Estate of Gutierrez by Haney v. Albuquerque Police Dept.
| Decision Date | 04 March 1986 |
| Docket Number | No. 8750,8750 |
| Citation | 717 P.2d 87,104 N.M. 111,1986 NMCA 23 |
| Parties | The ESTATE OF Blas GUTIERREZ, by George B. HANEY, as Personal Representative, Plaintiff-Appellee, v. ALBUQUERQUE POLICE DEPARTMENT and Bernalillo County Detention Center, Defendants-Appellants. |
| Court | Court of Appeals of New Mexico |
This matter is before the court, 715 P.2d 71, on an interlocutory appeal from the denial of defendants' motion for summary judgment. Defendants raise one issue: whether plaintiff's claim should have been dismissed for violation of the two year-statute of limitation under the New Mexico Tort Claims Act, NMSA 1978, Section 41-4-15 (Repl.Pamp.1982). Plaintiff seeks to raise an additional issue: whether the court erred in granting summary judgment to ten other individual defendants. We reverse as to the first issue; because the additional issue was not certified, we do not address it.
Blas Gutierrez was arrested and held at the Bernalillo County Detention Facility. On May 11, 1982, while in custody, he died of a heart attack. Plaintiff, the personal representative of the estate, filed a 42 U.S.C. Section 1983 civil rights complaint in federal district court against various individuals and the City of Albuquerque, alleging injury and wrongful death. The complaint also contained a pendent state claim pursuant to the Tort Claims Act, Sections 41-4-1 to -27 (Repl.Pamp.1982). The pendent claim named the City of Albuquerque as a defendant. The complaint was filed within all applicable statutes of limitation.
In December of 1983, eleven months after the first complaint, plaintiff filed an amended complaint dropping the City of Albuquerque as a defendant in the pendent claim, but adding the Albuquerque Police Department (APD) and the Bernalillo County Detention Center (BCDC) as new defendants. Thus, as of December 1983, APD and BCDC were the only named defendants in plaintiff's Tort Claims Act cause of action. See Biebelle v. Norero, 85 N.M. 182, 510 P.2d 506 (1973); see also NMSA 1978, Civ.P.R. 15(e) (Repl.Pamp.1980).
On May 22, 1984, the federal court dismissed a number of plaintiff's claims with prejudice and also dismissed plaintiff's pendent state claim without prejudice. Plaintiff filed a motion for reconsideration which was denied on September 11, 1984. No appeal was taken from the court's order of dismissal. Rather, plaintiff filed suit in state district court against all of the individual defendants named in plaintiff's federal claim and also added a new defendant, the County of Bernalillo. The action in state court was filed two years and four months after the death of Blas Gutierrez.
In their answer to the complaint, all defendants asserted noncompliance with the statute of limitations, and subsequently filed motions for summary judgment claiming plaintiff's cause of action was barred under the statute of limitations contained in the Tort Claims Act. The trial court granted the motion as to the individual defendants, but denied it as to APD and BCDC. It is from the denial of summary judgment that those two defendants appeal.
Sovereign immunity was abolished in New Mexico in 1975. Hicks v. State, 88 N.M. 588, 544 P.2d 1153 (1975). The court stated:
[W]e take this opportunity to rid the State of this legal anachronism. Common law sovereign immunity may no longer be interposed as a defense by the State, or any of its political subdivisions, in tort actions. Sovereign immunity was born out of the judicial branch of government, and it is the same branch which may dispose of the doctrine. It can no longer be justified by existing circumstances and has long been devoid of any valid justification.
Hicks, 88 N.M. at 590, 544 P.2d at 1155.
The following year, the New Mexico Legislature responded by passing the Tort Claims Act which reinstated governmental liability in certain classes of activities specifically set out as exemptions within the Act. Begay v. State of New Mexico, Ct.App. No. 7949 (filed December 10, 1985), cert. granted sub nom. Begay v. Smialek 2/12/86. In fashioning the parameters of governmental liability, the legislature sought to balance two concepts: (1) it recognized the inherently unfair and inequitable results which occur in the strict application of sovereign immunity; and (2) it recognized a need to provide for some immunity because "the government should not have the duty to do everything that might be done." Sec. 41-4-2(A); see also Methola v. County of Eddy, 95 N.M. 329, 622 P.2d 234 (1980). Limitations were imposed on an individual's right to sue for the negligent or intentional wrongful acts of governmental actors. Thus, the Act is in derogation of one's common law right to sue and is to be strictly construed. Methola; see generally State, ex rel. Miera v. Chavez, 70 N.M. 289, 373 P.2d 533 (1962).
The New Mexico Supreme Court has held that "[t]he right to sue and any recovery under the New Mexico Tort Claims Act is limited to the rights, procedures, limitations and conditions prescribed in the Act." Methola, 95 N.M. at 334, 622 P.2d at 239. Unless the specific procedures outlined in the Act have been followed, plaintiff's claim must fail.
Section 41-4-15 provides in relevant part:
A. Actions against a governmental entity or a public employee for torts shall be forever barred, unless such action is commenced within two years after the date of occurrence resulting in loss, injury or death * * *
The plain language of this statute indicates when the period of limitations begins to run. Aragon & McCoy v. Albuquerque National Bank, 99 N.M. 420, 659 P.2d 306 (1983). There is no dispute between the parties as to the date of the occurrence. The trial court, in denying defendants' motion for summary judgment, found that the two-year limitation period of Section 41-4-15 was tolled as to defendants APD and BCDC.
Defendants contend that a strict construction of the Act's limitation period is mandated and that such a construction forbids the trial court's application of the savings provision of NMSA 1978, Section 37-1-14. Defendants further assert that the principles of equitable tolling urged upon this court by plaintiff do not afford this court an opportunity to mitigate the harsh results of the federal court's dismissal.
Plaintiff contends that the state lawsuit is not barred by the Tort Claims Act and relies on alternative theories: first, plaintiff argues that Section 37-1-14 grants him a six-month grace period after the federal court's dismissal within which to file suit; secondly, plaintiff argues that if Section 37-1-14 is inapplicable, then the appellate court should rule that the Tort Claims Act statute of limitations was subject to the concept of equitable tolling and that the claim should, therefore, not be dismissed. Finally, plaintiff argues that the limitation period was tolled during the pendency of the prior state tort claim action in federal court.
NMSA 1978, Section 37-1-14, provides:
If, after the commencement of an action, the plaintiff fail therein for any cause, except negligence in its prosecution, and a new suit be commenced within six months thereafter, the second suit shall, for the purposes herein contemplated, be deemed a continuation of the first.
Plaintiff characterizes the federal court's sua sponte refusal to assert pendent jurisdiction over plaintiff's state claims as a failure contemplated by Section 37-1-14. Plaintiff maintains that his refiling in state court within six months should, accordingly, save the cause of action from the bar of the two-year limitation period contained in the Tort Claims Act. Plaintiff's argument does not withstand judicial scrutiny and must be rejected. We note a second statute contained in the Chapter 37 "Limitation of Actions" that confirms our conclusion. Section 37-1-17 provides:
None of the preceding provisions of this chapter shall apply to any action or suit, which by any particular statute of this state, is limited to be commenced within a different time, nor shall this chapter be construed to repeal any existing statute of the state which provides a limitation of any action; but in such cases the limitation shall be as provided by such statutes.
This statute indicates that the preceding statute upon which plaintiff relies, Section 37-1-14, has no applicability when a specific statute creates a different time within which to file suit, or provides a specific limitation period. Such is the case here. Section 41-4-15 does indeed provide a specific period within which to commence an action against governmental entities. Thus, the general provisions discussed in Section 37-1-14 are inapplicable to the Tort Claims Act. There exists a second reason for rejecting plaintiff's statutory argument. Specifically, the same argument has twice been turned aside in analogous situations.
In Perry v. Staver, 81 N.M. 766, 473 P.2d 380 (Ct.App.1970), plaintiff sought to revive, under the predecessor statute to Section 37-1-14, a previously dismissed wrongful death action. The court, citing to the predecessor to Section 37-1-17, refused to accept the argument that the general savings provision applied to a wrongful death action. The court noted:
The New Mexico Wrongful Death Act creates a cause of action which did not exist at common law. The limitation provisions thereof are not only a limitation on the remedy, but also on the right to institute such an action.
Perry, 81 N.M. at 768-69, 473 P.2d at 382-83 (citations omitted).
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