Oquendo v. Insurance Company of Puerto Rico

• Decision Date: 25 November 1974
• Docket Number: Civ. No. 818-71.
• Citation: 388 F. Supp. 1030
• Parties: Isabel Martinez OQUENDO, Plaintiff, v. INSURANCE COMPANY OF PUERTO RICO et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

388 F. Supp. 1030

Isabel Martinez OQUENDO, Plaintiff, v. INSURANCE COMPANY OF PUERTO RICO et al., Defendants.

Civ. No. 818-71.

United States District Court, D. Puerto Rico.

November 25, 1974.

Ernesto Maldonado Perez, Old San Juan, P. R., for plaintiff.

Alfredo Rafucci, Dept. of Justice, Commonwealth of P. R., for defendant Muncipality of Vega Alta.

Luis M. Pagan, Santurce, P. R., for defendant Ins. Co.

OPINION AND ORDER

TOLEDO, Chief Judge.

On April 4, 1974, this Court filed its Opinion and Order dismissing the Municipality of Vega Alta as a codefendant in plaintiff's complaint. On April 17, 1974, plaintiff filed a motion for reconsideration of our Order, based partly on previously alleged grounds that the 90-day notice requirement established in Title 21, Laws of Puerto Rico Annotated, Section 1603, to allow suit against a municipality, should be computed from the time plaintiff learned the extent of her damages to the day that notice of the intended suit was mailed to the Mayor of the Municipality of Vega Alta, not the day in which he received said notice. Plaintiff also raised the issue of the constitutionality of the 90-day notice requirement, for the first time, in her motion for reconsideration. Consequently, together with her motion she has filed a request for a three judge court to decide the alleged issue of constitutionality.

This Court is of the opinion that the motion for reconsideration should be denied.

A careful examination of Title 21, Laws of Puerto Rico Annotated, Section 1603(c), indicates that the municipality to be sued must be served with notice within 90 days following the date on which claimant learns of his damages. As the actual wording of the statute clearly indicates:

". . . said written notice shall be presented to the municipal chief executive within ninety days following the date on which the claimant learned of the damages he is claiming for." (emphasis supplied).

The only exception granted in Section 1603(c) refers to claimants who are physically or mentally incapacitated and provides that:

"If the claimant is mentally or physically incapacitated to give said notice within the term prescribed, he shall not be subject to the limitation above provided but shall be bound to give said notice within thirty days following the date on which such incapacity ceases."

This exception does not benefit plaintiff, as there has been no showing she was mentally or physically incapacitated at any time after the accident.

Referring now to Section 1603(b), we find that it allows a claimant to choose the means through which he will give the required notice. He may deliver it "by sending it by registered mail or through personal service on him or in any other proper manner recognized by law." However, since there is no provision as to the manner in which the term of 90 days is to be computed should service by mail be chosen, we must conclude that the statute does not contemplate any lengthening of the 90-day period allowed to deliver written notice to the chief executive of the municipality.

As stated in Mangual v. Superior Court, (1963), 88 P.R.R. 475, at page 480:

"It may be asserted that the interpretation on the mandatory character of the notice depends, in the last analysis, on the wording of the statute."

The Supreme Court of Puerto Rico in that case examined the legislative history of the 90-day notice requirement and concluded that said requirement had been considered substantive in character. Id. at page 481. Finally, the Court flatly ruled that:

". . . in Puerto Rico compliance with the notice requirement is a condition precedent of strict compliance in order to be able to sue the municipality." Id. at page 483.

Therefore, a claimant may choose whatever form he wishes to make his notification, but nevertheless, he is bound by the fact that the municipality must know of his intention to sue within 90 days of the date in which claimant learned of the damages he is claiming for. This Court is of the opinion, therefore, that the date in which the written notice was allegedly mailed cannot be construed as the date in which notice was presented to the municipality and can not constitute compliance with the strict mandate of the law as interpreted in Mangual, supra.

In view of the above, this Court will not discuss at length plaintiff's strenuous argument with respect to this point. Nevertheless, a few observations are in order. First, although basing her argument on the alleged date of mailing, plaintiff has not established that notice was mailed on August 13, 1971. Through the signed receipt, it has been shown that said notice was received on August 23, 1971. However, the stamped registered mail slip which sender retains at the time of mailing has not been produced to establish the mailing date and the Court could hardly conclude that the mailing date was indeed August 13, 1971 by simply taking judicial notice than an interval of ten days between mailing and receipt of correspondence "is not altogether uncommon in Puerto Rico", as plaintiff requests.

In the second place, plaintiff is correct in asserting that Rule 68.4 of the Puerto Rico Rules of Civil Procedure does not apply in this case as said rule applies only when the interested party has been notified by mail and is required to reply within a specified time.¹ The purpose of the rule is to insure that the responding party will have available the full specified term within which he must reply and this is accomplished by adding three days to the original term. The only relevance of this rule in the instant case lies in the fact that it is based on the assumption that delivery by mail takes no more than three days in Puerto Rico. Therefore, had the Court agreed that notice had been given when it was deposited in the mail, and in the absence of proof of the actual date of mailing, the assumption on which Rule 68.4 is based would have been controlling and the Court would have fixed the date of mailing as August 20, 1971.

Finally, we must point out that the cases cited by plaintiff to establish that notice is completed when it is mailed, rather than upon receipt, are not applicable in the instant case for the same reason that plaintiff previously argued that Rule 68.4 was not applicable, namely, that the rule only covered a particular situation, distinct from that in the instant case. The cases cited by plaintiff are all cases where Rule 67.2 of the Puerto Rico Rules of Civil Procedure, or its substantially similar predecessors, was being interpreted.² Said rule applies to service of papers subsequent to the original complaint on parties which have appeared and does not for example apply to pleadings asserting new or additional claims for relief against defendants in default, which new claims must be served upon the appropriate party as provided for service of summons in Rule 4 of the Puerto Rico Rules of Civil Procedure.³

As stated in Mangual, supra, the notice requirements of Title 21, Laws of Puerto Rico Annotated, Section 1603, are substantive in character and the wording of the statute is controlling. However, although none of the Puerto Rico Rules of Civil Procedure is strictly applicable, the Court feels that the nature of the notification required by the statute is closer to that of the serving of process under Rule 4 than to notification of pleadings, motions, etc. under Rule 67.2. Hence, were we to look beyond the wording of Title 21, Laws of Puerto Rico Annotated, Section 1603, and rely on the Puerto Rico Rules of Civil Procedure to guide our interpretation of the notice required, we would feel constrained to focus on Rule 4 rather than on Rule 67.2 as plaintiff would have us do. Specifically, we would look to Rule 4.8 where proof of service in those cases where substitute service is made under Rule 4.7 requires presentation of the defendant's return receipt.⁴

The second alleged ground for plaintiff's motion for reconsideration is that Title 21, Laws of Puerto Rico Annotated, Section 1603(c), is unconstitutional and violates the due process and equal protection clauses of the Constitution of the United States. Plaintiff argues that the 90-day requirement notice established by the statute as a condition to suing a municipality is arbitrary in that it establishes two types of tort feasors, private and governmental, and thus two types of tort victims, only one of which is affected by the notification requirements. Plaintiff cites three cases to support her position: Grubaugh v. City of St. Johns, 384 Mich. 165, 180 N.W.2d 778 (1970); Reich v. State Highway Department, 386 Mich. 617, 194 N.W.2d 700 (1972), from the Supreme Court of Michigan; and Turner v. Staggs, Nev., 510 P.2d 879 (1973), certiorari denied Turner v. Clark County, 414 U.S. 1079, 94 S.Ct. 598, 38 L.Ed.2d 486, by the U. S. Supreme Court, from the Supreme Court of Nevada. She cites no Federal cases on this point, nor any from the Supreme Court of Puerto Rico.

The Court has read the cited cases and after having carefully considered the arguments raised, is of the opinion that the constitutional attack is insubstantial and without merit. The argument that due process and equal protection under the Constitution of the United States preclude the enactment of state statutes which establish classifications and hence do not give the same treatment to all citizens was clearly rejected in McGowan v. Maryland, 366 U. S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1960). There, the Supreme Court stated: "Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. State legislatures are presumed to have acted within their constitutional power despite the fact...