313 F. Supp. 1020 | D.P.R. | 1970
ORDER
This cause came on to be heard on defendant’s motion dated January 16, 1970 soliciting dismissal of the complaint filed on the ground that the statute of limitation has tolled; and plaintiff’s motion dated January 20, 1970 to strike defendant’s answer to the complaint and motion to dismiss on the ground that default had been entered against appearing defendant by the Clerk of this court for failure to plead or otherwise defend.
Hearing on the above referred motions was held on January 30, 1970 at which time this Court granted the parties additional time to file memoranda. Said memoranda having been filed and the Court being fully advised, it finds:
A — Plaintiff’s motion to strike:
Plaintiff’s complaint seeking damages for an accident alleged to have occurred at the Holiday Inn Hotel was filed before this Court on November 21,
B — Defendant’s motion to dismiss:
Defendant requests of this Court that plaintiff’s complaint be dismissed on the ground that the statute of limitations on this claim has tolled, since plaintiff’s accident for which damages are sought allegedly occurred on August 8, 1968 and the complaint was filed before the Court on November 21, 1969; that is, after the expiration of the one year period' contemplated under Article 1868 of the Civil Code of Puerto Rico (31 L.P.R.A. § 5298) in which to file claims for personal injuries. It should be pointed out at the outset that plaintiff in its complaint has adopted by reference, pursuant to Rule 10(c) of the Federal Rules of Civil Procedure, a letter allegedly signed by defendant’s Vice-President, Mr. Hugh Helfenstein, and dated September 15, 1969 in which plaintiff’s various attempts to obtain proper compensation for the alleged accident are explicitly set out. An examination of this letter discloses that the accident which as pointed out above occurred on August 18, 1968, was duly reported by the insured to defendant five days later. On September 18, 1968 defendant ordered a thorough investigation of the matter through its Puerto Rico office. In October 1968 defendant was again advised by plaintiff that he was entering a hospital for treatment of alleged injuries due to the accident upon which claim is being made. Thereafter plaintiff again contacted defendant in January, February and September, 1969 repeatedly soliciting proper compensation from defendant for the injuries alleged to have been inflicted.
Article 1873 of the Civil Code of Puerto Rico (31 L.P.R.A. § 5303) governs the interruption of the statutory period in which to file civil claims. It contemplates three distinct possibilities whereby claimant may interrupt the running of the prescription period. First, that the claim be filed before the Court; second, that extrajudicial claims be made by the creditor on debtor, and third, that the debtor acknowledge an existing claim. Defendant in its motion to dismiss and supplementary memorandum takes the position on the authority of Cruz v. González, 66 D.P.R. 212 and other citations on its memorandum, that plain
A careful reading of paragraph 5 of plaintiff’s complaint and the letter incorporated thereto disclose that plaintiff’s claim to have interrupted the one year prescription period is not based on any demeanor, conduct or reliance of defendant which would have precluded him from proceeding with the filing of his suit. On the contrary, the allegation is based on the fact that plaintiff A1 Bedard did seek from defendant, on numerous occasions, extrajudicial payment for the injuries sustained in the accident and that defendant in its letter of September 15, 1969 acknowledges that such claims were made by Mr. Bedard on the various dates outlined above.
Defendant assumes that in order for the running of the statute of limitations to be interrupted, defendant has to induce plaintiff to believe that his claim had been recognized. This assumption is undoubtedly derived from defendant’s misunderstanding of the Cruz v. González decision.
In that case, the Puerto Rico Supreme Court cites the case of Bergeron v. Mansour, 1 Cir., 152 F.2d 27 (1945). In the Bergeron case, the Court of Appeals for the First Circuit was applying the substantive law of the State of Massachusetts under which a defendant is estopped from raising the defense of the statute of limitations if by his actions he has induced plaintiff to refrain from beginning judicial proceedings until the prescriptive period has run. However, as stated above, under Puerto Rican law one who is a creditor of defendant and who has made extrajudicial claims has no need to plead defendant’s estoppel if the statute of limitations has run. It is enough that such extrajudicial claims have been made to interrupt the running of the statute of limitations and defendant’s actions have no bearing on the matter.
The Cruz decision, properly understood, merely states that when plaintiff is not a creditor of defendant, extrajudicial claims are not sufficient to interrupt the running of the prescriptive period.
For the above stated reasons, the Court finds that plaintiff did in fact interrupt the prescriptive period contemplated by Article 1868 of the Puerto Rico Civil Code (31 L.P.R.A. § 5298) by his repeated extrajudicial claims for payment on his debtor Consolidated Mutual Insurance Company and therefore orders that defendant’s motion to dismiss because the statutory period in which to file has run, be, and is hereby denied.
. Paragraph 5 of plaintiff’s complaint reads ns follows:
“5. In a number of occasions plaintiff contacted Consolidated Mutual Insurance Company seeking payment for the injuries suffered by him. Claim for payment has been recognized by defendant Consolidated Mutual Insurance Company in a letter from its Vice-President, Mr. Hugli Helfenstein dated September 15, 1969, copy of which is attached to his complaint and adopted by reference so as to form a part of it.”
. Law No. 10 of April 15, 1929.