Hector Marcano-Martinez; Wanda Hernandez-Diaz v. Cooperativa De Seguros Multiples De Puerto Rico

United States Court of Appeals
For the First Circuit
No. 20-1290
HECTOR MARCANO-MARTINEZ; WANDA HERNANDEZ-DIAZ,
Plaintiffs, Appellants,
v.
COOPERATIVA DE SEGUROS MULTIPLES DE PUERTO RICO,
Defendant, Appellee,
JOHN DOES 1, 2, 3; A, B and C, CORPORATIONS; UNKNOWN INSURANCE
COMPANIES A THROUGH H,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Camille L. Vélez-Rivé, U.S. Magistrate Judge]
Before
Thompson, Boudin, and Kayatta,
Circuit Judges.
David Efron on brief for appellants.
Víctor J. Casal-Vázquez and Javier de la Luz-Gamarra on brief
for appellee.
March 22, 2021

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BOUDIN, Circuit Judge. Héctor Marcano-Martínez and
Wanda Hernández-Díaz sued their insurer, Cooperativa de Seguros
Múltiples de Puerto Rico ("CSM"), to force CSM to pay for damages
Hurricane María inflicted on their property. Finding the suit was
time-barred under the terms of the insurance contract, the district
court granted summary judgment to CSM; Marcano-Martínez and
Hernández-Díaz ("appellants") appeal this judgment.
"In general, the grant of summary judgment is reviewed
de novo, reasonable doubts and issues of credibility being resolved
in favor of the non-moving party." Hernandez-Loring v. Universidad
Metropolitana, 233 F.3d 49, 51 (1st Cir. 2000). Evidentiary
rulings are often said to be tested for "a clear abuse of
discretion," EEOC v. Green, 76 F.3d 19, 24 (1st Cir. 1996), but in
truth evidence issues can easily turn on issues of fact or law or
(quite often) judgment calls for which reasonableness is indeed
the accurate standard.
The insurance contract states that "[n]o legal action
can be brought against us [CSM] unless there has been full
compliance with all the terms of this policy" and "[u]nder the
Property Coverage Part the legal action must start within one year
of the date of loss." Hurricane María struck Puerto Rico on
September 20, 2017, but appellants filed the instant suit more
than a year later, on January 9, 2019.

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Under Puerto Rico law, "[p]rescription of actions is
interrupted by their institution before the courts, by
extrajudicial claim of the creditor, and by any act of
acknowledgement of the debt by the debtor." P.R. Laws Ann.
tit. 31, § 5303.1 Appellants' judicial claim was clearly too late,
so in the district court they said "[c]ommunications related to
extrajudicial claims under the CSM Policy made by Plaintiffs, or
on behalf of them, shall be produced as soon as counsel receives
them." Yet they failed to produce any such communications.
After a status update from both parties, CSM moved for
summary judgment. Appellants replied via declarations stating
they:
attempted to contact [CSM] on multiple occasions
starting on or about September 27, 2017 to make an
extrajudicial claim under Insurance Policy No MPP-
2280791. . . . After many attempts over the next few
months, when [we] did get through we were assured we
would be called back. No such call ensued. We knew
from different sources that this insurer was not
responding to claims, much less returning calls
regarding coverage. . . . CSM has refused to pay, or in
any way effectively resolve our claim, and has for some
time, during most of 2018, been ignoring meaningful
communications by us.
1 As understood by the Supreme Court of Puerto Rico, and
endorsed by this court, an extrajudicial claim "stands for demand
or notice. That is: it is an act for which the holder of a
substantive right addresses the passive subject of said right,
demanding that he adopt the required conduct." Tokyo Marine &
Fire Ins. Co. v. Perez & Cia., de P.R., Inc., 142 F.3d 1, 4 (1st
Cir. 1998) (citation omitted).

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CSM submitted three declarations from its employees, each stating
that "[n]o judicial nor extrajudicial claim was made to [CSM]
before the filing of this complaint." The court concluded that
appellants hadn't made an extrajudicial claim.
Appellants argue the district court erred by crediting
CSM's declarations but not appellants' declarations. But in its
opinion the court assumed that appellants had called CSM, stating:
"Even if Defendant CSM had been timely notified, the method used
by Plaintiffs was still not adequate. A phone call with no other
evidence, not even a claim number, is insufficient to toll the
prescriptive period . . . ."
Appellants also argue that phone calls they allegedly
made were extrajudicial claims; an extrajudicial claim "must be
made by the holder of the substantive right (or his legal
representative), it must be addressed to the debtor or passive
subject of the right, not to a third party, and it must require or
demand the same conduct or relief ultimately sought in the
subsequent lawsuit." Rodriguez Narvaez v. Nazario, 895 F.2d 38,
44 (1st Cir. 1990) (internal citations omitted).
"Although prescription is an affirmative defense, once
it has been raised, the burden of proving that prescription has
been interrupted shifts to the plaintiff." Rodríguez v. Suzuki
Motor Corp., 570 F.3d 402, 406 (1st Cir. 2009) (citing Tokyo Marine
& Fire Ins. Co., 142 F.3d at 4). Assuming, as the district court

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did, that appellants called CSM, their claims lacked the
specificity required to meet their burden. See Kery v. Am.
Airlines, Inc., 931 F. Supp. 947, 953 (D.P.R. 1995) (citing
Fernandez v. Chardon, 681 F.2d 41, 53 (1st Cir. 1982)) (noting
extrajudicial claims must be "precise and specific" to toll the
limitations period). Appellants provided no details as to what
they said to CSM in the phone calls--appellants did not even point
to a specific date when they allegedly called CSM. Of the cases
appellants cite, the only one where oral communication was enough
to toll involved extensive conversations between opposing
counsels, occurring within a specified range of dates, that led
directly to settlement negotiations regarding the same claim later
raised in court.2 Lazaro v. Abbott Med. Optics, Inc., No. 16-
1248, 2017 WL 1380539, at *5-6 (D.P.R. Apr. 17, 2017).
Appellants make five more arguments, each of which was
not made in the district court. Delay in raising arguments wastes
time and money; absent unusual circumstances, arguments raised for
the first time on appeal should fail almost automatically. See
2 Additionally, at least one of the appellants was an
attorney, a sophisticated party who presumably would have been
aware of the importance of documenting the multiple occasions when
they attempted to make an extrajudicial claim. Cf. Walker v.
President & Fellows of Harvard Coll., 82 F. Supp. 3d 524, 532 (D.
Mass. 2014) (concluding plagiarism hearing of a law student
conformed to basic principles of fairness because plaintiff was
"herself a sophisticated party, having nearly completed her JD at
Harvard Law School.").

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Teamsters Union, Local No. 59 v. Superline Transp. Co., 953 F.2d
17, 21 (1st Cir. 1992). None as raised here warrants an exception.
Affirmed.

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