Morales-Figueroa v. Valdes, D.C. et al

Filing 44

OPINION AND ORDER denying without prejudice 31 Motion to Dismiss for Failure to State a Claim. The Court will enter an Initial Scheduling Order in the coming days. Answer to the Complaint due by 4/21/2016. Signed by Judge Daniel R. Dominguez on 3/24/2016. (JM)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

MIGUEL MORALES FIGUEROA,
Plaintiff,
v.
Civil No. 15-1365 (DRD)
RUBEN VALDES, D.C., et al.,
Defendants.

OPINION AND ORDER
Plaintiff Miguel Morales-Figueroa filed the instant personal
injury lawsuit against Defendants Ruben Valdes, D.C., Alicia M.
Santos,
NCMIC

the

conjugal

Insurance

partnership

Company

under

constituted
diversity

between

them,

and

jurisdiction,

28

U.S.C. § 1332. Pending before the Court are Defendants’ Motion to
Dismiss

(Docket

No.

13),

Plaintiff’s

Response

in

Opposition

to

Motion to Dismiss (Docket No. 14), Defendants’ Reply Plaintiff’s
Response in Opposition to Motion to Dismiss (Docket No. 19), and
Plaintiff’s Sur-reply to Defendants’ Reply (Docket No. 24). For the
reasons provided below, the Court hereby DENIES Defendants’ Motion
to Dismiss.
I.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Miguel Morales-Figueroa (“Plaintiff”) alleges that,
on or about September 18, 2013, Plaintiff visited Ruben Valdes,
D.C.’s

office

seeking

treatment
1

for

back

pain.

Valdes,

a

chiropractor, evaluated Plaintiff on September 24, 2013 and ordered
Plaintiff to receive exercise therapy, followed by icing. Plaintiff
claims he instructed Valdes to not perform any spinal manipulations
on him.
On September 25, 2013, Plaintiff again was ordered to receive
exercise therapy and to ice the affected area. However, on this
day, Plaintiff also had his spine manipulated by Valdes. Plaintiff
alleges that having his spine manipulated severely aggravated his
preexisting back pain to an unbearable degree.
On October 1, 2013, Plaintiff was evaluated by a neurosurgeon
who

diagnosed

associated

him

weakness

with
and

“severe
very

left
severe

L5/S1

radiculopathy

worsening

since

with

Valdes’

chiropractic manipulation on September 25, 2013.” Docket No. 1 at
4. Plaintiff alleges he

has also experienced bowel and bladder

dysfunction, intolerable pain, and inability to sleep for three
days following his September 25 visit to Valdes’ office.
On April 8, 2015, Plaintiff Miguel Morales-Figueroa filed suit
against Defendants Ruben Valdes, D.C. (“Valdes”), Alicia M. Santos
(“Santos”)1, the conjugal partnership constituted between Valdes and
Santos, and NCMIC Insurance Company (“NCMIC”) (“Defendants”). See
Docket

No.

1.

Plaintiff

avers

that

Valdes’

chiropractic

spine

manipulation aggravated his pre-existing back condition, caused him

1

Plaintiff did not include Defendant Santos in his initial complaint.
Instead, Plaintiff amended his initial complaint with leave of the Court to
include her as a named defendant. See Docket No. 29.
2

severe mental and physical pain, and has impaired his ability to
conduct his own business.
On June 3, 2015, Defendants Santos, the Valdes-Santos conjugal
partnership, and NCMIC filed a Motion to Dismiss (Docket No. 13,
restated at Docket No. 31) alleging that the claims against them
were

time-barred.

tolled

the

sending
However,

The

one-year

him

an

movants
statute

argue
of

extra-judicial

because

Plaintiff

that

limitations

claim

did

Plaintiff

not

letter

successfully

against
on

July

any

include

of

Valdes
14,
the

by

2014.
moving

parties in the letter, the limitations period against the movants
was never tolled.
On June 10, 2015, Plaintiff filed a Response in Opposition to
Motion to Dismiss (Docket No. 14). Therein, Plaintiff averred that,
pursuant to landmark Puerto Rico Supreme Court decision Fraguada
Bonilla v. Hosp. Auxilio Mutuo, 186 D.P.R. 365 (2012), the claims
against the movants were not time-barred because the statute of
limitations was tolled against Valdes and he is in perfect solidary
liability with the movants.
On June 29, 2015, Defendants Santos, the conjugal partnership,
and NCMIC filed their reply to Plaintiff’s opposition (Docket No.
19).

Defendants

emphasized
between

that

them

are

re-stated
Santos,

their

Valdes,

distinctly

arguments
and

separate

the

for

dismissal

conjugal

legal

and

partnership

entities,

and

the

statute of limitations had to be tolled with respect to each one of
3

them. Furthermore, Defendants emphasized that Plaintiff was also
under the obligation to separately toll the statute of limitations
for NCMIC, Valdes’ insurance carrier.
II.

STANDARD OF REVIEW FOR MOTIONS TO DISMISS

Federal Rule of Civil Procedure 8(a) requires plaintiffs to
provide “a short and plain statement of the claim showing that the
pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

Under

Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff
must

“provide

the

grounds

of

his

entitlement

[with]

more

than

labels and conclusions.” See Ocasio-Hernandez v. Fortuño-Burset,
640 F.3d 1, 12 (1st Cir. 2011) (“in order to ‘show’ an entitlement
to relief a complaint must contain enough factual material ‘to
raise

a

right

to

relief

above

the

speculative

level

on

the

assumption that all the allegations in the complaint are true (even
if doubtful in fact).’)(quoting Twombly, 550 U.S. at 555) (citation
omitted).

Thus, a plaintiff must, and is now required to, present

allegations

that

“nudge

[his]

claims

across

the

line

from

conceivable to plausible” in order to comply with the requirements
of Rule 8(a).

Id. at 570; see e.g. Ashcroft v. Iqbal, 556 U.S. 662

(2009).
When
occurs

in

considering
a

two-step

a

motion
process

to

dismiss,

under

the

the

Court’s

current

inquiry

context-based

“plausibility” standard established by Twombly, 550 U.S. 544, and
Iqbal, 556 U.S. 662. “Context based” means that a Plaintiff must
4

allege sufficient facts that comply with the basic elements of the
cause of action.

See Iqbal, 556 U.S. at 677-679 (concluding that

plaintiff’s complaint was factually insufficient to substantiate
the required elements of a Bivens claim, leaving the complaint with
only conclusory statements).
all

of

the

allegations

First, the Court must “accept as true

contained

in

a

complaint[,]”

discarding

legal conclusions, conclusory statements and factually threadbare
recitals of the elements of a cause of action.

Iqbal, 556 U.S. at

678. “Yet we need not accept as true legal conclusions from the
complaint

or

‘naked

assertion[s]’

devoid

of

‘further

factual

enhancement.’” Maldonado v. Fontanes, 568 F.3d 263, 268 (1st Cir.
2009) (quoting Iqbal, 556 U.S. 678) (quoting Twombly, 550 U.S. at
557).
Under the second step of the inquiry, the Court must determine
whether, based upon all assertions that were not discarded under
the first step of the inquiry, the complaint “states a plausible
claim

for

relief.”

Iqbal,

556

U.S.

679.

This

second

step

is

“context-specific” and requires that the Court draw from its own
“judicial

experience

and

common

sense”

to

decide

whether

a

plaintiff has stated a claim upon which relief may be granted, or,
conversely, whether dismissal under Rule 12(b)(6) is appropriate.
Id.
Thus,
plaintiff

“[i]n
must

order

allege

to

survive

sufficient
5

a

facts

motion
to

show

to

dismiss,

that

he

[a]

has

a

plausible entitlement to relief.”
F.3d 31, 41 (1st Cir. 2009).

Sanchez v. Pereira-Castillo, 590

“[W]here the well-pleaded facts do

not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged - but it has not ‘show[n]’
‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679
(quoting Fed. R. Civ. P. 8(a)(2)).
must

be

at

least

as

plausible

Furthermore, such inferences
as

any

“obvious

alternative

explanation.”

Id. at 679-80 (citing Twombly, 550 U.S. at 567).

“A

plaintiff

not

is

allegations
action.”

that

entitled
merely

to

‘proceed

parrot

the

perforce’

elements

of

by

virtue

of

the

cause

of

Ocasio-Hernandez, 640 F.3d at 12, (citing Iqbal, 556 U.S.

679).
The First Circuit has cautioned against equating plausibility
with an analysis of the likely success on the merits, affirming
that the plausibility standard assumes “pleaded facts to be true
and read in a plaintiff’s favor” “even if seemingly incredible.”
Sepúlveda-Villarini v. Dep’t of Educ. of P.R., 628 F.3d 25, 30 (1st
Cir. 2010) (citing Twombly, 550 U.S. at 556); Ocasio-Hernandez, 640
F.3d at 12 (citing Iqbal, 556 U.S. 679); see Twombly, 550 U.S. at
556 (“[A] well-pleaded complaint may proceed even if it appears
that a recovery is very remote and unlikely.”)(internal quotation
marks

omitted);

see

Ocasio-Hernandez,

640

F.3d

at

12

(citing

Twombly, 550 U.S. at 556)(“[T]he court may not disregard properly
pled factual allegations, ‘even if it strikes a savvy judge that
6

actual proof of those facts is improbable.’”).

Instead, the First

Circuit has emphasized that “[t]he make-or-break standard . . . is
that

the

plausible,

combined
[but]

allegations,

not

a

taken

merely

as

true,

conceivable,

must

case

state

for

a

relief.”

Sepúlveda-Villarini, 628 F.3d at 29.
However,
unsupportable

a

complaint

conclusions,

that

rests

periphrastic

on

“bald

assertions,

circumlocutions,

like” will likely not survive a motion to dismiss.
Blanchard, 83 F.3d 1, 3 (1st Cir. 1996).

and

the

Aulson v.

Similarly, unadorned

factual assertions as to the elements of the cause of action are
inadequate as well.
(1st Cir. 2011).
admissible

Penalbert-Rosa v. Fortuno-Burset, 631 F.3d 592

“Specific information, even if not in the form of

evidence,

would

likely

be

enough

dismiss] stage; pure speculation is not.”

at

[the

motion

to

Id. at 596; see Iqbal,

556 U.S. at 681(“To be clear, we do not reject [] bald allegations
on the ground that they are unrealistic or nonsensical. . . . It is
the

conclusory

extravagantly

nature
fanciful

of

[the]

allegations,

nature,

that

rather

disentitles

than

them

their

to

the

presumption of truth.”); see Mendez Internet Mgmt. Servs. v. Banco
Santander de P.R., 621 F.3d 10, 14 (1st Cir. 2010) (The Twombly and
Iqbal standards require District Courts to “screen[] out rhetoric
masquerading

as

litigation.”).

However,

merely

parroting

the

elements of a cause of action is insufficient. Ocasio-Hernandez,

7

640 F.3d at 12 (citing Sanchez v. Pereira-Castillo, 590 F.3d 31, 49
(1st Cir. 2009)).
The First Circuit recently outlined two considerations for
district courts to note when analyzing a motion to dismiss. GarcíaCatalán v. United States, 734 F.3d 100, 104 (1st Cir. 2013). First,
a complaint modeled on Form 11 of the Appendix of the Federal Rules
of Civil Procedure which contains sufficient facts to make the
claim

plausible

is

ordinarily

enough

to

surpass

the

standard

prescribed under Twombly-Iqbal. Id. at 104. Second, district courts
should accord “some latitude” in cases where “[a] material part of
the

information

needed

is

likely

to

be

within

the

defendant’s

control.” Id. (more latitude is appropriate in cases where “it
cannot reasonably be expected that the [plaintiff], without the
benefit of discovery, would have any information about” the event
that

gave

rise

to

the

alleged

injury.)(internal

citations

and

quotations omitted).
III. ANALYSIS
Statute of Limitations for Claims under 1802
The determinative issue in the Court’s analysis is whether
Plaintiff

properly

tolled

the

statute

of

limitations

against

Defendants Santos, the Valdes-Santos conjugal partnership, and/or
NCMIC.

For diversity tort actions such as the instant case, the

statute

of

controls.

limitations

is

substantive

law

and

Puerto

Rico

law

See Erie v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822
8

(1938); Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464
(1945); Daigle v. Maine Medical Center, 14 F.3d 684, 689 (1st Cir.
1994).

Puerto Rico’s Civil Code provides that

personal injury

actions carry a one year statute of limitations from the moment the
aggrieved person has knowledge of the injury.

31 P.R. LAWS §5298;

Rodriguez v. Suzuki Motor Corp., 570 F.3d 402, 406 (1st Cir.2009)
(“the statute of limitations starts to run once the injured party
knows both that he has suffered a harm and who is responsible for
it.”).

Although the general rule establishes that the one-year

term starts on the date the plaintiff becomes aware of the damage
and who caused the damage, if the plaintiff's lack of awareness is
due

to

his

own

negligence

or

carelessness,

the

statute

limitations will begin on the date the alleged tort occurred.

of
The

plaintiff is then presumed to have knowledge of the injury at the
time of the tortious act.2 Montañez v. Hospital Metropolitano, 157
D.P.R. 96 (2002). Based on the pleadings, there appears to be no
dispute

that

the

statute

of

limitations

commenced

on

the

day

Defendant Valdes manipulated Plaintiff’s spine, September 25, 2013.
From that date, Plaintiff had one year to file suit or otherwise
toll the statute of limitations against Defendants.

See De Leon v.

Caparra Center, 147 D.P.R. 797 (1999) (In claims under Art. 1802,
after interrupting the statute of limitations period, Plaintiffs
have one year to file suit).
2

The plaintiff has the burden of proving that he learned of the act at a later
date. Id.
9

Plaintiff argues that, although the statute of limitations
commenced on September 25, 2013, he sent Valdes a demand letter on
July 14, 2014, which interrupted the limitations period. See Docket
No. 75.

Article 1873 of the Civil Code provides three ways by

which the statute of limitations may be tolled.

Tokyo Marine and

Fire Ins. Co. v. Perez & CIA de Puerto Rico, Inc., 142 F.3d 1, 4
(1st Cir. 1998).

This may be accomplished (1) “by the institution

of an action before the courts [;]” (2) “by extrajudicial claim of
the creditor [;] and” (3) “by any act of acknowledgment of the debt
by the debtor.”

Id. (quoting Civil Code of Puerto Rico, 31 P.R.

LAWS §5303)(internal quotation omitted); see also Diaz de Diana v.
A.J.A.S. Ins. Co., 110 D.P.R. 471 (1980)(enumerating the elements
of a proper extra-judicial claim letter). The letter sent on July
24, 2014 constituted an extrajudicial claim of the creditor, and
Defendants admit that Plaintiff adequately tolled the statute of
limitations with respect to Defendant Valdes.

However, the movants

argue that, under Puerto Rico law, an extrajudicial claim letter
addressed

to

limitations

only
against

one

defendant

joint

and

can

only

severally

toll

the

liable

statute

of

defendants

in

perfect solidarity with the named defendant. See Fraguada Bonilla
v. Hospital Auxilio Mutuo, 186 D.P.R. 365 (2012); also see Docket
No.

13.

More

specifically,

Defendants

Santos,

the

conjugal

partnership, and NCMIC claim they are not in perfect solidarity
with Defendant Valdes.

Id.

On the other hand, Plaintiff counters
10

that the movants are perfectly solidary with Defendant Valdes due
to

the

nature

of

the

pre-existing

relationships

between

each

separate moving party and Defendant Valdes.
Before

the

Fraguada

decision,

Arroyo

v.

Hospital

la

Concepcion, 130 D.P.R. 596 (1992) was the controlling precedent on
tolling with respect to joint and severally liable defendants.
Arroyo,

the

solidarity

Puerto

doctrine

Rico

Supreme

“allows

for

court

timely

held

that

inclusion

In

the

of

unitary

a

solidary

tortfeasor not originally included in the action.” Id. Therefore,
in order to toll the statute of limitations as to any one potential
defendant,

a

plaintiff

need

only

have

alleged

in

an

amended

complaint that the new defendant was “solidarily liable for the
damages claimed against the original defendant in the complaint
[that was] filed within the period of limitations prescribed by
law.” Id.

In 2008, the Supreme Court of Puerto Rico expanded their

holding in Arroyo, allowing plaintiffs to add a joint and severally
liable defendant otherwise barred by the statute of limitations
even

though

the

“plaintiff

knew

beforehand

the

identity

and

elements necessary to exercise his cause of action against [that
defendant].” Commonwealth of P.R. v. Shell Oil Co. (In re Methyl
Tertiary Butyl Ether “MTBE” Prods. Liab. Litig.), 959 F.Supp.2d
476, 491 (S.D.N.Y.2013) (citing Garcia Perez v. Corp. Serv. Mujer,
174 D.P.R. 138, 155 (2008)).

11

The

landmark

Fraguada

decision

partly

overruled

Arroyo

by

holding that “the secondary effects of the traditional solidarity—
among

them,

govern.”

the

interruption

of

the

prescriptive

Fraguada, 186 D.P.R. at 381 (2012).

term—do

not

Fraguada further

held that “in actions for damages [involving imperfect solidarity],
the injured party must individually interrupt the prescriptive term
with regard to each joint and several co-causer,” id., and “timely
filing of a complaint against a supposed co-tortfeasor does not
toll the statute of limitations against the rest of the alleged cotortfeasors.” Id. at 377.
Plaintiff argues that there exists perfect solidarity between
all Defendants in the instant case. See Fraguada at 381 (“Perfect
solidarity” can be contracted for or can arise from pre-existing
relationship

ties

between

tortfeasors).

On

the

other

hand,

Defendants contend that the relationships between Defendant Valdes
and the moving parties are imperfect, and Plaintiff incorrectly
relied on the demand letter sent to Defendant Valdes to toll the
limitations period against the remaining defendants.
Tort Solidarity of a Conjugal Partnership under Puerto Rico
Law
If

the

spousal

relationship

is

characterized

by

perfect

solidarity, the suit against Defendant Santos and the Valdes-Santos
conjugal
cannot

partnership
be

considered

is

not

in

time-barred.

solidum
12

unless

However,
the

an

obligation

intention

to

be

solitarily liable clearly arises from the instrument. See Rosario
v. Sandoval, 60 P.R.R. 401, 403 (1942). Joint obligations are not
to be presumed unless there is an express agreement to that effect.
31 P.R. LAWS §3101.
A conjugal partnership in Puerto Rico, pursuant to Articles
1295 to Article 1326 of the Puerto Rico Civil Code, is a concept
which arises from a legally valid marriage wherein a married couple
share

in

the

“earnings

or

profits

indiscriminately

obtained

by

either of the spouses during the marriage . . . share and share
alike,” 31 P.R. LAWS §3621. Both members of a conjugal partnership
are

owners

in

equal

parts

to

all

goods

obtained

during

the

marriage. Montalván v. Rodríguez, 161 D.P.R. 411, 420 (2004).
Despite being characterized by

joint property ownership, a

conjugal partnership constitutes a separate legal entity from its
two spousal members. See Int'l Charter Mortgage Corp., 110 D.P.R.
862 (1981). Therefore, for a court to have jurisdiction over both
spouses and the conjugal partnership when all three have been named
in

a

suit,

it

is

necessary

to

serve

process

on

each

party

separately. Vega v. Bonilla, 153 D.P.R. 588 (2001). A party may not
recover from a spouse or from the conjugal partnership unless they
have been named in the suit and served with process. Nieves Diaz v.
Gonzalez Massas, 178 D.P.R. 820, 860 (2010).3

3

For a court to have jurisdiction over both spouses and the conjugal
partnership when all three have been named in a suit, it is necessary to
serve process on each party separately. Vega v. Bonilla, 153 D.P.R. 588
13

Notwithstanding
separate

from

its

that

the

members,

conjugal

all

debts

partnership
and

is

obligations

legally
incurred

during the marriage are chargeable to the conjugal partnership. 31
P.R. LAWS §3661. However, an obligation entered into for the sole
benefit

of

one spouse

or

entered

into

for

purposes

of

causing

injury or defrauding the other spouse may not be charged to the
conjugal partnership. Banco de Ahorro del Oeste v. Santos, 112
D.P.R. 70, 74 (1982); see also WRC Properties, Inc. V. Santana, 116
D.P.R. 127 (1985).
“The presumption of community property is not synonymous with
joint liability.” Pauneto v. Nuñez, 115 D.P.R. 591, 597 (1984). A
conjugal partnership, or a spouse’s, liability for torts performed
by the other spouse may be both personal or may be charged to the
conjugal partnership. A court faced with this question must make a
determination based on the facts of the case. However, the Puerto
Rico Supreme Court has generally held that, when a spouse’s acts
benefit

the

conjugal

partnership’s

property

partnership’s
shall

also

be

property
liable

interests,
for

the

the

spouse’s

actions. See Garcia v. Montero Saldana, 107 D.P.R. 319 (1978). “He
who expects profits, shall also expect losses.”

SLG v. Pauneto

Rivera, 130 D.P.R. 749, 757 (1992)(internal citations omitted).

(2001). Defendant Santos and the Valdes-Santos partnership first appeared in
the instant suit on August 4, 2015, when Plaintiff filed his Amended
Complaint (Docket No. 29). Both parties agreed to voluntarily appear without
being served. See Docket No. 25 at 1.
14

In

their

Motion

to

Dismiss,

Defendants

allege

Plaintiff’s

complaint contains no allegation that the conjugal partnership or
Defendant Santos benefitted in any way from Defendant Valdes’ work
as

a

chiropractor.

Circuit,

Docket

interpreting

Puerto

No.

31

Rico

at

4.

Law,

However,

has

held

the

that

First
“if

a

[spouse’s] work is profitable for the [conjugal partnership], the
liability will also fall on said [partnership’s] property.” CMI
Capital Mkt. Inv., LLC v. Gonzalez-Toro, 520 F.3d 58, 63-64 (1st
Cir. 2008)(citing Lugo–Montalvo v. Gonzalez–Mañon,
(1975)(holding

a

conjugal

partnership

was

104 D.P.R. 372

liable

for

husband’s

alleged medical malpractice).
At this stage in the proceedings it is unclear whether or not
Defendant Valdes’ chiropractic practice is profitable. Furthermore,
there is no evidence that the Santos-Valdes marriage is governed by
the principles of a conjugal legal partnership. However, there is
an allegation of spousal solidarity which is sufficient at law, as
the

Court

must accept

as

true the

allegations

of

a

complaint.

Iqbal, 556 U.S. 663-664. Further, there is jurisprudence pursuant
to which the pleadings create a rebuttable presumption of spousal
tort solidarity when one of the spouses runs a business for the
benefit of the conjugal partnership. Gonzalez-Toro. Therefore, at
this stage, the Court finds that the pleadings are sufficient to
support the allegation that the conjugal partnership and Defendant
Santos have benefitted from Defendant Valdes’ chiropractic practice
15

and may be, therefore, perfectly solidarily liable to Plaintiff in
this

case.

Accordingly,

Defendants

Santos

and

the

Santos-Valdes

conjugal partnership’s Motion to Dismiss (Docket No. 31) is hereby
DENIED.
Tort Solidarity of an Insurer with its Insured under Puerto
Rico Law
The one-year statute of limitations governing tort actions in
Puerto

Rico

also

applies

to

direct

actions

against

insurers.

Fraticelli v. St. Paul Fire & Marine Insurance Co., 375 F.2d 186
(1st Cir. 1967); see also Ramos v. Cont'l Ins. Co., 493 F.2d 329,
331-32 (1st Cir. 1974). Therefore, Plaintiff was under the same
obligation to bring suit against Defendant NCMIC within one-year
from the date Valdes performed a spinal manipulation on Plaintiff,
September 25, 2013. From that date, Plaintiff had one year to file
suit or otherwise toll the statute of limitations against Defendant
NCMIC.

See De Leon v. Caparra Center, 147 D.P.R. 797 (1999).

Because Plaintiff did not name NCMIC in his demand letter sent on
July

14,

2014,

only

a

finding

of

perfect

solidarity

between

Defendants NCMIC and Valdes would defeat Defendant NCMIC’s Motion
to Dismiss.
Under the Puerto Rico Civil Code, “[a]ny individual sustaining
damages

and

losses

shall

have, at

his

option, a

direct

action

against the insurer under the terms and limitations of the policy.”
26 P.R. LAWS §2003. Because the insurer-insured relationship is
16

born of a contract, the characteristics of the relationship are
governed by the terms of the agreement. Gen. Accid. Ins. Co. P.R.
v. Ramos, 148 D.P.R. 523 (1999).
An insurer’s tort solidarity may not be presumed. Instead,
tort solidarity should clearly arise from the insurance contract
and the insurer’s tort liability will always be limited to what is
established in the terms of the agreement. Id.; see Ruiz Rodriguez
v. Litton Indus. Leasing Corp., 574 F.2d 44 (1978) (holding that
statutory liability of insurer cannot exceed extent of contractual
undertakings with insured, pursuant to Puerto Rican direct action
statute); see also Clinica Dr. Perea v. Hernandez, 85 P.R.R. 738
(1962). However, if an insurer fails to plead the limits of its
liability coverage over its insured, the insurer’s liability will
be “coexistive with the sum claimed in [Plaintiff’s] petition.”
U.S.

Fidelity

&

Guaranty

Co.

v.

Superior

Court,

85

P.R.R.

124

(1962).
Defendants have provided no evidence that NCMIC and Valdes’
insurance contract does not include a solidarity clause. Plaintiff,
on the other hand, would have the Court follow Tokyo Marine and
Fire Ins. Co. Ltd. v. Perez & Cia, De Puerto Rico, Inc., 142 F.3d 1
(1st Cir.1998) where the First Circuit established, interpreting
Puerto

Rico

law,

that

insured

defendants

in

tort

actions

are

solidarity liable with its insurer. However, in order to make a
solidarity determination with certainty, the Court must necessarily
17

have

evidence

shedding

light

on

the

terms

of

the

insurance

contract. At this stage, Plaintiff has pled sufficient facts in his
complaint for the Court to determine that it is plausible that
Defendants NCMIC and Valdes may be solidarily liable. Accordingly,
Defendant

NCMIC’s

Motion

to

Dismiss

(Docket

No.

31)

is

hereby

DENIED.
V. CONCLUSION
Plaintiff has pled sufficient facts for the Court to determine
that

the

perfect

movants’

relationships

solidarity.

Therefore,

with

and

Defendant

for

the

Valdes

reasons

are

of

elucidated

above, the Court hereby DENIES without prejudice Defendants’ Motion
to Dismiss (Docket No. 31). If, after discovery, Defendants produce
evidence regarding the terms of the insurance contract and/or the
characteristics

of

the

conjugal

partnership’s

financial

arrangements, Defendants may restate their grounds for dismissal at
the

summary

judgment

stage.

Accordingly,

Defendants

are

hereby

ordered to file an answer to the complaint within twenty (20) days.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 24th day of March, 2016.
S/ DANIEL R. DOMÍNGUEZ
DANIEL R. DOMÍNGUEZ
U.S. District Judge

18