Ferrer-Rodriguez et al v. Gonzlez-Droz, et al

Filing 93

OPINION AND ORDER in support of the court's denial of 49 MOTION to Dismiss filed by SIMED Insurance Company. Signed by Judge Jose A. Fuste on 01/09/2014.(mrj)

UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO

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WALESKA FERRER-RODRIGUEZ, RAY
RIVERA-MONTALVO,
Civil No. 12-1841 (JAF)
Plaintiff,
v.
DR. EFRAIN GONZÁLEZ-DROZ,
CONJUGAL PARTNERSHIP
GONZALEZ-DOE, SIMED INSURANCE
COMPANY,
Defendant.
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OPINION AND ORDER

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Plaintiffs Waleska Ferrer-Rodríguez and Ray Rivera-Montalvo (“Plaintiffs”)

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brought a medical malpractice suit under diversity jurisdiction against Defendants

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Dr. Efraín González-Droz, Conjugal Partnership González-Doe, and SIMED Insurance

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Company. (Docket No. 1.) Defendant SIMED filed a motion to dismiss based on a

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failure to toll the statute of limitations. (Docket No. 49.) We find that the statute of

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limitations was properly tolled, and we deny the motion to dismiss.

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When considering a motion to dismiss, we must construe the complaint in the

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plaintiff’s favor, accept all non-conclusory allegations as true, and draw any reasonable

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inferences in favor of the plaintiff. Rodríguez-Ramos v. Hernández-Gregorat, 685 F.3d

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34, 39-40 (1st Cir. 2010) (citation omitted). Therefore, to the extent that any facts are

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disputed, the facts set forth below represent Plaintiffs’ version of the events at issue.

Civil No. 12-1841 (JAF)

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Plaintiffs delivered a stillborn child on October 15, 1998. They first discovered

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that this was the result of medical malpractice by Defendant González-Droz upon the

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receipt of an autopsy in December 1998.

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limitations by filing an action at the Puerto Rico courts on October 15, 1999 under docket

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number JDP-99-0462. (Docket No. 1.) As conceded by Defendant SIMED, that action

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was filed against both Defendant González-Droz and Defendant SIMED.

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No. 49.) Plaintiffs filed for a voluntary dismissal of said action on April 10, 2007, and

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judgment was entered in accordance on April 17, 2007. On April 9, 2008, Plaintiffs re-

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filed their action as a federal case, Civ. No. 08-1417 (JP), which was dismissed without

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prejudice for lack of complete diversity jurisdiction on November 14, 2008. Plaintiffs

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filed another action under Civ. No. 09-2163 (DRD) on November 12, 2009, and that case

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was dismissed without prejudice on January 26, 2012, due to a bankruptcy proceeding

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involving Defendant González-Droz. (Docket No. 1.) That action named Defendant

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González-Droz but did not name SIMED. (Docket No. 49.) After Defendant González-

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Droz was discharged from bankruptcy status, Plaintiffs re-filed the instant action on

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October 5, 2012, as Civ. No. 12-1841, against both Defendant González-Droz and

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Defendant SIMED. (Docket No. 1.)

Plaintiffs properly tolled the statute of

(Docket

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Federal courts sitting in diversity apply state substantive law and federal

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procedural law. Gasperini v. Ctr. For Humanities, Ic., 518 U.S. 415, 427 (1996). In

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Puerto Rico, the tolling of civil actions is a question of substantive law. See Rodríguez

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Narvaez v. Nazario, 895 F.2d 38, 43 (1st Cir. 1990). Under Puerto Rico’s tort statute, a

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one-year statute of limitations applies. See P.R. Laws Ann. Titl. 31 § 5298(2). Article

Civil No. 12-1841 (JAF)

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1873 of Puerto Rico’s Civil Code provides three mechanisms by which the prescription

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of actions can be tolled, including “by their institution before the courts.” P.R. Laws

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Ann. Tit. 31, § 5303; see also Tokyo Marine & Fire Ins. Co., Ltd. v. Perez & Cia, De

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Puerto Rico, Inc., 142 F.3d 1, 4 (1st Cir. 1998). Once an action is commenced in court, it

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causes the entire limitations period to start anew from the date that action comes to a

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definite end. López-González v. Mun. of Comerío, 404 F.3d 548 (1st Cir. 2005).

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Following these rules, the last action against Defendant González-Droz ended

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January 26, 2012. (Docket No. 1.) If Defendant SIMED is solidarily liable with its

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insured, then there was bar to litigation until January 26, 2013, well after the filing of this

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action. Id. The solidarity doctrine in the Puerto Rico Civil Code “is based on the theory

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that there is one obligation, shared by several debtors.” Tokyo Marine, 142 F.3d at 6. In

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cases of solidarity, “the interruption of prescription against one defendant also interrupts

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the prescription of claims against any other defendants who are solidarily liable with the

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first.” Tokyo Marine, 142 F.3d at 4 (citations omitted); see also P.R. Laws Ann. Tit. 31

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§ 5304. The First Circuit has established that under Puerto Rico law, “insured defendants

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and their insurance companies are solidarily liable for the acts of the insured.” Tokyo

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Marine, 142 F.3d at 7; Torres Vazquez v. Commercial Union Ins. Co., 367 F.Supp. 2d

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231, 240 (2005). Therefore, the tolling of the statute of limitations against Defendant

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González-Droz also tolled the statute of limitations against Defendant SIMED. Because

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the one-year statute of limitations began to run anew on January 26, 2012, Plaintiffs’

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complaint of October 5, 2012, was not time-barred.

Civil No. 12-1841 (JAF)

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Therefore, Defendant SIMED’s motion to dismiss (Docket No. 49) is DENIED.

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IT IS SO ORDERED.

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San Juan, Puerto Rico, this 9th day of January, 2014.

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S/José Antonio Fusté
JOSE ANTONIO FUSTE
U. S. DISTRICT JUDGE