March 19, 2015 – Kimberly Montano v. Eldo Frezza, M.D. and Lovelace Insurance Company, a Domestic For-Profit Corporation, No. 32,403

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 	_______________
Filing Date: 	March 19, 2015
NO. 32,403
KIMBERLY MONTAÑO,
Plaintiff-Appellee,
v.
ELDO FREZZA, M.D.,
Defendant-Appellant,
and
LOVELACE INSURANCE COMPANY,
a domestic For-Profit Corporation,
Defendant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
C. Shannon Bacon, District Judge
Jones, Snead, Wertheim & Clifford, P.A.
Jerry Todd Wertheim
Roxie De Santiago
Samuel C. Wolf
Elizabeth C. Clifford
Santa Fe, NM
for Appellee

Hinkle, Hensley, Shanor & Martin, LLP
William P. Slattery
Dana S. Hardy
Zachary T. Taylor
Santa Fe, NM
for Appellant
Rodey, Dickason, Sloan, Akin & Robb PA
Nelson Franse
Brian Brack
Albuquerque, NM
for Lovelace Insurance Company

OPINION
BUSTAMANTE, Judge.
{1} 	This case is one of three presently before the Court of Appeals that involve the
asserted medical negligence of then Texas-based physician Dr. Eldo Frezza. 	See
Gonzales v. Frezza, COA No. 32,606, and Gallegos v. Frezza, COA No. 32,605. The
issue presented in this case is whether Dr. Frezza should enjoy the immunity granted
by the Texas Tort Claims Act (TTCA) when he is sued by a New Mexico resident in
a New Mexico court. 	We conclude that under principles of comity Dr. Frezza is
entitled to immunity, but only so far as that immunity is consistent with the New
Mexico Tort Claims Act (NMTCA). We also conclude that the district court’s order
was too broadly worded. 	Hence, we affirm in part and vacate in part the district
court’s ruling and remand for further proceedings.
BACKGROUND
{2} 	Like the plaintiffs in the other two cases, Ms. Montaño, a New Mexico resident,
traveled to Lubbock, Texas to undergo bariatric surgery by Dr. Frezza at the Texas
Tech University Health Sciences Center (the Center). Ms. Montaño had been told by
her insurer, Lovelace Insurance Company (Lovelace), that Dr. Frezza was the only
bariatric surgeon for whom it would provide coverage. For approximately six years,
Ms. Montaño traveled to Lubbock for follow-up care and treatment by Dr. Frezza for

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complications arising from the surgery. Eventually, testing by another doctor revealed
gastrointestinal bleeding caused by an “eroding permanent suture.” 	That doctor
performed corrective surgery.
{3} 	At all times relevant to this case, Dr. Frezza was an employee of the Center,
which is a governmental unit of the state of Texas. See Tex. Tech Univ. Health Scis.
Ctr. v. Ward, 280 S.W.3d 345, 348 (Tex. App. 2008) (stating that the center is a
governmental unit). The Center established Texas Tech Physician Associates (TTPA)
to administer managed care contracts for its physicians, including the contract with
Lovelace. 	Although not a party to the contract, Dr. Frezza was a “represented
physician” subject to the terms of the contract. Additional facts are included in our
discussion.
{4} 	Ms. Montaño filed suit against Dr. Frezza and Lovelace, alleging breach of
contract and negligent referral by Lovelace, medical negligence by Dr. Frezza,
violation of the New Mexico Unfair Practices Act by both Dr. Frezza and Lovelace,
and lack of informed consent. 	Dr. Frezza filed two motions for dismissal. 	One
motion asserted that New Mexico did not have personal jurisdiction over him. In the
other he argued that as a Texas public employee he was immune from suit under the
TTCA. See Rule 1-012(B)(2), (6) NMRA. The district court determined that New
Mexico law, not the TTCA, should be applied. The district court also concluded that
Dr. Frezza had sufficient contacts with New Mexico such that New Mexico courts

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court assert personal jurisdiction over him. 	The district court then denied both
motions. Dr. Frezza filed a motion to reconsider the denial of his motion to dismiss
based on personal jurisdiction. The motion to reconsider is still pending below.
{5} 	Dr. Frezza petitioned this Court for a writ of error under the collateral order
doctrine, arguing that the district court erred in concluding that New Mexico law
applied. See Rule 12-503 NMRA. The petition, which addresses only this issue, was
granted.
DISCUSSION
A. 	The Petition for Writ of Error was Appropriately Granted
{6} 	We begin by addressing whether the district court’s decision to apply New
Mexico law is appropriate for appellate review under the collateral order doctrine.
Generally, appeal lies only from a “final judgment or decision, any interlocutory order
or decision which practically disposes of the merits of the action, or any final order
after entry of judgment which affects substantial rights[.]” 	NMSA 1978, § 39-3-2
(1966). 	“The principle of finality [evinced in this statute] serves a multitude of
purposes, including the prevention of piecemeal appeals and the promotion of judicial
economy.” 	Handmaker v. Henney, 1999-NMSC-043, ¶ 7, 128 N.M. 328, 992 P.2d
879. 	An exception to this preference for finality is known as the collateral order
doctrine, “whose reach is limited to trial court orders affecting rights that will be
irretrievably lost in the absence of an immediate appeal.” Carrillo v. Rostro, 1992-

4
NMSC-054, ¶ 16, 114 N.M. 607, 845 P.2d 130 (internal quotation marks and citation
omitted). To permit review under the doctrine, “(1) the order must finally determine
the disputed question; (2) it must concern an issue that is entirely separate from the
merits of the claim; and (3) there must be no effective remedy by appeal.”
Handmaker, 1999-NMSC-043, ¶ 9.
{7} 	Our cases have held that where an order addresses a party’s immunity from suit,
as opposed to immunity from liability, it satisfies the collateral order doctrine criteria.
See Campos de Suenos, Ltd. v. Cnty. of Bernalillo, 2001-NMCA-043, ¶ 15, 130 N.M.
563, 28 P.3d 1104 (stating, “We issue writs of error to review immunity from suit
cases because we consider them collateral order[s] affecting interests that would be
irretrievably lost if the case proceeded to trial.” (alteration in original) (internal
quotation marks and citation omitted)); accord Handmaker, 1999-NMSC-043, ¶ 14;
Carrillo, 1992-NMSC-054, ¶ 20; Sugg v. Albuquerque Pub. Sch. Dist., 1999-NMCA-
111, ¶ 8, 128 N.M. 1, 988 P.2d 311; cf. Carmona v. Hagerman Irrigation Co., 1998-
NMSC-007, ¶ 21, n.5, 125 N.M. 59, 957 P.2d 44 (“The [NMTCA] provides immunity
from liability, not absolute immunity from suit, so the collateral order exception to the
finality of judgments rule would not apply in this case.”).
{8} 	To the extent that Ms. Montaño argues that the writ of error was improvidently
granted because the collateral order doctrine criteria were not satisfied, we disagree.
Ms. Montaño contends that the real question before the district court depended on the

5
nature of TTPA’s contract with Lovelace and thus the district court’s order (1) did not
resolve the question, and (2) was dependent on the merits of the case. 	But the
question before the district court was a basic one: whether New Mexico or Texas law
should apply. As will be seen in our discussion below, the answer to this question
does not involve detailed examination of the facts related to Dr. Frezza’s practice.
Application of Texas law here would result in dismissal of Ms. Montaño’s suit against
Dr. Frezza because the TTCA does not permit suits against government employees
acting within their employment. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f)
(West 2013). Because the choice of law encompasses whether Dr. Frezza is immune
from suit, the decision necessarily implicates a right that would be “irretrievably lost”
if not heard by this Court. See Campos de Suenos, Ltd., 2001-NMCA-043, ¶ 15. We
conclude that the district court’s order is properly before us for review.
B. 	New Mexico Law Applies
{9} 	We turn to whether the district court properly analyzed whether New Mexico
or Texas law governs Ms. Montaño’s suit. In doing so, we “review the district court’s
decision to use a comity analysis de novo, and then review a district court’s
application of comity for abuse of discretion.” 	Sam v. Sam, 2006-NMSC-022, ¶ 9,
139 N.M. 474, 134 P.3d 761. 	Dr. Frezza does not challenge the district court’s
decision to embark on its comity analysis. 	Thus, as to the comity issue, we only
determine whether the district court’s decision exceeded the bounds of its discretion.

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We begin, however, by addressing the “place-of-the-wrong” rule, and then address
whether the district court properly analyzed whether Texas law should apply under
principles of comity.
{10} 	Although some states have adopted the “most significant relationship” approach
to the choice of law, the New Mexico Supreme Court has continued to endorse the
“place-of-the-wrong” rule in choice of law cases. Terrazas v. Garland & Loman, Inc.,
2006-NMCA-111, ¶¶ 12, 14, 140 N.M. 293, 142 P.3d 374 (stating that “New Mexico
courts have steadfastly applied the lex loci delicti rule in tort cases”); see Restatement
(Second) of Conflict of Laws § 6 (1971); 15A C.J.S. Conflict of Laws § 38 (2014).
Under this rule, “the substantive rights of the parties are governed by the law of the
place where the wrong occurred.” Terrazas, 2006-NMCA-111, ¶ 12. “The place of
the wrong . . . is the location of the last act necessary to complete the injury.” Torres
v. State, 1995-NMSC-025, ¶ 13, 119 N.M. 609, 894 P.2d 386 (internal quotation
marks and citation omitted).
{11} 	But the place-of-the-wrong rule may give way when policy considerations
outweigh its application. 	See In re Estate of Gilmore, 1997-NMCA-103, ¶ 18, 124
N.M. 119, 946 P.2d 1130 (“[P]olicy considerations may override the place-of-the-
wrong rule.”). For instance, in Torres, the New Mexico Supreme Court held that New
Mexico law should apply where the alleged negligence of the Albuquerque Police
Department resulted in a death in California because “public policy dictates that New

1The special concurrence takes issue with our discussion of and approval of the
district court’s application of the place-of-the-wrong rule. We disagree that it was
error for the district court to begin with this analysis. 	In Sam, the Supreme Court
stated that appellate courts should “review the district court’s decision to use a comity
analysis de novo” and that this review assesses “the appropriateness of a district
court’s decision to engage in a comity analysis.” 	2006-NMSC-022, ¶¶ 9, 12. This
7
Mexico law determine the existence of duties and immunities on the part of New
Mexico officials.” 1995-NMSC-025, ¶ 14 (alteration, internal quotation marks, and
citation omitted). Similarly, in Sam, the New Mexico Supreme Court reversed the
Court of Appeals, which had relied on the place-of-the-wrong rule to conclude that
New Mexico law should apply where the plaintiff sued an Arizona governmental unit
over an accident that occurred in New Mexico. 2006-NMSC-022, ¶¶ 1, 6, 29. The
general rule derived from these cases is that “we begin with a strong presumption in
favor of application of the place-of-the-wrong rule, but we will not close our eyes to
compelling policy arguments for departure from the general rule in specific
circumstances.” In re Estate of Gilmore, 1997-NMCA-103, ¶ 21.
{12} 	The district court determined that “New Mexico is the location of the last act
necessary to complete the injury because [Ms. Montaño’s] injuries manifested
themselves in New Mexico.” Based on its decision that the injury manifested itself
in New Mexico, the district court concluded that “New Mexico law applies” to the
case. We perceive no error in the district court’s Restatement-based place-of-the-
wrong analysis.1 See Torres, 1995-NMSC-025, ¶ 13; Roberts v. Piper Aircraft Corp.,

language suggests that the decision to engage in the comity analysis itself depends on
a prior legal conclusion that it is necessary. If the place-of-the-wrong rule indicated
that Texas law applied, there would have been no need to proceed to a comity
analysis. Thus, if the question could have been resolved by relying on an established
set of legal principles not requiring a detailed policy analysis, it was not error for the
district court to begin with that tack.
8
1983-NMCA-110, ¶ 9, 100 N.M. 363, 670 P.2d 974; Beh v. Ostergard, 657 F. Supp.
173, 175-76 (D.N.M. 1987).
{13} 	However, the outcome of the place-of-the-wrong analysis does not end the
matter. 	The district court understood this. 	Recognizing that Dr. Frezza was an
employee of the State of Texas and potentially immune from suit under Texas’s
TTCA, the district court went on to conduct an analysis of whether it should apply
Texas law as a matter of comity. 	The presence of a defendant who can colorably
assert his status as a Texas state actor entitled to the protection of Texas’s sovereignty
as expressed in the TTCA required the district court—and requires us—to engage in
a comity analysis. 	In this circumstance, the comity analysis all but displaces the
place-of-the-wrong analysis in resolving the issues before us. Thus, we move on to
comity.
{14} 	The concept of comity as a tool for deciding choice-of-law issues in the United
States has a long history, most of which is not necessary to recount here. 	See
generally Holly Sprague, Choice of Law: A Fond Farewell to Comity and Public

9
Policy, 74 Calif. L. Rev. 1447, 1449-50 (1986). We do note that comity concerns play
a role in the Restatement (Second) formulation of a conflict-of-law analysis. 	See
Restatement (Second) of Conflict of Laws § 6 (1971). The role of comity in actions
against states or their employees in the courts of their sister states, however, was
unexplained and unclear until the Supreme Court’s opinion in Nevada v. Hall, 440
U.S. 410 (1979).
{15} 	In Hall, a California resident sued the University of Nevada in the California
courts for injuries he suffered in an auto collision that occurred in California. The
California courts accepted jurisdiction of the case, and after a verdict was entered,
refused to honor the statutory damages limit set by Nevada law for actions against
Nevada governmental entities. 	Id. at 412-13. 	Hall held, as a matter of first
impression, that there was nothing in the federal constitution preventing a state from
being sued in another state, assuming personal and subject matter jurisdiction was
otherwise appropriate. The Court held that nothing “in Art. III authorizing the judicial
power of the United States, or in the Eleventh Amendment limitation on that power,
provide any basis, explicit or implicit, for this Court to impose limits on the powers
of California exercised in this case.” 	Id. at 421. The Court also held that the “Full
Faith and Credit Clause does not require a [s]tate to apply another [s]tate’s law in
violation of its own legitimate public policy.“ Id. at 422. Finally, the Court ruled that
no other provision of the Constitution—including the Commerce Clause, the

10
Extradition Clause, and the Privileges and Immunities Clause—supported any
conclusion other than that “one [s]tate’s immunity from suit in the courts of another
[s]tate is [nothing] other than a matter of comity.” 	Id. at 425. The Supreme Court
provided no guidance in Hall as to how the states could or should exercise this comity.
{16} 	The Supreme Court again visited the issue of interstate immunity in the case of
Franchise Tax Board of California v. Hyatt, 538 U.S. 488 (2003). In Hyatt, a Nevada
resident sued a California tax collection agency in Nevada for damages, asserting both
negligent and intentional torts. The trial court denied the California agency’s motion
to dismiss for lack of subject matter jurisdiction. The Nevada Supreme Court reversed
in part, holding that the theories sounding in negligence should have been dismissed
under comity principles, but concluding that the intentional tort claims could proceed
to trial. 538 U.S. at 492. The Nevada Supreme Court acknowledged that California
had granted its agency complete immunity from suit. 	Nevertheless, noting that
Nevada does not provide immunity for acts taken in bad faith or for intentional torts,
the Nevada Supreme Court held that “Nevada’s interest in protecting its citizens from
injurious intentional torts . . . committed by sister states’ government employees
should be accorded greater weight than California’s policy favoring complete
immunity for its taxation agency.” 538 U.S. at 493-94 (internal quotation marks and
citation omitted).

11
{17} 	In a unanimous opinion, the Supreme Court affirmed its holding in Hall that the
“Constitution does not confer sovereign immunity on [s]tates in the courts of sister
[s]tates.” Hyatt, 538 U.S. at 497. The Supreme Court also affirmed and strengthened
its prior ruling that the Full Faith and Credit Clause does not require Nevada to honor
California’s statute, noting that:
There is no principled distinction between Nevada’s interests in tort
claims arising out of its university employee’s automobile accident, at
issue in Hall, and California’s interests in the tort claims here arising out
of its tax collection agency’s residency audit.
Hyatt, 538 U.S. at 498.
{18} 	As in Hall, the Supreme Court in Hyatt provided no guidance as to how the
states should apply comity principles when resolving suits against sister states. It did
observe that it saw no “policy of hostility” toward California by Nevada. See Hyatt,
538 U.S. at 499. 	Rather, it noted, Nevada had “sensitively applied principles of
comity with a healthy regard for California’s sovereign status, relying on the contours
of Nevada’s own sovereign immunity from suit as a benchmark for its analysis.” Id.
{19} 	Abstract descriptions of “comity” are as varied as the opinions applying them.
In Hyatt, for example, the Nevada Supreme Court phrased the principle as “an
accommodation policy, under which the courts of one state voluntarily give effect to
the laws and judicial decisions of another state out of deference and respect, to
promote harmonious interstate relations[.]” 538 U.S. at 493 (internal quotation marks

12
and citation omitted). 	Closer to the case at hand, a Texas court described it as “a
principle under which the courts of one state give effect to the laws of another state
or extend immunity to a sister sovereign, not as a rule of law, but rather out of
deference or respect. It is a doctrine grounded in cooperation and mutuality.” State
of N.M. v. Caudle, 108 S.W.3d 319, 321 (Tex. App. 2002) (citation omitted)).
{20} 	Even closer to home, in Sam, our Supreme Court described comity as “a
principle whereby a sovereign forum state recognizes and applies the laws of another
state sued in the forum state’s courts. 	The sovereign forum state has discretion
whether or not to apply the laws of the other state.” 2006-NMSC-022, ¶ 8. These
formulations emphasize the core concerns of comity—mutual respect and harmonious
relationships while protecting the forum state’s own policy choices—but they provide
no specific guideposts to follow as the comity decision is made.
{21} 	In Sam, our Supreme Court did provide guideposts. 	First, the Court set the
stage by noting that comity should be extended to other states but only if doing so will
not violate or undermine New Mexico’s own important public policies. Id. ¶¶ 13, 21.
Sam 	then 	suggested 	four 	factors 	our 	courts 	should 	take 	into 	account 	when
“determining whether extending immunity through comity would violate [New
Mexico’s] public policy.” 	Id. ¶ 22. 	In determining whether to extend immunity,
courts should consider: “(1) whether the forum state would enjoy similar immunity
under similar circumstances, (2) whether the state sued has or is likely to extend

13
immunity to other states, (3) whether the forum state has a strong interest in litigating
the case, and (4) whether extending immunity would prevent forum shopping[.]” Id.
(citations omitted).
{22} 	Unfortunately Sam does not provide any indication how the four factors should
be weighed as between themselves. And, more importantly, Sam does not provide
explicit guidance as to how or when courts should fold in the comparative public
policy analysis which is central to deciding whether honoring the state’s immunity law
improperly contravenes our own public policy choices. It is not clear whether that
discussion must be had within the parameters of each factor or whether it is more
appropriately conducted separately and used as a bright backdrop when assessing the
impact of the four factors.
{23} 	Thus, we confess some confusion as to how Sam should be applied. We also
perceive some confusion in the district court about the matter. As a drafting solution,
we will deal with each factor on its terms, comparing and contrasting Texas and New
Mexico law as appropriate, but we will also separately sum up the public policy
implications of the factors and the differences in the two states’ laws.
{24} 	We first examine the district court’s assessment of the four Sam factors for an
abuse of discretion. See id. ¶ 9. As to the first factor, the district court found that “it
is unlikely the State of Texas would extend immunity to the State of New Mexico
under similar circumstances[.]” This is not a correct formulation of the first factor.

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This factor was derived from Head v. Platte County, Missouri, 749 P.2d 6 (Kan.
1988), in which the Kansas Supreme Court considered whether to apply Missouri law
in a suit between a Kansas resident and a Missouri county. 	Id. at 7, 10. The court
concluded that application of Missouri law would afford Missouri defendants greater
protections than Kansas provided to its own citizens. Id. at 10. It stated, “If Missouri
has sovereign immunity within our borders, a Kansas resident would be denied all
recovery for injury caused by Missouri agents in this state, even though if agents of
the State of Kansas had committed the same act, recovery could be permitted under
our [t]ort [c]laims [a]ct.” Id. (McFarland, J., dissenting); accord Morrison v. Budget
Rent A Car Sys., 230 A.D.2d 253, 268 (N.Y. App. Div. 1997). Similarly, the Sam
court’s analysis under the first factor addressed whether “a similar action brought
against a New Mexico entity or government employee would be barred by the . . .
[NMTCA].” 2006-NMSC-022, ¶ 23. Thus, in the context of this case, the first factor
should be stated as follows: 	would a similar action against a New Mexico
governmental entity or employee be barred by the NMTCA? 	The answer to this
question is clearly “no” because, as we discuss in more detail below, contrary to the
TTCA, the NMTCA permits suits against government employees. In addition, as we
explain below, the TTCA’s strict occurrence-based notice of claim provision would
clearly preclude Ms. Montaño’s action, whereas the NMTCA notice provision allows

15
for discovery-based calculation of time. 	We view both of these provisions as
important aspects of New Mexico immunity law that merit protection.
{25} 	Thus, although for different reasons, we agree with the district court that this
factor weighs against enforcing the TTCA. See In re Clark’s Will, 1955-NMSC-063,
¶ 7, 59 N.M. 433, 285 P.2d 795 (stating that comity does not require “the courts of this
state to extend to a citizen of another state a right or privilege that would not be
extended to one of our own citizens in a matter of this kind”).
{26} 	The second factor is whether Texas has or will extend immunity to New
Mexico. Sam, 2006-NMSC-022, ¶ 22. Dr. Frezza relies on Caudle in support of his
argument that the second factor weighs in favor of extending immunity. The district
court found that Caudle “has limited application in the context of this matter[.]” We
agree. In Caudle, Texas residents employed by the State of New Mexico alleged in
a Texas court that their retirement plan provided by the State of New Mexico
“violate[d] the . . . Texas Constitution and . . . the Fourteenth Amendment to the
United States Constitution.” 108 S.W.3d at 321. The Texas Court of Appeals began
by stating that “Texas should extend comity by recognizing the laws and judicial
decisions of other states unless (1) the foreign state declines to extend comity to Texas
or sister states under the same or similar circumstances, or (2) the foreign statute
produces a result in violation of Texas’[s] own legitimate public policy.” 	Id. 	It
concluded that since New Mexico had “extended comity to its sister states[,]” it would

16
consider New Mexico a “cooperative jurisdiction.” Id. It then determined that since
it is the responsibility of each state to determine the constitutionality of its own
statutes, “[i]t is . . . good public policy for Texas to avoid scrutinizing its sister states’
statutes to determine their constitutionality under either the United States Constitution
or the Texas Constitution.” 	Id. at 322. The court consequently ordered the matter
dismissed. Id.
{27} 	Caudle is not dispositive of the second comity factor for two reasons. First,
under Dr. Frezza’s reasoning, Texas’s determination to extend comity in one case
would mean that it would have no reason to analyze whether to apply comity in any
other contexts. In other words, the first case extending comity to New Mexico would
settle the issue forever. But since the Texas courts have analyzed whether to apply
comity in cases both before and after Caudle, this is clearly not the course Texas has
taken. See, e.g., Robertson v. Estate of McKnight, 609 S.W.2d 534, 537 (Tex. 1980)
(applying New Mexico law on interspousal immunity); N.M. State Univ. v. Winfrey,
No. 11-10-00213-CV, 2011 WL 3557239, at *2 (Tex. App. Aug. 11, 2011)
(comparing the jurisdiction and venue provisions of the NMTCA and the TTCA and
applying the NMTCA). Nor does such an approach comport with the Sam court’s
characterization of the comity analysis as “fact-intensive,” indicating that the factors
must be examined in the context of the circumstances of each case. 2006-NMSC-022,
¶ 12; see City of Raton v. Ark. River Power Auth., 611 F. Supp. 2d 1190, 1212

2Winfrey is not reported in South Western Reporter 3d. 	According to the
commentary associated with Texas Rules of Appellate Procedure 47.2 and 47.7,
however, “[a]ll opinions and memorandum opinions in civil cases issued after the
2003 amendment [to the rules] have precedential value.” Id. (notes and comments).
Hence, we consider Winfrey as a precedential opinion of the Texas Court of Appeals.
17
(D.N.M. 2008) (discussing the Sam holding and concluding that a “case-by-case
approach to the comity analysis” is required). Second, the policy interest served by
dismissal of the Caudle matter—that New Mexico courts should interpret the
constitutionality of New Mexico’s statutes—is entirely different from the policies at
play here. See 108 S.W.3d at 322.
{28} 	Winfrey,2 which is not cited by either party and was not considered by the
district court, provides more compelling support for Dr. Frezza’s position than
Caudle. 	In Winfrey, the Texas Court of Appeals considered whether to apply the
NMTCA as a matter of comity where a Texas resident sued New Mexico State
University (NMSU) for damage done to his sheep when a weather balloon owned or
operated by NMSU fell on his land in Texas. 	2011 WL 3557239, at *1. 	NMSU
moved for dismissal based on a lack of jurisdiction, which the district court denied.
Id. The court of appeals started its analysis by reiterating the two-part test for comity
set out in Caudle, stating that “comity . . . will be applied to a cooperating state so
long as the law of that state does not offend Texas public policy.” Winfrey, 2011 WL
3557239, at *1. After determining that New Mexico was a cooperating state, the court

18
examined the purpose of the NMTCA and TTCA and their provisions related to
jurisdiction and venue. Id. at *1-2. It concluded, “Our comparison of the[se] similar
provisions leads to the conclusion that [NMSU has] satisfied the second prong of the
principle of comity: 	the jurisdiction and venue provisions of the [NMTCA], as
applicable in this case, do not violate the public policy of Texas.” 	Id. 	The court
concluded, therefore, that it should apply the NMTCA and that since the NMTCA (1)
vested exclusive jurisdiction in the New Mexico district courts and (2) required that
the suit be brought in Santa Fe County, the suit should be dismissed “for lack of
jurisdiction.” Id. at *1, 2 (internal quotation marks omitted); see NMSA 1978, § 41-4-
18(B) (1976) (“Venue for any claim against the state or its public employees, pursuant
to the Tort Claims Act, shall be in the district court for the county in which a plaintiff
resides, or in which the cause of action arose, or in Santa Fe county.”).
{29} 	Although Texas applied New Mexico law on jurisdiction and venue in Winfrey,
the Winfrey holding does not compel us to conclude that Texas would apply the
NMTCA’s other provisions under the circumstances of this case. The Winfrey court’s
analysis was based on the similarity of the two acts’ venue and jurisdiction
requirements. Cf. Univ. of Iowa Press v. Urrea, 440 S.E.2d 203, 205 (Ga. Ct. App.
1993) (stating that where two statutes’ provisions were “conceptually identical” the
forum state “should recognize and give effect to the legislatively declared policy of
[the other state] as a matter of comity”). The court did not consider the portions of the

19
NMTCA and TTCA at issue in this case, which are very different. Consequently, it
is not clear whether Texas would extend immunity to New Mexico under the
circumstances here. But see Hawsey v. La. Dep’t of Soc. Servs., 934 S.W.2d 723, 727
(Tex. App. 1996) (affirming dismissal of an action under Louisiana law and stating,
“Louisiana’s waiver of sovereign immunity is more extensive than that of Texas, yet
we cannot say it violates our public policy”); Greenwell v. Davis, 180 S.W.3d 287,
298 (Tex. App. 2005) (“Even though the amounts of the waivers differ, applying
Arkansas’ limited waiver of sovereign immunity would not be contrary to Texas
public policy. The mere fact that the law of the other state differs from Texas does not
render it so contrary to Texas public policy that Texas courts will refuse to enforce it.”
(footnote omitted)). 	Although neither Caudle nor Winfrey are conclusive on this
issue, we will assume without deciding that Texas would extend immunity to New
Mexico in a similar situation. 	See Hall, 440 U.S. at 425(stating that the Court has
“presumed that the [s]tates intended to adopt policies of broad comity toward one
another [based on] state policy”); Sam, 2006-NMSC-022, ¶ 16 (acknowledging the
presumption).
{30} 	We turn to the third factor: “whether the forum state has a strong interest in
litigating the case[.]” Sam, 2006-NMSC-022, ¶ 22. Although its interest is bounded
by the limits of the NMTCA, id. ¶ 25, “New Mexico has a particular interest in
providing compensation or access to the courts to residents of the state.” 	Id. ¶ 26.

20
Here, if Texas law applies, Ms. Montaño would be left without any recourse against
Dr. Frezza or his employer. This fact heightens New Mexico’s interest in providing
a forum. Cf. Flemma v. Halliburton Energy Servs., Inc., 2012-NMCA-009, ¶ 25, 269
P.3d 931 (“New Mexico courts will apply New Mexico law to automobile insurance
contracts that were formed in other states if innocent accident victims would be
otherwise unprotected.”), rev’d on other grounds, 2013-NMSC-022, 303 P.3d 814;
Levert v. Univ. of Ill. at Urbana/Champaign ex rel. Bd. of Trustees, 2002-2679, pp.
17-18 (La. App. 1 Cir. 9/26/03), 857 So. 2d 611, 622 (holding that “because [the]
plaintiffs/appellants have recourse to individually seek full redress of their claims in
[the sister state], [that state’s] sovereign immunity law does not violate Louisiana’s
public or judicial policies”). On the other hand, because Dr. Frezza is an employee
of the State of Texas, that state also has an interest in the case. Cf. Zavala v. El Paso
Cnty. Hosp. Dist., 2007-NMCA-149, ¶ 34, 143 N.M. 36, 172 P.3d 173 (stating, in the
context of a personal jurisdiction analysis, that because the defendant “[h]ospital [wa]s
not only located in Texas but . . . [was] also an entity of the government of the State
of Texas[, i]t [was] . . . clear that Texas has a substantially stronger sovereignty
interest [than New Mexico]”). Weighing these competing interests, we conclude that
the district court did not abuse its discretion in determining that “the State of New
Mexico has equal or greater interest in litigating this matter than does the State of
Texas[.]”

21
{31) 	The final factor is whether application of Texas law will prevent forum
shopping. Sam, 2006-NMSC-022, ¶ 22. Ms. Montaño conceded below that it would,
and the district court concluded that “forum shopping would be diminished by an
application of [Texas law].” 	See Newberry v. Ga. Dep’t of Indus. & Trade, 336
S.E.2d 464, 465 (S.C. 1985) (holding that refusal to apply the sued state’s law would
permit forum shopping). We discern no error in this conclusion by the district court.
{32} 	In sum, the first and third factors weigh against applying the TTCA, whereas
the second and fourth factors weigh in favor of it. 	Again, Sam does not provide
guidance on how these factors should be balanced against each other or whether one
factor should be weighed differently from the others. Conforming to Sam’s approach,
however, we start with the notion that New Mexico should recognize Dr. Frezza’s
immunity as expressed in the TTCA, unless doing so will violate substantial New
Mexico policy. Put another way, whether to apply the TTCA depends on the bedrock
question guiding the comity analysis: would application of Texas law in this case be
contrary to New Mexico’s public policies? See Sam, 2006-NMSC-022, ¶ 22; City of
Raton, 611 F. Supp. 2d at 1212 (“Rather than all-or-nothing, a court must assure that,
for each claim for which it applies another state’s sovereign immunity rules, the
application of the other state’s rules does not offend the state’s public policy in a
substantial way.”).

22
{33} 	We look to the NMTCA for an expression of our public policy as to tort claims
against governmental bodies. 	See Torres, 1995-NMSC-025, ¶ 10 (“[I]t is the
particular domain of the [L]egislature, as the voice of the people, to make public
policy.”). In a legislative declaration accompanying the NMTCA, “[t]he legislature
recognize[s] the inherently unfair and inequitable results which occur in the strict
application of the doctrine of sovereign immunity.” NMSA 1978, § 41-4-2(A) (1976).
It also recognizes that “the area within which the government has the power to act for
the public good is almost without limit, and therefore government should not have the
duty to do everything that might be done.” Id. In enacting the NMTCA, therefore,
“the [L]egislature expressed its intent to achieve balance between the public policy
supporting compensation of those injured by public employees and the public policy
militating in favor of limiting government liability.” 	Niederstadt v. Town of
Carrizozo, 2008-NMCA-053, ¶ 14, 143 N.M. 786, 182 P.3d 769.
{34} 	A comparison of the NMTCA and the TTCA reveals that the balance struck by
the New Mexico Legislature is substantively different from that struck by Texas
legislators. See NMSA 1978, §§ 41-4-1 to -30 (1976, as amended through 2013); Tex.
Civ. Prac. & Rem. Code Ann. §§ 101.002 to .109 (1985, as amended through 2013).
Both statutes address the extent to which each state has waived its sovereign
immunity. See § 41-4-2(A) (“[I]t is declared to be the public policy of New Mexico
that governmental entities and public employees shall only be liable within the

23
limitations of the [NMTCA].”); § 101.021. The NMTCA and TTCA are also similar
in that they provide for limits on recovery (although the limits are different), see § 41-
4-19 and § 101.023, and waive immunity for certain injuries arising from the
operation of “ ‘any motor vehicle, aircraft[,] or watercraft.’ ” Section 41-4-5; see §
101-021(1)(A).
{35} 	But there are stark differences between the statutes. For instance, the TTCA
waives sovereign immunity in only three limited cases: “(1) claims arising from the
operation or use of motor-driven vehicles or equipment; (2) claims caused by a
condition or use of tangible personal or real property; and (3) claims arising from
premises defects.” Paz v. Weir, 137 F. Supp. 2d 782, 820 (S.D. Tex. 2001); see §§
101.021, .022. In contrast, New Mexico has waived sovereign immunity for negligent
conduct in eight different categories, including medical facilities, health care
providers, law enforcement, public utilities, highways/streets, and airports, and does
not limit liability to incidents involving motor vehicles or personal or real property.
See §§ 41-4-5 to -12.
{36} 	The NMTCA and TTCA also differ dramatically in their provisions concerning
the liability of individual government employees. The TTCA does not allow actions
against employees in their individual or personal capacity. Under the TTCA, a suit
naming a government employee must be dismissed upon the employee’s motion,
unless the plaintiff files an amended complaint naming the appropriate governmental

24
unit instead of the employee within thirty days of the employee’s motion. Section
101.106(f). 	There is no such limitation on suits against public employees in the
NMTCA. 	See 	§ 41-4-4(A), (B) (addressing waiver of immunity for public
employees); Abalos v. Bernalillo Cnty. Dist. Attorney’s Office, 1987-NMCA-026, ¶
18, 105 N.M. 554, 734 P.2d 794 (“Each of the eight waivers listed in Sections 41-4-5
to -12 identifies public employees; it follows that one can sue the public employee and
the agency or entity for whom the public employee works.”).
{37} 	Finally, while both statutes have a notice requirement, the requirements
function very differently. In Texas, plaintiffs must file a notice within six months of
“the day that the incident giving rise to the claim occurred.” § 101.101(a). Failure to
do so results in dismissal. See Univ. of Tex. Health Sci. Ctr. at Houston v. McQueen,
431 S.W.3d 750, 754 (Tex. App. 2014) (“The failure to give notice under [S]ection
101.101 requires dismissal of a suit.”). 	This requirement functions as a statute of
repose: it cuts off claims six months after the negligent conduct, regardless of whether
the plaintiff’s injury had been discovered. See Putthoff v. Ancrum, 934 S.W.2d 164,
174 (Tex. App. 1996) (“[T]he discovery rule does not apply to claims made under the
[TTCA].”); Black’s Law Dictionary 1637 (10th ed. 2014) (defining “statute of repose”
as “[a] statute barring any suit that is brought after a specified time since the defendant
acted . . ., even if this period ends before the plaintiff has suffered a resulting injury”).

25
{38} 	In contrast, while the NMTCA requires notice “within ninety days after an
occurrence giving rise to a claim for which immunity has been waived under the
[NMTCA],” Section 41-4-16(A), New Mexico cases have applied the “discovery rule”
to the notice requirement. Under this rule, the time period for the notice requirement
to bring a medical malpractice case under the NMTCA begins to run only when “the
plaintiff knows or with reasonable diligence should have known of the injury and its
cause.” 	Maestas v. Zager, 2007-NMSC-003, ¶ 19, 141 N.M. 154, 152 P.3d 141;
Emery v. Univ. of N.M. Med. Ctr., 1981-NMCA-059, ¶ 29, 96 N.M. 144, 628 P.2d
1140 (extending the discovery rule to the NMTCA’s notice requirement), abrogated
on other grounds by Maestas, 2007-NMSC-003. 	Thus, the NMTCA’s notice
requirement is much more flexible than that in the TTCA. Cf. Timmons v. Univ. Med.
Ctr., 331 S.W.3d 840, 846, 848 (Tex. App. 2011) (recognizing that “the operation of
section 101.101 [when the plaintiff did not discover the injury until after six months
had passed] appears harsh and unfair”); Streetman v. Univ. of Tex. Health Sci. Ctr. at
San Antonio, 952 S.W.2d 53, 56 (Tex. App. 1997) (same); Univ. of Tex. Med. Branch
at Galveston v. Greenhouse, 889 S.W.2d 427, 430, 432 (Tex. App. 1994) (same).
{39} 	We conclude that applying the TTCA here would violate New Mexico public
policy by (1) contravening New Mexico’s broader waiver of immunity, (2) prohibiting
suits against individuals, and (3) imposing a notice requirement substantially more
restrictive than that in the NMTCA. 	See Sam, 2006-NMSC-022, ¶ 27 (stating that

26
“[t]o apply [another state’s shorter] statute of limitations would violate our own public
policy of allowing two years to file suit [under the NMTCA]”). There may also be
other ways the statutes differ substantially; we have not conducted an exhaustive
comparison of the two statutes. It is sufficient to hold that, to avoid infringing on the
public policy expressed in the NMTCA, the immunity extended to Dr. Frezza with
regard to the three areas discussed above should be coextensive with the immunity
enjoyed by New Mexico governmental agencies and employees. See id.
{40} 	This conclusion is consonant with Sam, in which the Court concluded that
comity principles required the extension of “a limited grant of immunity to Arizona”
where both states had passed similar tort claims acts but with different statutes of
limitation, and held that the NMTCA’s statute of limitations applied. Id. Similarly,
in Hyatt, the United States Supreme Court affirmed the Nevada Supreme Court’s
refusal to apply California law, which provided the Franchise Tax Board with
complete immunity, because Nevada law waived immunity for intentional torts. 538
U.S. at 493-94.
{41} 	As a general matter, it is appropriate to use the NMTCA to provide the
contours—or measure—of the immunity Dr. Frezza should enjoy in New Mexico
courts. Texas and its employees cannot and should not be treated as purely private
litigants for the simple and obvious reason that they are not. Employees of a sister
state acting within the scope of their employment do not become purely private

27
citizens when they cross state lines or when they are subjected to the jurisdiction of
the courts of another state. See City of Red Wing v. Ellsworth Cmty. Sch. Dist., 617
N.W.2d 602, 607 (Minn. Ct. App. 2000) (holding that it was appropriate to apply
Minnesota’s municipal tort liability laws as a measure of the extent of a Wisconsin
teacher’s monetary liability). Using the contours of the NMTCA levels the field and
assures that non-New Mexico actors are not provided greater protection than New
Mexico provides its employees and governmental agencies. See Head, 749 P.2d at 10;
In re Clark’s Will, 1955-NMSC-063, ¶ 7. Cf. Hansen v. Scott, 2004 ND 179, ¶ 11, 687
N.W.2d 247, 251 (“We hold the Texas defendants are immune from suit to the same
extent the State of North Dakota would grant immunity to its employees under North
Dakota law. Applying the same level of immunity does not compromise the public
policy of North Dakota.”); and cf. Ann Woolhandler, Interstate Sovereign Immunity,
2006 Sup. Ct. Rev. 249, 291 (stating that one approach employed in comity analyses
“involves ignoring defendant-state forum limitation provisions, notice and time limits,
and liability and damages limitations, and applying the forum’s law of state suability.”
(footnotes omitted)).
{42} 	In sum, we affirm the district court with one caveat: the district court’s order
seems to impose New Mexico law in toto on the proceedings. 	It is premature to
decide that the TTCA is fully displaced. We limit our holding to the three subjects

28
discussed in paragraphs 34-39 of this Opinion. The applicability of other provisions
of the NMTCA should be determined by the district court on remand.
CONCLUSION
{43} 	We affirm in part, vacate in part, and remand for proceedings consistent with
this Opinion.
{44} 	IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge
I CONCUR:
__________________________________
CYNTHIA A. FRY, Judge
JONATHAN B. SUTIN, Judge (concurring in part and dissenting in part).

29
SUTIN, Judge (concurring in part and dissenting in part).
{45} 	I concur in the majority’s resolution of the comity question. 	I respectfully
dissent in regard to the majority’s approbation given to the district court’s application
of the place-of-the-wrong rule.
A. 	INTRODUCTION: Dr. Frezza’s Points on Appeal
{46} 	Dr. Frezza’s points on appeal, aside from the writ of error issue, are that (1) the
place-of-the-wrong rule and public policy concerns require that Texas law apply to
Ms. Montaño’s claims, and (2) the doctrine of comity requires the application of
Texas law. The Texas law to which Dr. Frezza refers is the TTCA.
1. 	The Place-of-the-Wrong Point
{47} 	In his motion to dismiss, Dr. Frezza asserted that the TTCA applied under the
doctrine of comity because Texas was the place of the wrong. He indicates that the
district court determined that he was not entitled to immunity from suit under the
TTCA because, based on the place-of-the-wrong rule and on principles of comity,
New Mexico law applied. Dr. Frezza erroneously conflates two distinct doctrines.
Further, in arguing the place-of-the-wrong rule, Dr. Frezza relies on New Mexico
conflict-of-laws cases having nothing to do with the circumstance of competing
foreign state and forum state sovereign immunity laws and interests requiring a comity
analysis. See Torres, 1995-NMSC-025; Terrazas, 2006-NMCA-111; In re Estate of
Gilmore, 1997-NMCA-103.

30
{48} 	Ms. Montaño buys in to the confusing and erroneous application of the place-
of-the-wrong rule. She argues that the place of the wrong is New Mexico and that the
district court properly determined that the nexus of facts pled by her raised both a
question of choice of law (meaning selecting, pursuant to a conflict-of-laws analysis,
the law of one state over another pursuant to a place-of-the-wrong rule analysis) and
comity.
{49} 	Although they combine the application of the place-of-the-wrong rule with the
rule of lex loci delicti (lex loci), neither Dr. Frezza nor Ms. Montaño says what
particular New Mexico law was to be applied under the place-of-the-wrong rule as to
Dr. Frezza’s immunity defense. In ruling that the place-of-the-wrong rule applied,
that the place of the wrong was New Mexico, and that the law to be applied was New
Mexico law, the district court also failed to indicate what New Mexico law applied to
Dr. Frezza’s immunity defense.
2. 	The Comity Point
{50} 	Separately addressing comity, Dr. Frezza says that, in addition to the fact that
Texas is the place of the wrong, “principles of comity require the application of Texas
law[,]” namely, the immunity provided under the TTCA. 	He discusses solely the
TTCA and the NMTCA in the bout between the immunity provisions within
sovereigns’ tort claims acts. 	Dr. Frezza analyzes the four factors in Sam, 2006-
NMSC-022, ¶¶ 22-28. As to the state-interest factor, Dr. Frezza seems to again insert

31
the place-of-the-wrong and lex loci rules into the comity analysis when he argues that
“New Mexico’s interest is limited by virtue of the fact that all of the alleged negligent
acts occurred in Texas[,]” and thus that the TTCA applies under comity. 	Ms.
Montaño’s comity analysis, of course, ends with comity not extendable to Texas.
Following a Sam analysis, the district court denied Dr. Frezza’s motion to dismiss
insofar as it was based on his comity position that the TTCA applied.
B. 	DISCUSSION: Misplaced Application of the Place-of-the-Wrong Rule
1. 	Application of the Place-of-the-Wrong Rule—What Ifs?
{51} 	The choice-of-law, conflict-of-laws analysis path chosen by the district court
and the parties begged the unanswered question: When the determination is made that
New Mexico law applies, which New Mexico law is to be applied? If New Mexico
law on sovereign immunity is the law to be applied, that law would be the NMTCA.
If the NMTCA were to be applied, the question necessarily becomes, can the NMTCA
apply to claims against a physician for medical negligence when the physician is an
employee of a Texas governmental entity and is not an employee of a New Mexico
governmental entity?
{52} 	The answer to the foregoing question is that the NMTCA cannot be applied to
that physician. In particular, because Dr. Frezza is not employed by a New Mexico
governmental entity, the NMTCA cannot be applied to him. See § 41-4-3(B), (C), (F),
(H). 	The upshot is that, given that the NMTCA does not apply to Dr. Frezza and

32
barring the application of the TTCA, his existence as a medical malpractice defendant
in a New Mexico lawsuit is such that he would have no New Mexico immunity from
suit. Neither the parties nor the district court engaged in any such analysis.
{53} 	Questions arise: 	Were the district court to have determined that Texas law
instead of New Mexico law applied as to Dr. Frezza’s immunity defense and that the
TTCA applied, would this then have foreclosed any comity analysis? Would Torres
have been applicable to override on public policy grounds, the application of the
TTCA? See Torres, 1995-NMSC-025, ¶¶ 13-14 (holding that, in a choice-of-law and
conflict-of-laws, place-of-the-wrong analysis, based on New Mexico’s public policy,
New Mexico law would control notwithstanding that the place of the wrong was
California). 	Would a Torres override on public policy grounds be a decision
tantamount to a refusal to extend comity?
{54} 	It is noteworthy that in Sam our Supreme Court noted that this Court in Sam v.
Estate of Sam, 2004-NMCA-018, ¶ 15, 135 N.M. 101, 84 P.3d 1066, rev’d by 2006-
NMSC-022, employed a choice-of-law, place-of-the-wrong rule analysis. See Sam,
2006-NMSC-022, ¶ 7. Our Supreme Court in Sam appears to have purposely chosen
to disregard the place-of-the-wrong rule and to stick solely to comity, see id. ¶¶ 7-8,
although one might infer that, in reversing this Court, our Supreme Court was not
disregarding the place-of-the-wrong rule in the case, but was holding that the place-of-
the-wrong rule was not applicable. It is also noteworthy that, in Sam, the Supreme

33
Court also mentioned that this Court, in Sam, 2004-NMCA-018, ¶ 14, also determined
that the NMTCA was inapplicable “because [the plaintiff] was not employed by New
Mexico and was therefore not covered by [the NMTCA].” Sam, 2006-NMSC-022,
¶ 6. We have no indication whether the Supreme Court considered the significance
of this Court’s determination that the plaintiff in Sam was not employed by New
Mexico and not covered under the NMTCA.
2. 	Misapplied Place-of-the-Wrong Rule
{55} 	The foregoing questions and conundrums aside, the place-of-the-wrong rule had
no place in this comity case. None of the choice-of-law, conflict-of-laws, place-of-
the-wrong/lex loci rule New Mexico cases, including in particular, Gilmore, Terrazas,
and Torres, are comity cases. 	As well, and notably, neither our Supreme Court in
Sam, nor the United States Supreme Court in Hyatt and Hall, on which Sam relied,
engage in a place-of-the-wrong or lex loci analysis. See Hyatt, 538 U.S. 488; Hall,
440 U.S. 410. It was error for the district court to rely on and apply the place-of-the-
wrong and lex loci rules in regard to the immunity defense issue in this case. 	I
therefore disagree with the majority’s “perceiv[ing] no error in the district court’s . . .
place-of-the-wrong analysis[,]” see Majority Op. ¶ 12, which brings me to Sam and
comity, and also to the majority’s opinion on comity in the present case.
C. 	DISCUSSION: Sam

34
{56} 	Sam involved the issue whether New Mexico claimants suing an Arizona
government employee in New Mexico were barred by the Arizona Tort Claims Act’s
one-year statute of limitations, the NMTCA’s two-year statute of limitations, or New
Mexico’s three-year general statute of limitations for tort actions. Sam, 2006-NMSC-
022, ¶ 7; Sam, 2004-NMCA-018, ¶¶ 13-15 (setting out the three statutes of
limitations). The action was filed just before three years had run. Sam, 2006-NMSC-
022, ¶ 3.
{57} 	On appeal from the district court decision in Sam, this Court determined that
the NMTCA did not apply to an Arizona government employee. Sam, 2004-NMCA-
018, ¶ 13. Citing Hyatt and Hall, we held that “New Mexico, as the forum state in this
case, is not required to recognize Arizona’s statute of limitations attaching or the
sovereign immunity granted to its public employees.” Sam, 2004-NMCA-018, ¶ 13.
We further held that the NMTCA was inapplicable because the plaintiff “was not a
public employee covered under our Tort Claims Act.” 	Id. ¶ 14. 	Declaring that
sovereign immunity and public employment were irrelevant to the issues in the case,
this Court turned to the place-of-the-wrong rule as applied in Torres and held that
“because the accident resulting in [the victim’s] death occurred in New Mexico, New
Mexico’s three-year statute of limitations [in NMSA 1978, Section 37-1-8 (1976)]
applies to this suit.” 	Sam, 2004-NMCA-018, ¶ 15. In a certiorari proceeding, our

35
Supreme Court saw the case differently and reversed this Court. Sam, 2006-NMSC-
022, ¶¶ 1, 20.
{58} 	The issue before our Supreme Court in Sam was whether the New Mexico
district court should, as a matter of comity, recognize the sovereign immunity of a
sister state, Arizona. Id. ¶ 1. 	Sam stated at the outset that it would discuss “what
factors a New Mexico court should consider to determine if comity should be
extended.” 	Id. ¶ 8. 	Sam analyzed Hall and stated that the difference between
California and Nevada law as to a cap on damages “was sufficient for California to
justify not extending comity.” Sam, 2006-NMSC-022, ¶ 17. Sam declared that “[a]s
a general rule, comity should be extended. Only if doing so would undermine New
Mexico’s own public policy will comity not be extended.” Id. ¶ 21.
{59} 	In Sam, our Supreme Court at the outset indicated that the question was
whether, with respect to the plaintiff’s claim, the Arizona Tort Claims Act’s one-year
statute of limitations should be applied under comity, whether the NMTCA’s two-year
statute of limitations, or whether the New Mexico three-year statute of limitations on
common law tort claims, should be applied. Id. ¶¶ 1, 3. The Court noted that Arizona
and New Mexico both waived sovereign immunity with respect to the plaintiff’s
claim, but further noted that the waiver of sovereign immunity was “restrained by
strict statutes of limitations.” Id. ¶ 1.

36
{60} 	The Court in Sam addressed whether it should extend comity to Arizona for
application of Arizona’s one-year statute of limitations, holding that “we believe that
New Mexico should extend a limited grant of immunity to Arizona because both states
have done so through tort claims acts. 	However, we should only extend New
Mexico’s two-year statute of limitations instead of applying Arizona’s one-year
statute of limitations.” Id. ¶ 27. The Court did not apply Arizona’s tort claims act’s
one-year statute. 	Id. ¶¶ 20, 27. 	The Court decided to “extend a limited grant of
immunity to Arizona” and also to “extend [the NMTCA’s] two-year statute of
limitations.” 	Id. ¶ 27 (emphasis added). Thus, in regard to Dr. Frezza’s immunity
defense, in its analysis of whether to extend comity, instead of using the words
“apply” or “application” with reference to law, our Supreme Court chose the word
“extend”—that is, under the comity analysis, New Mexico would (1) “extend”
immunity to Arizona, and (2) at the same time would “extend” the New Mexico
statute of limitations “as a matter of comity” or “based on the principles of comity”
or “through comity” to Arizona. Id. ¶¶ 13, 20, 22, 27.
{61} 	What I glean from Sam is that: (1) the Court extended comity to Arizona with
respect to Arizona’s limited sovereign immunity waiver, leaving Arizona immunity
in place and applicable, but did not extend comity with respect to Arizona’s statute of
limitations; and (2) the Court, without expressly saying so, under principles of comity
actually applied the NMTCA statute of limitations in place of Arizona’s statute of

37
limitations as though the NMTCA statute of limitations was Arizona law. The Court
employed the notion “extending” a New Mexico law, namely, NMTCA provisions,
presumably because those provisions cannot “apply” to a person who is not an
employee of a New Mexico governmental entity.
{62} 	I am unaware of how New Mexico, by extending comity to Arizona by
recognizing the sovereign immunity provision in the Arizona tort claims act, also
under or based on comity or comity principles “extends” the NMTCA statute of
limitations provisions “to Arizona” or “to an Arizona public employee.” Sam, 2006-
NMSC-022, ¶¶ 13, 20, 27 (emphasis added). I do not find support in either Hyatt or
Hall for applying the doctrine of comity or its principles by “extending” the NMTCA
to the sister state, in effect incorporating the NMTCA into Arizona’s tort claims act.
I am unaware of any cases outside of Sam that resolves comity issues in this manner.
D. 	DISCUSSION: Following Sam Here
{63} 	The majority essentially follows in Sam’s footsteps, stating that its “conclusion
is consonant with Sam[.]” Majority Op. ¶ 40. Like in Sam, which “extended” the
NMTCA’s two-year statute of limitations to an Arizona government employee to bar
a claim filed in New Mexico against that employee—a person clearly not covered
under the NMTCA—the majority “uses” the NMTCA’s waiver of immunity to strip
Dr. Frezza of immunity, when Dr. Frezza clearly is not covered under the NMTCA.
The majority does not use the words “extend” or “extend under comity or comity

38
principles.” The majority states that “it is appropriate to use the NMTCA to provide
the contours—or measure—of the immunity Dr. Frezza should enjoy,” Majority Op.
¶ 41 (emphasis added), and further states that NMTCA’s immunity-related provisions
“should be coextensive with the immunity enjoyed by New Mexico governmental
agencies and employees. Majority Op. ¶ 39 (emphasis added).
{64} 	In resorting to the words “extending,” “coextensive,” and “use,” the Court in
Sam and the majority here employ legal fictions. Sam and the majority have created
theories or methodologies by which NMTCA provisions either become a part of or
replace a provision in a sister state’s tort claims act to bar a claim (as in Sam) or to bar
a defense (as in the case here).
{65} 	It may well be that the legal-fiction approach necessarily must be employed to
arrive at a satisfactory result in these sovereign immunity, comity circumstances.
Given Sam, I cannot fault the majority’s approach here. The majority tweaks the Sam
analysis by discarding the notion of “extending” the NMTCA to the sister state. The
majority’s 	“use” 	and 	“coextensive” 	theories 	are, 	according 	to 	the 	majority,
“consistent” with Sam. 	The majority’s word selection perhaps more descriptively
suggests what the Court in Sam was doing.
{66} 	I go along with the majority’s resolution albeit there exists no underlying
explanation as to how a Texas resident and government employee with TTCA
immunity, who is recognized as such when sued in New Mexico, will in essence be

3I note that the standard of review in Sam for a court’s analysis under comity
is abuse of discretion. 	See Sam, 2006-NMSC-022, ¶ 12. 	I am unsure why that
standard was chosen. 	One would think that the standard would be de novo, given
(1) the claimed error was the district court’s denial of a motion to dismiss under Rule
1-012(B)(6), and (2) the underlying question is whether the TTCA violates New
Mexico public policy. See Sam, 2006-NMSC-022, ¶ 9 (stating that we generally view
a denial of a motion to dismiss de novo); Nat’l Bank of Ariz. v. Moore, 2005-NMCA-
122, ¶¶ 6-7, 138 N.M. 496, 122 P.3d 1265 (indicating that we review de novo whether
New Mexico public policy is violated).
39
treated as a New Mexico resident and New Mexico government employee, consistent
with or under the NMTCA, with no immunity, when, in all probability, he will be
denied any benefit under the NMTCA and may even receive no TTCA protection.
With the understanding that the TTCA violates New Mexico public policy, I go along,
given the apparent absence of a better resolution based on any underlying rational
support and given the incomplete manner in which the case was developed and
handled on Dr. Frezza’s motion to dismiss.3
{67} 	Comity policy resides with each state in dealing with sovereignty issues such
as those in the case before us. 	See Hall, 440 U.S. at 425-26. State courts exercise
reasonable discretion through practical wisdom and general fairness in their judicial-
law-making determinations and development. See Albert Tate, Jr., The Law-Making
Function of the Judge, 28 La. L. Rev. 211, 214-17 (1968). 	This function is
appropriate in our policy-driven comity circumstance. Note Judge Tate’s poignant
view:

4One might offer a possible alternative comity solution by determining that
there exist two strong New Mexico public policies militating against granting
immunity to physicians sued in New Mexico for medical malpractice: one, lack of
immunity under the NMTCA; two, lack of immunity for a non-New Mexico
government physician sued for medical malpractice in New Mexico. If the TTCA
violates both policies, New Mexico courts will not extend comity to Texas on
immunity. 	The statutes and common law related to medical malpractice actions
control. Under those laws, the physician has no New Mexico immunity. It is doubtful
that this analysis would “fly” under Sam, considering that Sam appears to have chosen
not to explore public policy underlying the three-year statute of limitations and
whether the Arizona statute offended that public policy.
40
I . . . emphasize again what all lawyers know and what few laymen can
deny: That the ordinary and customary operation of our judicial process
requires the courts on occasion to create law-rules where needed to
decide the case[] and that these law-rules operate with prospective effect
to regulate the clashes of similar interests in the future, in much the same
manner (although more limited in scope) as does a new statute.
Id. at 217. The import of a legal fiction into a law-rule where needed to decide the
case can be appropriate, if done through practical wisdom and general fairness, as long
as we recognize and make clear what we are doing and why we are doing it. Although
there might be a different solution for the case before us than to employ a legal
fiction,4 I am satisfied that the methodology employed is consistent with reason and
fairness and appropriate in this case. That is why I concur in the majority’s solution.
__________________________________
JONATHAN B. SUTIN, Judge