Ferrer-Rodriguez et al v. Gonzlez-Droz, et al, No. 3:2012cv01841 - Document 93 (D.P.R. 2014)

Court Description: 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)

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UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO 1 2 3 4 WALESKA FERRER-RODRIGUEZ, RAY RIVERA-MONTALVO, Civil No. 12-1841 (JAF) Plaintiff, v. DR. EFRAIN GONZÃ LEZ-DROZ, CONJUGAL PARTNERSHIP GONZALEZ-DOE, SIMED INSURANCE COMPANY, Defendant. 5 6 OPINION AND ORDER 7 Plaintiffs Waleska Ferrer-RodrÃguez and Ray Rivera-Montalvo ( Plaintiffs ) 8 brought a medical malpractice suit under diversity jurisdiction against Defendants 9 Dr. EfraÃn GonzÃ¡lez-Droz, Conjugal Partnership GonzÃ¡lez-Doe, and SIMED Insurance 10 Company. (Docket No. 1.) Defendant SIMED filed a motion to dismiss based on a 11 failure to toll the statute of limitations. (Docket No. 49.) We find that the statute of 12 limitations was properly tolled, and we deny the motion to dismiss. 13 When considering a motion to dismiss, we must construe the complaint in the 14 plaintiff s favor, accept all non-conclusory allegations as true, and draw any reasonable 15 inferences in favor of the plaintiff. RodrÃguez-Ramos v. HernÃ¡ndez-Gregorat, 685 F.3d 16 34, 39-40 (1st Cir. 2010) (citation omitted). Therefore, to the extent that any facts are 17 disputed, the facts set forth below represent Plaintiffs version of the events at issue. Civil No. 12-1841 (JAF) -2- 1 Plaintiffs delivered a stillborn child on October 15, 1998. They first discovered 2 that this was the result of medical malpractice by Defendant GonzÃ¡lez-Droz upon the 3 receipt of an autopsy in December 1998. 4 limitations by filing an action at the Puerto Rico courts on October 15, 1999 under docket 5 number JDP-99-0462. (Docket No. 1.) As conceded by Defendant SIMED, that action 6 was filed against both Defendant GonzÃ¡lez-Droz and Defendant SIMED. 7 No. 49.) Plaintiffs filed for a voluntary dismissal of said action on April 10, 2007, and 8 judgment was entered in accordance on April 17, 2007. On April 9, 2008, Plaintiffs re- 9 filed their action as a federal case, Civ. No. 08-1417 (JP), which was dismissed without 10 prejudice for lack of complete diversity jurisdiction on November 14, 2008. Plaintiffs 11 filed another action under Civ. No. 09-2163 (DRD) on November 12, 2009, and that case 12 was dismissed without prejudice on January 26, 2012, due to a bankruptcy proceeding 13 involving Defendant GonzÃ¡lez-Droz. (Docket No. 1.) That action named Defendant 14 GonzÃ¡lez-Droz but did not name SIMED. (Docket No. 49.) After Defendant GonzÃ¡lez- 15 Droz was discharged from bankruptcy status, Plaintiffs re-filed the instant action on 16 October 5, 2012, as Civ. No. 12-1841, against both Defendant GonzÃ¡lez-Droz and 17 Defendant SIMED. (Docket No. 1.) Plaintiffs properly tolled the statute of (Docket 18 Federal courts sitting in diversity apply state substantive law and federal 19 procedural law. Gasperini v. Ctr. For Humanities, Ic., 518 U.S. 415, 427 (1996). In 20 Puerto Rico, the tolling of civil actions is a question of substantive law. See RodrÃguez 21 Narvaez v. Nazario, 895 F.2d 38, 43 (1st Cir. 1990). Under Puerto Rico s tort statute, a 22 one-year statute of limitations applies. See P.R. Laws Ann. Titl. 31 § 5298(2). Article Civil No. 12-1841 (JAF) -3- 1 1873 of Puerto Rico s Civil Code provides three mechanisms by which the prescription 2 of actions can be tolled, including by their institution before the courts. P.R. Laws 3 Ann. Tit. 31, § 5303; see also Tokyo Marine & Fire Ins. Co., Ltd. v. Perez & Cia, De 4 Puerto Rico, Inc., 142 F.3d 1, 4 (1st Cir. 1998). Once an action is commenced in court, it 5 causes the entire limitations period to start anew from the date that action comes to a 6 definite end. LÃ³pez-GonzÃ¡lez v. Mun. of ComerÃo, 404 F.3d 548 (1st Cir. 2005). 7 Following these rules, the last action against Defendant GonzÃ¡lez-Droz ended 8 January 26, 2012. (Docket No. 1.) If Defendant SIMED is solidarily liable with its 9 insured, then there was bar to litigation until January 26, 2013, well after the filing of this 10 action. Id. The solidarity doctrine in the Puerto Rico Civil Code is based on the theory 11 that there is one obligation, shared by several debtors. Tokyo Marine, 142 F.3d at 6. In 12 cases of solidarity, the interruption of prescription against one defendant also interrupts 13 the prescription of claims against any other defendants who are solidarily liable with the 14 first. Tokyo Marine, 142 F.3d at 4 (citations omitted); see also P.R. Laws Ann. Tit. 31 15 § 5304. The First Circuit has established that under Puerto Rico law, insured defendants 16 and their insurance companies are solidarily liable for the acts of the insured. Tokyo 17 Marine, 142 F.3d at 7; Torres Vazquez v. Commercial Union Ins. Co., 367 F.Supp. 2d 18 231, 240 (2005). Therefore, the tolling of the statute of limitations against Defendant 19 GonzÃ¡lez-Droz also tolled the statute of limitations against Defendant SIMED. Because 20 the one-year statute of limitations began to run anew on January 26, 2012, Plaintiffs 21 complaint of October 5, 2012, was not time-barred. Civil No. 12-1841 (JAF) -4- 1 Therefore, Defendant SIMED s motion to dismiss (Docket No. 49) is DENIED. 2 IT IS SO ORDERED. 3 San Juan, Puerto Rico, this 9th day of January, 2014. 4 5 6 S/JosÃ© Antonio FustÃ© JOSE ANTONIO FUSTE U. S. DISTRICT JUDGE

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