through legal liability for bodily injury, death, or damage to property of a third person, shall become liable whenever a loss covered by the policy occurs, and payment of such loss by the insurer to the extent of its liability therefor under the policy shall not depend upon payment by the insured of or upon any final judgment against him arising out of such occurrence, nor shall it depend upon said judgment.

See Puerto Rico Insurance Code, § 20.010, P.R. Laws Ann. t. 26, § 2001. The Insurance Code further provides that an "individual sustaining damages and losses shall have, at his option, a direct action against the insurer under the terms and limitations of the policy, which action he may exercise against the insurer only or against the insurer and the insured jointly." Id. at § 20.030(1), P.R. Laws Ann. t. 26, § 2003(1) (emphasis added). This direct action is ostensibly the path Plaintiffs chose here. Finally, the Insurance Code provides another option: "[i]f the injured party brings suit against the insured alone, it shall not be deemed to deprive him of the right, by subrogation to the rights of the insured under the policy, to maintain an action against and recover from the insurer after securing final judgment against the insured." Id. at § 20.030(3).

It is clear, then, that an injured party has a menu of legal options against the tortfeasor and the insurer, all geared towards facilitating the injured party's access to relief. Indeed, that was the intent of the Puerto Rico Legislature when it approved those particular amendments in 1957. See e.g. Trigo v. The Travelers Ins. Co. , 91 D.P.R. 868 (1965).

In spite of this, a line of federal district court cases hold that a direct action against the insurer is not tolled by bringing a claim against the insured. These courts essentially rest their holdings on two Puerto Rico decisions. First, in Ruiz v. New York Dept. Stores , 146 D.P.R. 353, 369–370 (1998), the Puerto Rico Supreme Court clarified that the direct action against the insurer was separate, distinct, and independent from the civil action against the insured. See also Trigo v. Travelers Ins. Co. , 91 D.P.R. 868 (1965). Later, in Ruiz–Millan v. Maryland Cas. Co. , the Puerto Rico Supreme Court held that since both actions "have the same origin and since both depend on the same evidence," there is "no justification to establish different periods of prescription" for each. Ruiz–Millan v. Maryland Cas. Co. , 101 D.P.R. 249, 1 P.R. Offic. Trans. 342 (P.R. Mar. 13, 1973). From these two statements, the ...