OPINION & ORDER
This is a diversity action for damages under article 1802 of the Puerto Rico Civil Code, 31 L.P.R.A § 5141, filed on August 5, 1994. Plaintiffs allege that American Airlines, Inc. (American) breached its duty of reasonable care in failing to ensure that an escalator, located on the premises of its terminal facility at the Luis Muñoz Marin International Airport, would not become overcrowded, and in failing to warn оf the dangers of overcrowding. They contend that American’s alleged negligent acts were the proximate cause of Maria Dolores Eery’s fall on January 30, 1993 and that American is liable for the emotional damages suffered by her and her husband, Apo-linar Vargas, for her physical damages and for the economic losses of the conjugal partnership.
On Oсtober 6, 1994, defendant made a special appearance and, without submitting to this Court’s jurisdiction, filed a motion to dismiss (docket entry 3) pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. American asserts that this action is time barred since the applicable statute of limitations of one year under Puerto Rico law, Article 1868 of the Civil Code, 31 L.P.R.A § 5298, has expired. Plaintiffs filed an opposition contending that the statute of limitations was interrupted by an extrajudicial claim in the form of a letter, sent by certified mail, copy of which was attached.
In its reply brief, American claims that the letter sent by counsel for the plaintiffs did not have the legal effect of interrupting the statute of limitations. It also argues that it ignored the existence of the letter since it was not received. A declaration under penalty of perjury made by Kathleen A. Ashley, analyst of the Insurance and Risk Management Department for American, was submitted in support of this.
Since both parties filed materials extraneous to the pleadings, defendant’s motion to dismiss was converted into a summary judgment request as the court may not contemplate matters outside the pleadings when considering a motion pursuant to Rule 12(b)(6). Fed.R.Civ.P. 12(b)(6);
e.g. Cooperativa de Ahorro y Credito Aguada v. Kidder,
Article 1868 of the Puerto Rico Civil Code, 31 L.P.RA. § 5298, is the statute of limitations applicable to actions based on defendant’s fault or negligence under Article 1802, 31 L.P.R.A § 5141. It establishes a one year limitations period for such actions from the time the aggrieved person had knowledge of the injury and could exercise his right. 31 L.P.R.A. §§ 5298, 5299;
Riley v. Rodriguez Pacheco,
There is no dispute on the onset of the limitations period. Eery fell from the escalator on January 30, 1993. This lawsuit was commenced on August 5, 1994, more than one yеar after the events occurred. Plaintiffs allege, however, that the letter sent to American interrupted the limitations period.
Article 1873 of the Puerto Rico Civil Code provides three methods for interrupting the limitations period:
Prescription of actions is interrupted by their institution before the courts, by extrajudicial claim of the creditor, and by any act of acknоwledgment of the debt by the debtor.
81 L.P.R.A. § 5302. We are concerned here with the second method: an extrajudicial claim by plaintiff.
The Supreme Court of Puerto Rico as well as our Circuit have, on many occasions, discussed the principles governing the extrajudicial tolling of the statute of limitations.
The principal purpose of a statute of limitations is to securе the economic and social stability of bilateral relations by encouraging swift claims for performance of contractual or legal obligations and thus procure the tranquility of the debtor against the eternal threat of a civil action against him.
Rodriguez-Narváez v. Nazario,
The termination of the period provided by the statute of limitations signals the extinction of the right of the injured person. Once time has elapsed, he has only a natural right which may not be exacted by legal means.
Cintron,
The burden of proving tolling, either through direct or circumstantial evidence, falls upon the party asserting it.
Acosta-Quiñones v. Matos-Rodriguez,
One of the legal principles often cited as governing the tolling of the statute of limitations is that tolling provisions must be interpreted restrictively against the party invoking their protection.
Díaz de Diana v. A.J.A.S.,
After
Díaz de Diana v. A.J.A.S.,
Puerto Rico’s Supreme Court has not reiterated this principle and has apparently abandoned it. In
Zambrana Maldonado v. Commonwealth,
The prior notice to the Secretary of Justicе was done by the “attorney for the claimant”, Mr. Zambrana Maldonado, and in it he first expressed that he was notifying the “following claim”. He then proceeded to indicate, among other things, the date and place where the facts occurred, the damages suffered and their cause and nature. Although it is a far cry from being a model of a tolling claim, analyzed in its tоtality and in liberal fashion, this communication expressed Mr. Zambrana Maldonado’s unequivocal will to exercise his right to be redressed by the State for his damages.
(Translation and emphasis ours.)
Zambrana Maldonado,
The prescription of the right is the exception, being its exercise or conservation the norm, because of whieh the law propitiates the exercise and conservation of rights through the use of prescription’s interrup-tive mechanisms.
(Translation ours.)
Interruption of the limitations period occurs with the “unmistakable manifestation of one, who threatened with the loss of his right, expresses his wish not to lose it”.
Feliciano v.
A.A.A.,
In principle, claim stands for demand or notice. That is: it is an act for which the holder of the substantive right, addresses the passive subject of said right, demanding that he adopt the required conduct. The claim, then, is a pretension in a technical sense.
Rodríguez-Narváez,
Adopting the position of the same Spanish authority, the Supreme Court of Puerto Rico has held that its form is not important; the claim may take any conceivable shape. Díez-Picazo,
Id.
at 131;
Matos-Rodríguez,
In the past, the Puerto Rico Supreme Court had referred to these requirements without giving them specific names or establishing their number. Recently, in
Galib-Frangie v. El Vocero de Puerto Rico,
1. Timeliness: The claim must be presented before the limitations period elapses. Galib-Frangie,95 JTS 71 at 922. If it is not, prescription will have occurred and the extrajudicial claim will serve no purpose. Orozco-Pardo, supra, p. 156.
2. Standing: The claim-must be made by the holder of the substantive right or by his lеgal representative. E.g. Galib-Frangie,95 JTS 71 at 922; Srio. del Trabajo v. F.H. Co., Inc.,116 D.P.R. 823 , 827; 16 Official Translations 1014, 1019 (1986); Rodríguez-Narváez,895 F.2d at 44 . It may also be exercised by an heir, subro-gee, or assignee, but not by an unrelated third person. Orozco-Pardo, supra, p. 157.
3. Identity: The claim must correspond exactly with the right being affected by prescription. Galib-Frangie,95 JTS 71 at 922. It must require or demand the same conduct or relief ultimately sought in the subsequent lawsuit. E.g. Cintrón,90 JTS 128 at 8232-33; Rodríguezr-Narváez,895 F.2d at 44 .
4. Suitability of the means used: The claim must adequately serve to toll the limitations period, dеpending on the particular case presented. Galib-Frangie,95 JTS 71 at 922; Orozco-Pardo, supra, p. 157. Based on prior statements of the Court regarding extrajudicial tolling, other conditions, not specifically addressed in itslatest opinion on the subject, may logically be included in this requirement:
a. It must be “precise and specific.” E.g. Jiménez v. Corte,65 D.P.R. 37 ;65 P.R.R. 35 , 42 (1945); Fernández v. Chardón,681 F.2d 42 , 53 (1st Cir.1982).
b. It must be addressed to the debtor or passive subject of the right, not to a third party. E.g. Vetilla v. Pueblo Supermarket,111 D.P.R. 585 , 587; 11 Official Translations 732, 734-35 (1981); Rodríguez-Narváez,895 F.2d at 44 .
c. The letter must do something more than merely inform or remind, otherwise it would not constitute the “unmistakable manifestation of one, who threatened with the loss of his right, expresses his wish not to lose it.” Galib-Frangie,95 JTS 71 at 923; Zambrana-Maldonado,92 JTS 12 at 9174.
The alleged debtor must receive the extrajudicial claim.
2
On multiple occasions, the Supreme Court has stated that the letter must “be received” by the debtor.
Acosta-Quiñones,
That part of the doctrine originated in
Diaz de Diana,
in which the Court quotes Díez-Picazo. The Spanish scholar theorizes that it is sufficient that the claim be addressed to the debtor and that the claimant employ the necessary means that a person of average diligence would have employed to accomplish notice. Díez-Picazo,
supra,
p. 130. He gives, as an example of the application of this norm, a situation in which the claim is left in the domicile of the debtor with the persons with whom the debtor lives.
Id.
However, the Court аdopted the application rather than the norm, emphasizing the requirement that the claim arrive at the domicile of the debtor.
Díaz de Diana,
An isolated sentence in
Diaz de Diana
seems to require
actual
knowledge of the claim by the debtor.
Díaz de Diana,
We shall now examine the following letter sent by plaintiffs’ attorney to defendant to determine its sufficiency:
This law office has been retained to represent Mrs. Maria Dolores Kery to prosecute a claim against American Airlines for personal injuries arising out of a fall accident in an escalator in the American Airlines Terminal оn January 30th, 1993. Mrs. Kery, a resident of Dominican Republic, had just arrived from said country to Puerto Rico on American Airlines flight #1514, approximately at 5:00 PM.
I suggest that you contact your insurance carrier and/or your attorney as soon as possible to advise them of this law office’s intent to institute the appropriate federal action against American Airlines.
It is immediatеly evident that the letter only addresses claims made by Maria Dolores Kery. No mention is made about any claims by Apolinar Vargas and the conjugal society comprised by Kery and Vargas. Since plaintiffs have not adduced any other evidence to substantiate their claim that the limitations period was interrupted with re
The Supreme Court of Puerto Rico reached the same result in
Galib-Frangie,
In this case, the claims made by Apolinar Vargas and the conjugal partnership are DISMISSED. Whether the letter tolled the limitations period as to Eery’s claims merits consideration. That letter, dated August 6, 1993, falls within the original one-year term after the accident of January 30, 1993, and, therefore, satisfies the timeliness requirement.
It starts with the admonition that plaintiffs’ attorney has been “retained” to “represent” Eery ■ to “prosecute” a claim against American Airlines. Therefore, the letter satisfied the standing requirement outlined above: it was made by Eery’s legal representative.
To interrupt the prescriptive period, the extrajudicial claim and the civil suit must pursue identical purposes. In other words, the extrajudicial claim and the subsequent lawsuit must seek the same remedy. The letter did not request payment of a specific amount. However, its language made it fairly clеar that redress for Eery’s injuries was the remedy sought. The phrase “prosecute a claim against American Airlines for personal injuries arising out of a fall accident,” taken together with the last sentence of the letter — “intent to institute the appropriate federal civil action” — clearly convey the message that Eery was seeking damages and would file a complaint against American Airlines. Thus, we believe the identity requirement was met.
To address the suitability of the means used we must analyze its individual elements as outlined above. We believe the letter is sufficiently detailed to be deemed “precise and specific.” It states the identity of the aggrieved person (Maria Dolores Eery), the nature of the claim (for рersonal injuries arising out of a fall), the place of the injury (an escalator at the American Airlines terminal), its date (January 30, 1993), the time at which the fall occurred (approximately at 5:00 PM), and the flight in which plaintiff arrived (1514). It further apprised American to contact its attorneys or insurance carrier to advise them of Eery’s intention to file a complaint.
The lettеr was addressed to American Airlines and specifically to one Mr. Eklund. There is no evidence in the record concerning the identity of Mr. Eklund. However, defendants concede that the letter was correctly addressed. Declaration under penalty of perjury by Eathleen A. Ashley, ¶ 5. Thus, we conclude that the letter also satisfied the requisite that it be addressed to the alleged debtor.
Whether the letter does something more than merely inform or remind is a close question. It is true that the letter does not demand payment of any sum of money, nor does it allege negligence or causation. However, it must be remembered that an extrajudicial claim is not the
complaint
itself. In effect, as Albaiadejo states, it is a “pretension in a technicаl sense.” Hence, we believe it should not be subject to the standards of a complaint. It need not, for example, state a claim for purposes of Rule 12 analysis. Additionally, as Albaiadejo also comments, there is a large number of instances — between the mere reminder that a debt exists and the pure claim — in which it must be concluded that a claim exists and that, therefore, the limitations period was interrupted, provided that the “social conscience” considers that it is a conduct in which, with more or less subtlety, a decision to obtain payment is evidenced.
Zambrana-Maldonado,
The threshold issue is whether the letter was received by American. Kery alleges that she sent the letter to DFW Airport in Texas to an address that American concedes was the correct one. She has submitted a copy of the letter and the certified mail return receipt which shows it was delivered оn August 13, 1993 and received by someone whose first initial appears to be an R. However, in a document submitted by defendant, Kathleen A Ashley, Analyst of American’s Insurance and Risk Management Department, she declares under penalty of perjury that all mail of this type is received through their mail room located in the Fort Worth headquarters facility and that there is no reсord of ever receiving a copy of the letter. She further asserts that had this letter been received, an individual file would have been opened and a response sent, events which did not happen. She also notes that the postmark in the receipt shows that the letter was processed through the post office in Abilene, not the DFW Airport’s post offiсe.
What we have here, therefore, is a genuine issue as to a material fact: the certified mail return receipt is “sufficient evidence to permit a reasonable trier of fact to resolve the issue in the nonmovant’s favor.”
E.g. Casas Office Machines v. Mita Copystar America,
In view of the foregoing, American’s motion for summary judgment (docket entry 3) is GRANTED with respect to the claims made by Apolinar Vargas and the conjugal partnership. Their claims are DISMISSED as time barred. With respect to the claim for personal injuries by Maria Dolores Kery, the motion for summary judgment is DENIED.
SO ORDERED.
Notes
. "The phrase, in all honesty, is difficult to define, perhaps due in part to the fact that, viewеd abstractly, it encompasses an array of actions as diverse as human conduct itself."
Rodríguez-Narváez,
. This requisite could arguably fall under the "timeliness” requirement. That is, as a condition for tolling, it could be exacted that the extrajudicial claim be sent and received before the statute of limitations elapses. Notwithstanding, neither Orozco-Pardo nor the Supreme Court hint at this interpretation.
. As stated before, the burden of proving tolling, either through direct or circumstantial evidence, falls upon the parly asserting it.
Acosta-Qui-ñones v. Matos-Rodriguez,