Montaño v. Frezza
2017 NMSC 15
| N.M. | 2017Background
- Kimberly Montaño, a New Mexico resident, underwent bariatric surgery in Texas in 2004 performed by Dr. Eldo Frezza, a Texas Tech University Health Sciences Center (a Texas state entity) employee; complications later alleged to be due to Frezza’s negligence.
- Montaño filed a medical-malpractice suit in New Mexico in 2011 naming Frezza individually and alleging negligence and failure to disclose/diagnose.
- Frezza moved to dismiss under NMRA 1-012(B)(6), arguing New Mexico should recognize Texas sovereign-immunity law (TTCA §101.106(f)) by comity, which requires dismissal of suits against individual state employees unless the plaintiff substitutes the governmental employer within 30 days.
- The district court and Court of Appeals declined to apply Texas law on comity/public-policy grounds; this Court granted certiorari to resolve whether comity requires applying TTCA §101.106(f).
- The Supreme Court reversed, applying comity and TTCA §101.106(f), and ordered dismissal without prejudice because Montaño did not substitute the Texas governmental unit within 30 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether New Mexico must apply Texas sovereign-immunity provisions (TTCA §101.106(f)) under comity | Montaño: New Mexico should not apply Texas law because it conflicts with New Mexico public policy and would deny New Mexicans forum access | Frezza: New Mexico should extend comity and apply TTCA §101.106(f), which requires dismissal of suits naming state employees unless the governmental entity is substituted | Court: Apply comity; TTCA §101.106(f) governs and mandates dismissal of Frezza absent timely substitution |
| Whether the TTCA’s prohibition on suing individual employees is materially different from NMTCA protections | Montaño: NMTCA permits naming employees and promotes access to courts; Texas rule is incompatible with that policy | Frezza: TTCA’s rule functions as indemnity—government remains liable and defended—so policies are similar | Court: The statutes achieve essentially the same end (government indemnity); differences are not contrary to New Mexico public policy |
| Whether New Mexico’s interest in providing redress to its residents outweighs comity | Montaño: New Mexico has a strong interest in compensating injured residents, especially with limited cross-border options | Frezza: Texas has a strong interest in uniform application of liability/immunity for its state employees acting in Texas | Court: Texas has a substantial interest here (acts occurred in Texas by a Texas state employee); New Mexico’s interest does not outweigh comity |
| Whether denying comity would encourage forum shopping and impair interstate cooperation | Montaño: Denying comity protects New Mexicans’ access to courts; forum-shopping concern is overblown | Frezza: Refusing comity would invite forum shopping by plaintiffs naming Texas employees in NM that cannot be sued in TX | Court: Extending comity will reduce forum shopping and promote reciprocity; favors applying Texas law |
Key Cases Cited
- Nevada v. Hall, 440 U.S. 410 (1979) (discusses presumption of interstate comity and limits on requiring states to apply sister-state law conflicting with forum policy)
- Franchise Tax Bd. of Cal. v. Hyatt, 538 U.S. 488 (2003) (forum may rely on its own sovereign-immunity contours as a benchmark in comity analysis)
- Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011) (Texas courts dismiss suits against state-employed physicians under TTCA §101.106(f))
- United States v. Tex. Tech Univ., 171 F.3d 279 (5th Cir.) (Texas Tech University and its health sciences center treated as state entities for immunity purposes)
- Wright v. Yackley, 459 F.2d 287 (9th Cir. 1972) (expresses concern that physicians should not be deterred from providing cross-border care by fear of lawsuits in distant forums)