Carreira et al v. Duvall et al

Filing 56

ORDER: re All Pending Motins 25 , 40 , and 46 . The Clerk of Court is directed to amend the case caption to delete the Third Party Complaint ( see order for full details). Signed by Judge Sharon L. Gleason on 04/16/2013. (AEM, CHAMBERS STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
NADIA CARREIRA,
CARREIRA,

and

ALFRED

Plaintiffs,
v.
WENDY DUVALL and WILLIAM G.
AZAR,
Defendants.
_________________________________
WENDY DUVALL,
Third-Party Plaintiff,
v.
TERRI CRANFIELD,
VALCARCE,

M.D.

and

JIM

Third-Party Defendants.

Case No. 3:12-cv-00138-SLG

ORDER RE ALL PENDING MOTIONS
I.

MOTIONS PRESENTED
Before the Court are three motions: a Motion to Determine Rule of Law filed by

plaintiffs Nadia and Alfred Carreira at Docket 25, a Motion to Dismiss filed by third-party
defendant Terri Cranfield at Docket 40, and a Motion to Dismiss filed by third-party
defendant Jim Valcarce at Docket 46. Oral argument was held on the Carreiras’ motion
on January 11, 2013, but was neither requested nor necessary to the Court’s
determination of the two motions to dismiss. For the reasons discussed below, the
Court grants all three motions.

II.

FACTUAL AND PROCEDURAL BACKGROUND
The relevant facts for purposes of these pending motions, as alleged in the

Carreiras’ Complaint and Ms. Duvall’s Third-Party Complaint, are as follows:
Ms. Carreira underwent surgery on January 11, 2009. The surgery was
performed by Terri Cranfield at the Alaska Native Medical Center. The Carreiras allege
that Dr. Cranfield performed the surgery “in a reckless and negligent manner” that “fell
below the applicable standard of care in many respects.” 1 They also maintain that “[a]s
a direct and proximate result of Dr. Cranfield’s negligence, Nadia had to undergo three
additional surgeries and procedures in an attempt to correct the injuries caused by Dr.
Cranfield.” 2
On January 20, 2009, the Carreiras contacted the Law Office of Azar and
Schlehofer, P.C. for legal advice regarding the surgery. 3

Ms. Carreira executed a

contingency fee agreement with the firm on March 27, 2009. 4 The Carreiras assert that
the case was assigned to Ms. Duvall who worked under the supervision of Mr. Azar. 5
Two years later, in January 2011, the Carreiras allege that Mr. Azar met with
attorney Jim Valcarce to discuss transferring Ms. Carreira’s case. 6 On April 6, 2011,
Mr. Valcarce began representing Ms. Carreira, but no new fee agreement was created

1

Docket 1 at 2 ¶¶ 7-8 (Compl.).

2

Docket 1 at 2 ¶¶ 6-9 (Compl.).

3

Docket 1 at 4 ¶ 14 (Compl.).

4

Docket 1 at 4 ¶ 15 (Compl.).

5

Docket 1 at 5 ¶ 19 (Compl.).

6

Docket 1 at 9 ¶ 36 (Compl.).

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and the Carreiras believed that Mr. Azar continued to be the primary attorney on the
case. 7 Mr. Valcarce, however, filed a complaint against Dr. Cranfield on July 9, 2011 on
behalf of the Carreiras in federal district court. 8 Ms. Carreira agreed to the voluntary
dismissal of that Complaint after it was discovered that certain claims had not been
properly exhausted, Dr. Cranfield was not an employee of the United States, and the
statute of limitations on claims against Dr. Cranfield had already expired. 9
The Carreiras filed this suit against Ms. Duvall and Mr. Azar on June 27, 2012.
The Carreiras allege that they hired these attorneys to pursue a medical malpractice
action with respect to the January 2009 surgery, but due to the attorneys’ failure to file
an action within the applicable statute of limitations and other negligence, the Carreiras
lost their ability to recover in such an action. 10 On October 31, 2012, Ms. Duvall filed an
Answer as well as a Third-Party Complaint seeking to apportion fault to Dr. Cranfield
and Mr. Valcarce. 11 The Third-Party Complaint incorporates the claims in the Carreiras’
Complaint “by reference for illustrative purposes only.” 12
The Carreiras’ Motion to Determine Rule of Law was filed in November 2012 and
seeks a ruling that Ms. Duvall cannot assert a third-party claim against Dr. Cranfield. 13

7

Docket 1 at 9 ¶ 37 (Compl.).

8

Docket 1 at 9 ¶ 38 (Compl.).

9

Docket 1 at 10-11 ¶ 44 (Compl.).

10

Docket 1 at 1, 5-12 (Compl.).

11

Docket 21 at 20-22 (Duvall Answer & 3d. Party Compl.).

12

Docket 21 at 20-21 ¶4 (Duvall Answer & 3d. Party Compl.).

13

Docket 25 (Carreira Mot.); Docket 26 (Carreira Mot. Mem.).

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On January 23, 2013, Dr. Cranfield filed a Motion to Dismiss based on the same
analysis raised in the Carreiras’ Motion to Determine Rule of Law. 14
On January 24, 2013, Mr. Valcarce and the Carreiras signed a “Settlement and
Release of All Claims.” 15
On February 14, 2013, Mr. Valcarce filed a Motion to Dismiss, seeking dismissal
from this action based on the settlement agreement. 16 The Carreiras joined in this
motion on February 22, 2013. 17 Also on February 22, 2013, Ms. Duvall filed a partial
opposition to the motion. 18 Mr. Valcarce filed a reply on February 28, 2013. 19 On
March 11, 2013, Mr. Azar filed a qualified non-opposition to the motion. 20
III.

DISCUSSION
A. Jurisdiction.
This Court has diversity jurisdiction in this action pursuant to 28 U.S.C. § 1332.

14

Docket 40 (Cranfield Mot. to Dismiss).

15

Docket 46-1 (Ex. 1 to Valcarce Mot.: Settlement Agreement).

16

Docket 46 at 2-3 (Valcarce Mot. to Dismiss).

17

Docket 50 (Joinder of Valcarce Mot.).

18

Docket 49 (Duvall Opp. Valcarce Mot.).

19

Docket 51 (Reply Valcarce Mot.).

20

Docket 55 (Azar Qualified Non-Opp.) (It appears that Mr. Azar is not opposed to the dismissal
of Mr. Valcarce so long as Mr. Azar retains the ability to allocate fault to Mr. Valcarce pursuant
to AS 09.17.080).
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B. Motions to Dismiss.
1. Standard for Dismissal.
The two motions to dismiss were filed pursuant to Federal Rule of Civil
Procedure 12(b)(6). A motion to dismiss for failure to state a claim under Rule 12(b)(6)
seeks dismissal of a claim against a party based solely upon the statements made in
the pleadings. 21 In evaluating a Rule 12(b)(6) motion, this Court applies the “facial
plausibility” pleading standard as analyzed by the Supreme Court in Ashcroft v. Iqbal. 22
Under that standard, to survive a Rule 12(b)(6) motion to dismiss, “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is
plausible on its face.’” 23
2. Dr. Cranfield’s Motion to Dismiss.
Ms. Duvall’s Third-Party Complaint seeks to apportion fault to Dr. Cranfield. AS
09.17.080 provides for the apportionment of fault “in actions involving fault of more than
one person[.]” However, “[t]o apportion fault to a party under AS 09.17.080, that party’s
conduct must be a legal cause of the plaintiff’s harm.” 24 In this action, the Carreiras
21

See Fed. R. Civ. P. 12(b)(6) and (d).

22

Ashcroft v. Iqbal, 556 U.S. 662 (2009).

23

Id. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)).

24

Ennen v. Integon Indem. Corp., 268 P.3d 277, 289 (Alaska 2012) (internal citations omitted).
In that case, Jacob Ennen was seriously injured while the passenger in a vehicle driven by
someone insured by Integon. Integon made a payment to cover the driver’s possible liability,
but denied any underinsured motorist benefits. Six years later, Integon learned its underinsured
motorist provision violated Alaska insurance statutes and paid Ennen these benefits. Ennen
sued Integon for bad faith and the insurer filed a third-party complaint against Craig Allen,
Ennen’s former attorney, claiming that Allen should have realized that Integon’s policy language
was defective. The superior court dismissed Allen, and the Alaska Supreme Court affirmed on
the alternative ground that Allen’s conduct was not a proximate cause of Ennen’s damages so
fault could not be apportioned to him under AS 09.17.080.
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seek damages based on the alleged harms they incurred when Mr. Azar and Ms. Duvall
failed to timely file a lawsuit and failed to properly investigate their potential claims. 25
The specific harm that the Carrieras incurred that underlies their lawsuit against Ms.
Duvall and Mr. Azar is their inability to recover any damages from Dr. Cranfield. Had
the attorneys pursued the medical malpractice claim in a timely manner, then the
Carreiras would not have suffered that particular harm, as they could have been made
whole as a result of that medical malpractice claim. The medical care that Dr. Cranfield
provided is not a legal cause of this specific harm. 26
Ms. Duvall cites to a Texas case, In re Smith, for the proposition that an
underlying tortfeasor may be added as a party to a legal malpractice action against a
plaintiff’s former attorneys for negligently investigating the underlying tort and failing to
sue the correct defendant before the statute of limitations ran. 27 However, that case
holds that if the defendants had made allegations that the underlying tortfeasor
“somehow tortiously contributed to any error committed by” the attorneys in their
investigation of the case, then that tortfeasor could be added through a third-party
complaint. 28 In that circumstance, the underlying tortfeasor can be named as a party
not because she allegedly committed the underlying tort, but because she is alleged to
25

Docket 1 at 13, 15-18.

26

See also Domke v. Alyeska Pipeline Service Co., Inc., 137 P.3d 295, 306 (Alaska 2006) (trial
court erred in permitting jury to allocate fault to employee plaintiff in claim for tortious
interference with employment contract).
27

Docket 33 at 14-15 (Duvall Opp. Mot.) (citing In re Smith, 366 S.W.3d 282, 284 (Tex. App.
2012)).
28

In re Smith, 366 S.W.3d at 286. There, the attorneys erroneously sued the mother of the
underlying tortfeasor, and not the tortfeasor herself, such that a tortious contribution by the
underlying tortfeasor to the attorney’s negligent investigation of the claim is envisionable.
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have “tortiously contributed to cause the harm for which [the plaintiff] is suing [the
attorneys. 29 Here, there is no allegation that Dr. Cranfield may have contributed in
some manner to the attorneys’ alleged negligence. Accordingly, Dr. Cranfield may not
be joined for apportionment purposes with respect to the harm alleged in the Carreiras’
Complaint and Dr. Cranfield’s Motion to Dismiss is GRANTED.
3. Mr. Valcarce’s Motion.
Ms. Duvall also seeks to join Mr. Valcarce for purposes of apportionment. AS
09.17.080 provides “[i]n all actions involving fault of more than one person, including
third-party defendants and persons who have settled or otherwise been released, the
court . . . [shall] make findings, indicating . . . the percentage of the total fault that is
allocated to each claimant, defendant, third-party defendant, person who has been
released from liability, or other person responsible for the damages.” 30

Thus, the

statute allows fault to be apportioned to Mr. Valcarce, even though he has no further
duty to defend himself or further legal interest in these proceedings.

In these

circumstances, he is not required to remain a party. 31 Ms. Duvall asserts that Mr.
Valcarce should remain a party for ease in taking his deposition. If he is dismissed, she
contends he will need to be subpoenaed to require him to attend a deposition. 32 The
29

Id.

30

AS 09.17.080(a).

31

See Restatement (Third) of Torts § 24 cmt. e (2000) (“When a settlement is reached between
the plaintiff and a potentially liable tortfeasor that releases only the settling tortfeasor, the
settling tortfeasor ordinarily should be dismissed from the lawsuit or, if no suit has been initiated,
not joined in any action that is subsequently brought. Dismissal occurs even if contribution
claims have been made against or by the settling tortfeasor.”); Pagenkopf v. Chatham Elec.,
Inc., 165 P.3d 634, 643 n.38 (Alaska 2007) (relying on Restatement § 24 cmt. e).
32

Docket 49 at 2 (Duvall Opp. to Valcarce Mot.).

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only potential prejudice from dismissal is that Ms. Duvall would need to complete
subpoena paperwork, pay a witness fee and serve the subpoena on Mr. Valcarce; these
requirements do not constitute a sufficient reason to keep Mr. Valcarce as a party. 33
Therefore, Mr. Valcarce’s Motion to Dismiss is GRANTED.
C. The Carreiras’ Motion for Ruling of Law.
As the Court has granted Dr. Cranfield’s Motion to Dismiss, it follows that the
Carreiras’ Motion to Determine Rule of Law is GRANTED as well.
IV.

CONCLUSION
For the foregoing reasons, it is ORDERED that:
1. The plaintiffs’ Motion to Determine Rule of Law at Docket 25 is GRANTED. A
third-party claim may not be asserted against Dr. Cranfield.
2. Dr. Cranfield’s Motion to Dismiss at Docket 40 is GRANTED, and Dr. Cranfield is
DISMISSED from this action with prejudice.
3. Mr. Valcarce’s Motion to Dismiss at Docket 46 is GRANTED, and Mr. Valcarce is
DISMISSED from this action with prejudice, but this does not affect the
defendants’ right to seek to apportion fault to him.
4. The Clerk of Court is directed to amend the case caption to delete the Third Party
Complaint.
DATED at Anchorage, Alaska this 16th day of April, 2013.
/s/ Sharon L. Gleason
United States District Judge

33

Docket 51 at 3 (Reply to Duvall Opp. to Valcarce Mot.).

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