Opinion
Civil No. 01-1242 (JAG)
April 24, 2002
Michelle Pirallo-Di Cristina, Esq., San Juan, PR, for Plaintiff's.
Manuel A. Guzmán-Rodríguez, Manuel A. Guzmán-Rodríguez Law Office, San Juan, PR, for Defendant's.
REPORT AND RECOMMENDATION
The Plaintiffs brought this diversity action against Ford Motor Company ("Ford") alleging product liability claims under Puerto Rico law arising out of a March 8, 1999, accident in which the Plaintiffs' Explorer rolled over after being struck by a Mitsubishi Nativa. This suit was filed on February 28, 2001, almost two years after the accident. The case is now pending before the Court on the defendant's motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Upon consideration of the pleadings, the motion, the plaintiffs' opposition and the replies thereto, the undersigned Magistrate recommends that the motion be granted.
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a defendant may move to dismiss a complaint on the ground that the plaintiff has failed to state a claim upon which relief may be granted. A Rule 12(b)(6) motion questions the legal sufficiency of the complaint; therefore, in assessing the merit of a Rule 12(b)(6) motion, the court must assume that all the factual allegations set forth in the Complaint are true. See, e.g., United States v. Gaubert, 499 U.S. 315, 327 (1991); Barrington Cove Ltd. Partnership v. Rhode Island Housing Mortgage Finance Corp., 246 F.3d 1, 4-5 (1st Cir. 2001). The Court need not, however, assume the truth of conclusory assertions or allegations contradicted by the plaintiffs own concessions. Barrington, 246 F.3d at 5. The dismissal of a complaint under Rule 12(b)(6) is appropriate where it appears beyond doubt that the plaintiff can prove no set of facts in support of the claims in the complaint. See id.
The defendant has moved to dismiss the complaint on grounds it is time-barred by Puerto Rico's one-year statute of limitations for tort actions, Article 1868(2) of the Puerto Rico Civil Code, P.R. Laws Ann. Tit. 31, § 5298(2). A United States District Court sitting in diversity jurisdiction must follow the substantive law of the state in which it sits. Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938);Ramos-Baez v. Bossolo-López, 240 F.3d 92, 93 (1st Cir. 2001). Puerto Rico law governs the substantive issues in this action, including the applicable statute of limitations. Guaranty Trust Co. v. York, 326 U.S. 99, 112 (1945); Torres v. E.I. Dupont De Nemours Co., 219 F.3d 13 (1st Cir. 2000). See also Lafont-Rivera v. Soler-Zapata, 984 F.2d 1, 2 (1st Cir. 1993); Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 353 (1st Cir. 1992).
A cause of action under article 1802 accrues, and the prescriptive period set by article 1868(2) therefore begins to run, "when the injured party knew or should have known of the injury and of the likely identity of the tortfeasor." Tokyo Marine Fire Ins. Co., Ltd. v. Perez Cia., De Puerto Rico, Inc., 142 F.3d 1, 3 (1st Cir. 1998), quoting Colón Prieto v. Geigel, 115 P.R. Dec. 232, 243, 1984 WL 270950 (1984).
Notice of the injury occurs when there "exists some outward or physical signs through which the aggrieved party may become aware and realize that he has suffered an injurious aftereffect, which when known becomes a damage even if at the time its full scope and extent cannot be weighed."Kaiser v. Armstrong World Indus., Inc., 872 F.2d 512, 516 (1st Cir. 1989), quoting Delgado Rodríguez v. Nazario de Ferrer, 21 P.R. Offic. Trans. 342, 356, 121 P.R. Dec. 347, 360 (Puerto Rico 1988); see also Torres, 219 F.3d at 18-19; Arnold v. Montilla, 13 F. Supp.2d 229, 232 (D. Puerto Rico 1998).
Once plaintiff is on notice of the injury, she may not "wait for [her] injury to reach its final degree of development and postpone the running of the period of limitation according to [her] subjective appraisal and judgment." Torres, 219 F.3d at 19, quoting Ortiz v. Municipio de Orocovis, 113 P.R. Dec. 484, 487 (Puerto Rico 1982). If plaintiff brings an action more than one year after the injury took place, "she bears the burden of proving that she lacked the requisite `knowledge' at the relevant times." Hodge v. Parke Davis Co., 833 F.2d 6, 7 (1st Cir. 1987), quoting Iluminada Rivera Encarnacion v. Estado Libre Asociado de P.R., 13 Offic. Trans. 498, 501, 113 P.R. Dec. 383, 385 (Puerto Rico 1982). See also Vázquez Morales v. Estado Libre Asociado De Puerto Rico, 967 F. Supp. 42, 46 (D. Puerto Rico 1997) "[S]elf-induced ignorance" does not interrupt the limitations period. Fragoso v. López, 991 F.2d 878, 886 (1st Cir. 1993), quoting Kaiser v. Armstrong World Indus., Inc., 872 F.2d 512, 516 (1st Cir. 1989).
It is clear from the face of the complaint that all of the plaintiffs' alleged injuries occurred and were known to plaintiffs on the date of the accident, March 8, 1999. Plaintiffs have alleged no facts that would toll the statute of limitations under Puerto Rico's restrictive tolling statute, 31 L.P.R.A. § 5303 (period of limitation may be tolled only by court action, an acknowledgment of debt by a debtor, or an extrajudicial claim). Plaintiffs' failure to file a Complaint until February 28, 2001, bars all claims raised in the Complaint.
In opposition to defendant's motion to dismiss, plaintiffs argue that they first discovered the Explorer was defective on August 9, 2000, from publicity that ensued from the Bridgestone/Firestone tire recall. To carry the burden of proving that she lacked the requisite "knowledge" within the statutory period this burden, plaintiff must establish that: (1) she did not have notice of the injury or knowledge of the person who caused the injury; and (2) that the reason for that lack of knowledge is not negligence or lack of care to acquire the necessary facts. Vázquez Morales, 967 F. Supp. at 46. If plaintiff fails to meet this burden, the statute of limitations will start to run on the day following the date of injury regardless of whether plaintiff has actual knowledge of the injury or the individual or entity that allegedly caused the injury. Id.
Plaintiffs cannot circumvent Puerto Rico's one-year statute of limitations by arguing that they were unaware of alleged product defects or potential causes of action against Ford until August 2000. Plaintiffs knew of the accident and their injuries on the day of the accident, March 8, 1999. In addition, they knew that the Explorer was manufactured by Ford and that the rollover accident caused their injuries.
Plaintiffs' knowledge in August 2000 of the Firestone recall and the surrounding publicity regarding the Ford Explorer is irrelevant. As the First Circuit Court of Appeals has explained, time does not stand still until the plaintiff has acquired additional information rising to a level of legal certainty as to whom she should sue. It is enough that the plaintiff knew of the injury and the likely identity of the person to sue. Torres, 219 F.3d at 18-19 (citations omitted). See alsoRodríguez-Suris v. Montesinos, 123 F.3d 10, 16 (1st Cir. 1997) ("Once a plaintiff is made aware of facts sufficient to put her on notice that she has a potential tort claim, she must pursue that claim with reasonable diligence, or risk being held to have relinquished her right to pursue it, after the limitation period has run").
The key issue is whether plaintiffs could have timely acquired knowledge of their potential roll-over claim against Ford by the exercise of reasonable diligence, not whether they later acquired information that made their claim more probable or raised their suspicion of whom to sue to a legal certainty. See Torres, 219 F.3d at 22 ("whether or not appellants received notice that Benlate was being recalled in 1992 or that the first Benlate claim was filed in 1991 is irrelevant. Once appellants were put on notice of a potential legal cause of action, the statute of limitations began to run"). Thus, plaintiffs' claims against the defendant expired one year after the March 8, 1999, accident, long before the Bridgestone/Firestone tire recall.
Plaintiffs accident occurred while both vehicles were traveling at a speed of 10 or 15 miles per hour. At the time of their injury plaintiffs' knew that their damages were either caused by (1) the negligence of the driver of the Mitsubishi Nativa, (2) the claimed rollover characteristics of the Ford Explorer, or both. Should the plaintiffs have embarked in even a rudimentary inquiry on the cause of their damages, they would have become aware of the easily accessible data in the public domain from judicial governmental and media sources, concerning the design characteristics of sport utility vehicles in general, and Ford Explorers in particular, that existed prior to and after their accident. The fact that this controversy was foreign to the plaintiffs demonstrates that they undertook no reasonable inquiry to avail themselves of the necessary facts of their case before the limitations statute expired.
Plaintiffs also submit in opposition to defendant's motion to dismiss that the limitations period was tolled because Ford concealed known defects in the Explorer from the public. However, a claim of concealment of a known defect will not toll the statute of limitations where the plaintiff plainly knew of the injury and the likely identity of the person to sue. See Torres, 219 F.3d at 18-19. Furthermore, plaintiffs failed to plead in the Complaint (1) any affirmative claim that Ford made assurances or representations to the plaintiffs after the accident to assuage the plaintiffs; and (2) that plaintiffs relied on these assurances or representations to their detriment by delaying to prosecute their claims. C.f. Rodríguez Surís, 123 F.3d at 15-18 (recognizing that "final judgment for the defendant on the ground of late filing is appropriate unless plaintiff has proffered evidence sufficient to support a finding that representations and assurances by the defendant persuaded plaintiff to rely reasonably and delay institution of a civil action"). Thus, plaintiffs' general and conclusory assertions in their opposition that Ford concealed known defects in the Explorer is insufficient as a mailer of law to toll the statute of limitations. SeeTorres, supra; Rodríguez Surís, 123 F.3d at 15-18.
This Court cannot ignore the plain statutory language of 31 L.P.R.A. § 5298(2). It is the RECOMMENDATION of the Magistrate Judge that the motion to dismiss filed by the defendant be granted and that the Complaint be dismissed.
IT IS SO RECOMMENDED.
The parties have ten (10) days to file any objections to this report and recommendation. Failure to file same within the specified time waives the right to appeal this order. Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir. 1994); United States v. Valencia, 792 F.2d 4 (1st Cir. 1986).