Gonzalez v. Fireman's Fund Insurance Company, Civ. No. 380-70.

• Decision Date: 07 May 1974
• Docket Number: Civ. No. 380-70.
• Parties: Benjamin Torrens GONZALEZ and Rosa Pacheco, Plaintiffs, v. FIREMAN'S FUND INSURANCE COMPANY, Defendant.
• Court: U.S. District Court — District of Puerto Rico

385 F. Supp. 140

Benjamin Torrens GONZALEZ and Rosa Pacheco, Plaintiffs, v. FIREMAN'S FUND INSURANCE COMPANY, Defendant.

Civ. No. 380-70.

United States District Court, D. Puerto Rico.

May 7, 1974.

COPYRIGHT MATERIAL OMITTED

Harvey B. Nachman, San Juan, P.R., for plaintiffs.

Eli B. Arroyo, San Juan, P.R., for defendant.

OPINION AND ORDER

TOLEDO, Chief Judge.

This cause is before the Court to dispose of several controversies that have been submitted by the parties in anticipation of trial, as they appear in the Pretrial Stipulation and Order entered on March 5, 1974. The parties submitted briefs on the issues on March 7th and 8th; and a hearing on the issues was held on March 8th. The issues now stand submitted upon the oral argument and the briefs.¹

The following are the issues under our consideration:

1. — Are the causes of action asserted in the complaint barred by the running of the statute of limitations?

2. — Is the complaint dismissable for failure to file an amended complaint?

3. — Is dismissal of a companion case for want of prosecution in the Courts of the Commonwealth of Puerto Rico res judicata or does it bar these claims under the principle of collateral estoppel?

4. — Is coplaintiff Rosa Pacheco entitled to damages for loss of consortium, companionship and affection?

I. The first issue of the timeliness of the complaint is twofold inasmuch as the Court will have to consider whether both causes of action (that of Mr. Torrens Gonzalez and that of Mrs. Rosa Pacheco), are barred by the statute of limitations prescribed in Title 31, Laws of Puerto Rico Annotated, Section 5298.²

It is a settled principle of law that the statute of limitations in the Commonwealth of Puerto Rico may be interrupted by extrajudicial negotiations. See Trigo v. The Travelers Insurance Co., 91 D.P.R. 868 (1965); Bedard v. Consolidated Mutual Ins. Co. (D.C.P.R.1970), 313 F.Supp. 1020, and cases cited therein. See also Title 31, Laws of Puerto Rico Annotated, Section 5303.³

Counsel for plaintiffs makes a recitation of facts that he asserts show there is no justification for this defense or issue of law. It is not necessary to reassert here counsel's recitation. In our opinion, it suffices to say that the accident occurred on August 14, 1968 and the complaint was filed on June 1, 1970 and that the non-contested extrajudicial events that are revealed by the facts of this cause are sufficient for the tolling of a statute of limitations. We do not agree with defendant's statement to the effect that the last extrajudicial effort for a settlement was performed on May 15, 1969, when a check for $2,500 in settlement of the cause was sent by defendant to attorney Treviño, co-counsel for plaintiff. Efforts are revealed posterior to said date to duly ascertain as to the magnitude of coplaintiff Torrens Gonzalez' damages; in which efforts, defendant appears to have participated. Such efforts run up to May 7, 1970 and in our opinion, they reflect they were made in contemplation of a possible settlement of the cause.

Notwithstanding, the aforesaid, it is not clear at all to the Court whether in view of such effort coplaintiff Rosa Pacheco's cause of action is not time barred. Defendant, in the alternative, nakedly asserts that the claims made by her are time barred since no extrajudicial claim for her possible damages was ever made. Counsel for plaintiffs does not reach the merits of such assertion, although it implies to the contrary.

The Court is at present in no position to dispose of this aspect of the first issue raised for our consideration. The parties have failed to adequately support their respective contentions on the issue. It may very well be that coplaintiff Rosa Pacheco's cause of action is time barred for her cause, under the law of the Commonwealth of Puerto Rico, could be said not to be derivative from her husband's cause, but an independent action. It may also very well be that all extrajudicial efforts, or some, were also performed for her benefit. This, we do not know now.

In view of the last said, the Court deems proper to have the parties brief the Court on this aspect of the case, with an adequate elaboration of the factual background and the applicable law. In this respect, the parties should refer to this Court's opinion in Gilbert v. Eli Lilly & Co. (D.C.P.R.1971), 337 F. Supp. 501 and cases cited therein, for what ever application they may have to the issue at bar as well as to any applicable jurisprudence of the Supreme Court of the Commonwealth of Puerto Rico, or any persuasive jurisprudence of any other Court.

Since these causes are already set for trial to start today, there is insufficient time for this Court to dispose of this aspect of the first general issue. The Court feels that under the present circumstances the cause of justice is best served by having the parties submit the issues to the court, by simultaneous memoranda, no later than next Monday, April 1st, at 12:00 noon, unless another satisfactory agreement could be reached by the parties, and is accordingly approved by the Court. In view of the aforesaid, the Court will allow coplaintiff Rosa Pacheco's cause to come to trial, but subject to the to-be-made disposition on the issue as to the timeliness of her action. The Court will do all possible efforts to dispose in a definite manner of the said issue before the case reach the stage of closing arguments by the parties.

II. Being the fourth raised issue related to Mrs. Rosa Pacheco's cause, we will now refer to it. We have said that said issue is whether coplaintiff Rosa Pacheco is entitled to damages for loss of consortium, companionship and affection. Defendant alleges the same cannot be allowed and, therefore, must be stricken from the complaint, for to permit such recovery will amount to a double recovery by the plaintiffs. Defendant predicates such assertion upon its contention that under the law of the Commonwealth of Puerto Rico, Title 31, Laws of Puerto Rico Annotated, Section 282, the husband is legally bound to support his wife, and, therefore, the wife would be already benefiting by the husband's recovery for damages for his injuries. Defendant cites Deynes v. Texaco, 92 P. R.R. 215 (1965), which case stands for the proposition, in the applicable part, that a plaintiff's wife in an action for damages suffered by her husband, who due to the accident had to care for her husband's needs (e. g. dressing, bathing, etc.), which may have caused her troubles and inconveniences, should not receive any compensation for fulfilling the elementary duties of a wife.⁴

Plaintiff asserts the problem with this issue is one of harmonizing concepts familiar to the common law with those of civil law. That loss of consortium is recognized in common law jurisdictions is clear. Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S. Ct. 806, 39 L.Ed.2d 9 (1974). Plaintiff further asserts that the civil law, when it talks of the anxiety and distress of a wife witnessing her husband's sufferings, it means what the common law means when it speaks of loss of consortium. Accordingly, under such a caption, the wife would be getting compensation for her anxiety and distress caused by witnessing her husband's sufferings; item of damages clearly recognized under the law of the Commonwealth of Puerto Rico. See Ganapolsky v. Park Gardens Development Corp. (1 Cir. 1971), 439 F.2d 844. Thus, the inapplicability of the Deynes holding to the situation at bar.

In view of the aforesaid, coplaintiff Rosa Pacheco's claim for damages for loss of consortium cannot be stricken from the complaint. Notwithstanding, since we have already stated that at present the Court is in no position to dispose of defendant's claim as to the prescription of coplaintiff Rosa Pacheco's action, we would only permit such evidence to come to the attention of the jury subject to the to-be-made disposition on the issue of whether or not her action is time barred.

III. We find defendant's contention that the complaint is dismissible for failure of plaintiffs to file an amended complaint is meritless. Our disposition of July 15, 1970, was adequate and the dropping of the misjoined parties was a sufficient remedy under the Federal Rules of Civil Procedure. See Rule 21. Under circumstances like the one in this cause, no amended complaint has to be filed. Defendant's emphasis that the situation is contemplated under Rule 41 of the Federal Rules of Civil Procedure is totally misplaced. Furthermore, its cited opinion of John Birch Society v. National Broadcasting Company (2 Cir. 1967), 377 F.2d 194, does not deal with a situation like the one at bar; nor with a procedural disposition as the one at present under consideration. Defendant's stress upon that decision is so misplaced that it deserves no other statements than to say that we have never dismissed plaintiff's complaint with leave to file an amended complaint.

One additional comment may be proper. It should be clear to defendant that it is contrary to the spirit of the Federal Rules of Civil Procedure that decisions on the merits of a cause be avoided on the basis of procedural technicalities. The purpose of pleading is only to facilitate a proper decision on the merits. See Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Our disposition has only helped the "just, speedy and inexpensive determination of every action" desired by the Federal Rules of Civil Procedure. See Rule 1.

IV. Defendant asserts that in view of the fact that plaintiffs in this cause initiated an action, said to be identical to the present one,⁵ before the Superior Court of the Commonwealth of Puerto Rico; that the Superior Court dismissed the action before it for lack of prosecution on December 13, 1973; that the Superior Court refused, on January 14, 1974, to set aside the dismissal; and that under the law of the Commonwealth of Puerto Rico and under Federal law, a judgment of dismissal...