CHAVEZ V. REGENTS OF UNIV. OF N.M., 1985-NMSC-114,
103 N.M. 606, 711 P.2d 883 (S. Ct. 1985)
CASE HISTORY ALERT: see ¶5 - affects
1984-NMCA-028
ANTONIO and CIPRIANA CHAVEZ, the parents
and surviving
heirs and representatives of Sandra Diane Chavez, an
unmarried minor, deceased, Petitioners,
vs.
REGENTS OF THE UNIVERSITY OF NEW MEXICO, as trustees of
the
University of New Mexico Hospital, Respondents.
SUPREME COURT OF NEW MEXICO
1985-NMSC-114, 103 N.M. 606, 711 P.2d 883
ORIGINAL PROCEEDING ON CERTIORARI,
Gerard W. Thomson, District Judge
William S. Ferguson, Albuquerque, New
Mexico, For Petitioners.
Rodey, Dickason, Sloan, Akin & Robb,
W. Robert Lasater, Jr., Ellen C. Thorne, Albuquerque, New Mexico, For
Respondents.
Federici, C.J., wrote the opinion. WE
CONCUR: DAN SOSA, JR., Senior Justice, WILLIAM RIORDAN, Justice, HARRY E.
STOWERS, JR., Justice, MARY C. WALTERS, Justice
{*607} FEDERICI, Chief
Justice.
{1} Antonio and Cipriana
Chavez (plaintiffs) brought suit under the Tort Claims Act, NMSA 1978, Sections
41-4-1 to -27 (Repl. Pamp.1982 and Cum. Supp.1985) against the Regents of the
University of New Mexico (defendants), as trustees of the University of New
Mexico Hospital, alleging medical malpractice and the wrongful death of their
seventeen year old daughter. After nearly two years of pre-trial discovery and
motions on the merits, defendants filed a motion to dismiss or, in the
alternative, for summary judgment based on plaintiffs' failure to obtain,
within the time limitation period, court appointment of a personal
representative to sue. The trial court denied defendants' motion, but certified
the issue for interlocutory appeal. The Court of Appeals, in a memorandum
opinion, reversed the trial court and remanded the case for entry of an order
dismissing plaintiffs' action. We granted plaintiffs' petition for writ of
certiorari. We reverse the Court of Appeals and affirm the trial court.
{2} The sole issue presented
for review is whether this action for malpractice and wrongful death brought
under the Tort Claims Act by the natural parents of the deceased girl within
the limitation period is barred, because the parents failed to secure court
appointment as personal representatives within the two-year limitation period
of NMSA 1978, Section
41-4-15 (Repl. Pamp.1982). We hold that the cause of
action is not barred, due to the operation of NMSA 1978, Civ.P. Rules 15(c) and
17(a) (Repl. Pamp.1980).
{3} Plaintiffs' daughter died
on November 19, 1980, in the University of New Mexico Hospital. On September
14, 1982, plaintiffs filed their complaint for malpractice, alleging capacity
as "the parents and surviving heirs and representatives of Sandra Diane
Chavez, an unmarried minor." They sought damages for the loss of their
daughter's society, comfort, support, counsel and services and for medical and
funeral expenses, plus attorney fees. Defendants answered the complaint on September
29, 1982, raising no affirmative defense of lack of capacity to sue. Plaintiff
Cipriana Chavez was appointed personal representative on June 8, 1983. It was
not until November 28, 1984, more than two years after the complaint had been
filed, that defendants first raised the issue of plaintiffs' capacity to sue.
In the interim, over one hundred documents had been filed
{*608}
with the court, depositions taken, interrogatories propounded and answered,
and numerous motions filed.
{4} The Court of Appeals
determined that this case was controlled by
Mackey v. Burke, 102 N.M.
294,
694 P.2d 1359 (Ct. App.1984),
cert. quashed, 102 N.M. 293,
694 P.2d
1358 (1985). In
Mackey, an action for medical malpractice and wrongful
death brought by the plaintiffs individually and as the natural parents of the
deceased under the Medical Malpractice Act, NMSA 1978, Sections
41-5-1 to -28
(Repl. Pamp.1982), the Court of Appeals held that NMSA 1978, Section
41-2-3
(Repl. Pamp.1982) of the Wrongful Death Act applied to bar plaintiffs' suit,
because it had not been brought by and in the name of the personal
representative within the limitation period. Furthermore, the Court of Appeals
would not allow an amended complaint, which added the father as personal
representative and which was filed after the limitation period, to relate back
to the original complaint, so as to bring the amended complaint within the
statute of limitations. The Court of Appeals held that the original complaint
was a nullity.
{5} Similarly, in the instant
case, the Court of Appeals concluded that a wrongful death suit filed under the
Tort Claims Act, NMSA 1978, Sections
41-4-1 to -27 (Repl. Pamp.1982 and Cum.
Supp.1985) must be brought by a court-appointed personal representative within
the limitation period or else be subject to dismissal. We disagree, and to the
extent that
Mackey may be construed to conflict with this opinion, it is
hereby overruled.
{6} The Tort Claims Act
provides "the
exclusive remedy against a governmental entity or
public employee * * *." § 41-4-17 (emphasis added). Governmental entities
and public employees are liable only within the limitations of the Tort Claims
Act and in accordance with its principles. § 41-4-2. The Tort Claims Act waives
immunity for liability for wrongful death negligently caused by public
employees of medical facilities, § 41-4-9, or those licensed by the State to
provide health care services, § 41-4-10. It is undisputed that the statute of
limitations of the Tort Claims Act governs such wrongful death actions.
See
Regents of the University of New Mexico v. Armijo, 103 N.M. 174,
704 P.2d
428 (1985). The Act also provides that the required notice for wrongful death
"may be presented by, or on behalf of, the personal representative of the
deceased person
or any person claiming benefits of the proceeds of a
wrongful death action* * *." § 41-4-16(C) (emphasis added). Plaintiffs in
this case are persons claiming benefits of the proceeds of a wrongful death
action. The Tort Claims Act does not specify, however, who has the capacity to
bring an action for wrongful death.
{7} At common law there was
no right of action for wrongful death.
Ickes v. Brimhall, 42 N.M. 412,
79 P.2d 942 (1938);
Perry v. Staver, 81 N.M. 766,
473 P.2d 380 (Ct.
App.1970). Any such right of action is purely statutory.
Torres v. Sierra,
89 N.M. 441,
553 P.2d 721 (Ct. App.),
cert. denied, 90 N.M. 8, 558 P.2d
620 (1976). The statutory authority for a death action in New Mexico may be
found in the Wrongful Death Act, NMSA 1978, Sections
41-2-1 to -4 (Repl.
Pamp.1982). Section 41-2-1 of this Act allows for a personal injury claim to
survive the death of the injured. Section 41-2-3 requires that every such
action "shall be brought by and in the name or names of the personal
representative or representatives of such deceased person." While we agree
with the Court of Appeals that the personal representative provision is
applicable to the present case, we do not agree with that Court's
interpretation or application of the provision.
{8} It is merely
"incidental" that a "personal representative" is named to
bring a wrongful death action.
Henkel v. Hood, 49 N.M. 45,
156 P.2d 790
(1945). Any recovery for wrongful death has no relation to the deceased's
estate; the recovery does not become part of the estate assets.
Trefzer v.
Stiles, 56 N.M. 296,
243 P.2d 605 (1952). The personal representative is
only a nominal party who was selected by the Legislature to act as the
statutory trustee for the
{*609} individual
statutory beneficiaries.
Dominguez v. Rogers, 100 N.M. 605,
673 P.2d
1338 (Ct. App.),
cert. denied, 100 N.M. 689,
675 P.2d 421 (1983).
{9} "Personal
representative" is not defined by either the Tort Claims Act or the
Wrongful Death act. A statutory definition of the term may be found, however,
in the Probate Code in NMSA 1978, Section
45-1-201(29) (Cum. Supp.1985) which
provides "'personal representative' includes an executor, administrator,
successor personal representative, special administrator and persons who
perform substantially the same function under the law governing their
status."
{10} Although a wrongful
death action in New Mexico must be prosecuted by a personal representative,
Varney
v. Taylor, 77 N.M. 28,
419 P.2d 234 (1966);
Dominguez, the cases
have generally broadly construed who qualifies as a personal representative
under the Wrongful Death Act. In
Henkel, which construed a precursor of
Section 41-2-3, this Court held that a Texas administrator with limited powers
was a "personal representative" within the meaning of the Wrongful
Death Act. The
Henkel Court reasoned that it was unnecessary for an
administrator to have full powers over an estate in order to sue in New Mexico
for wrongful death on behalf of the statutory beneficiaries, since his
authority to bring such an action was derived from the wrongful death statutes,
not from the probate or estate laws. The actual powers and duties of such an
administrator, therefore, were not important to a determination of an
administrator's capacity to sue for wrongful death. The Court in
Henkel
wrote:
The important thing is that the action shall not fail because
of the absence of a party capable of suing....
If and when we can say that such administrator as we have
here answers the purpose of the statute, in that he is, in some sense, a
personal representative of the deceased, he meets the requirement.
49 N.M. at 48-49, 156 P.2d at 792 (citations omitted). The Henkel
Court determined that although "personal representative" means
"executor or administrator, and includes a temporary, special, or
ancillary administrator, and an administrator de bonis non on refusal of the
administrator to sue," id., the duties and powers of such a
personal representative differ according to whether he is acting under the
authority of the Wrongful Death Act or the Probate Code. Thus, a personal
representative under the Wrongful Death Act may be an estate administrator, see
Torres v. Sierra, 89 N.M. 441, 553 P.2d 721 (Ct. App.), cert. denied,
90 N.M. 8, 558 P.2d 620 (1976), as well as an executor or a court-appointed
personal representative. He need not, however, have the full powers required by
the Probate Code, since his duties under the Wrongful Death Act are merely to
act as a nominal party for all the statutory beneficiaries in order to
centralize the claims and prevent multiple and possibly contradictory lawsuits.
{11} The Court of Appeals in
Mackey
relied upon
Henkel for the proposition that "'personal
representative' for the purpose of a wrongful death action, is not synonymous
with the parameters of the Probate Code." 102 N.M. at 296, 694 P.2d at
1361. From this proposition, the Court of Appeals drew several erroneous
conclusions: (1) that the personal representative requirement is
jurisdictional; (2) that if it is not met the suit is a "nullity";
and (3) that an amendment under NMSA 1978, Civ.P. Rule 15(c) (Repl. Pamp.1980)
adding a party as a personal representative would not relate back to the
original filing so as to avoid the bar of the statute of limitations. We
believe this view of the personal representative requirement of the Wrongful
Death Act is unnecessarily restrictive and that NMSA 1978, Civ.P. Rules 15(c)
and 17(a) (Repl. Pamp.1980) dictate a different result.
{12} Rule 15(c) provides:
(c) Relation back of amendments. Whenever the claim or
defense asserted in the amended pleading arose out of the conduct, transaction
or occurrence set {*610} forth or
attempted to be set forth in the original pleading, the amendment relates back
to the date of the original pleading. An amendment changing the party against
whom a claim is asserted relates back if the foregoing provision is satisfied
and, within the period provided by law for commencing the action against him,
the party to be brought in by amendment (1) has received such notice of the
institution of the action that he will not be prejudiced in maintaining his
defense on the merits, and (2) knew or should have known that, but for a
mistake concerning the identity of the proper party, the action would have been
brought against him.
{13} Rule 17(a) provides:
(a) Real party in interest. Every action shall be
prosecuted in the name of the real party in interest; but an executor,
administrator, guardian, trustee of an express trust, a party with whom or in
whose name a contract has been made for the benefit of another or a party
authorized by statute may sue in his own name without joining with him the
party for whose benefit the action is brought; and when a statute of the state
so provides, an action for the use or benefit of another shall be brought in
the name of the state. Where it appears that an action, by reason of honest
mistake, is not prosecuted in the name of the real party in interest, the court
may allow a reasonable time for ratification of commencement of the action by,
or joinder or substitution of, the real party in interest; and such
ratification, joinder or substitution shall have the same effect as if the
action had been commenced in the name of the real party in interest.
{14} New Mexico follows the
principle that in the interests of justice and to promote the adjudication of a
case upon its merits, amendments should be freely granted and allowed to relate
back to the date a complaint was originally filed so as to avoid the bar of the
statute of limitations whenever the requirements of Rule 15(c) are met.
Galion v. Conmaco International, Inc., 99 N.M. 403,
658 P.2d 1130 (1983).
Where the real parties in interest received sufficient notice of the proceedings
or were involved unofficially at an early stage, the statute of limitations
should not be used mechanically to bar an otherwise valid claim.
Galion. See
also Annot., 12 A.L.R. Fed. 233 (1972).
{15} In
Mackey the
Court of Appeals did not allow an amendment to relate back, because it
considered the original suit filed within the statutory period a nullity. We do
not agree that such a claim is a nullity ab initio requiring dismissal and the
institution of a new suit after the plaintiff qualifies as a personal
representative. The nature of the claim in an amended complaint would remain
unchanged from that asserted in the original complaint and would arise out of
"the conduct, transaction or occurrence set forth or attempted to be set
forth in the original pleading." Civ.P.R.15(c). Unlike
DeVargas v.
State ex rel. New Mexico Department of Corrections, 97 N.M. 447,
640 P.2d
1327 (Ct. App.1981),
cert. quashed, 97 N.M. 563,
642 P.2d 166 (1982), in
which the original complaint was deemed a nullity because it failed to state a
claim for relief under 42 U.S.C. Section 1983, the complaint in the present
case is valid on its face. Its only defect is that the plaintiffs failed to
secure appointment as personal representatives within the statutory period. Nor
does the holding of
Mercer v. Morgan, 86 N.M. 711,
526 P.2d 1304 (Ct.
App.1974) mandate that the complaint in this case be considered a nullity. In
Mercer
the court held that a suit filed against a defendant who was deceased was a
nullity and that an amendment would not relate back under Rule 15(c). Clearly
that is not the situation in the present case.
{16} Moreover, under Civ.P.
Rule 17(a), when due to an honest mistake, a suit is not prosecuted in the name
of the real party in interest "the court may allow a reasonable time for
ratification of commencement of the action by, or joinder or substitution of,
the real party in interest; and such ratification, joinder or substitution
shall have the same effect as if the action had been
{*611}
commenced in the name of the real party in interest."
{17} Our Rules of Civil
Procedure are patterned after the Federal Rules of Civil Procedure. A majority
of the federal courts allow a change in a plaintiff's capacity to sue to relate
back to the action's commencement under Fed. Rules Civ.P. 15(c) and 17(a).
See
3 J. Moore,
Moore's Federal Practice § 15.15[4] (2d ed.1985); 6 C.
Wright & A. Miller,
Federal Practice & Procedure § 1555 (1971).
Wrongful death actions have been specifically included within this principle.
See,
e.g., Davis v. Piper Aircraft Corp., 615 F.2d 606 (4th Cir.),
cert.
dismissed, 448 U.S. 911, 101 S. Ct. 25, 65 L. Ed. 2d 1141 (1980);
Holmes
v. Pennsylvania New York Central Transportation Co., 48 F.R.D. 449 (N.D.
Ind.1969);
Shinkle v. Union City Body Co., 94 F.R.D. 631 (D. Kan.1982);
Hunt
v. Penn Central Transportation Co., 414 F. Supp. 1157 (W.D.Pa.1976).
See
also Annot., 12 A.L.R. Fed. 233 (1972).
{18} The reasoning of these
cases has been explained as follows:
Thus in cases involving an amendment, made after the
applicable limitation period has run, which attempted to change the capacity or
identity of the parties, the courts generally examined the facts of the case to
ascertain whether the allowance of such amendment would be inconsistent with
the notice requirements inherent in such limitation. Where plaintiff sought
to change the capacity in which the action is brought, or in which
defendant is sued, there is no change in the parties before the court, all
parties are on notice of the facts out of which the claim arose, and relation
back was allowed in both the case of the plaintiff and the defendant.
3 J. Moore, supra § 15.15[4.-1] at 15-157 (emphasis
added; footnotes omitted).
{19} Also, a majority of the
state courts that have recently considered the issue have reached a similar
result.
See Annot., 27 A.L.R.4th 198 (1984); Annot., 3 A.L.R.3d 1234
(1965). In
Bermudez v. Florida Power & Light Co., 433 So.2d 565
(Fla. App.1983),
cert. denied, 444 So.2d 416 (1984), although a Florida
statute required a death action to be brought by decedent's personal
representative, the court rejected appellees argument that the personal
representative must be appointed before an action can be commenced and that the
original action is a nullity and must be quashed if it is initiated before the
personal representative is appointed. Recently the North Carolina Supreme Court
overruled its older cases which adhered to the notion that a change in a
plaintiff's capacity to sue was equivalent to the bringing of a new cause of
action.
Burcl v. North Carolina Baptist Hospital, Inc., 306 N.C. 214,
293 S.E.2d 85 (1982).Basing its reasoning largely upon Rules 15(c) and 17(a) of
North Carolina's New Rules of Civil Procedure, which also were modeled after
the federal rules, the court in
Burcl held that a foreign administrator,
who under state law lacked capacity to sue for wrongful death, could file a
supplemental pleading changing her capacity to sue and that this pleading would
relate back to the commencement of the action. The
Burcl court
concluded:
The purpose served by the statute of limitations --
protection against state claims -- is in no way compromised by allowing such a
pleading to relate back to the action's commencement. To hold otherwise would
be to return to hypertechnical pleading restrictions inimical to just
resolution of disputed claims, restrictions which our present rules of pleading
were designed to overcome.
Id. at 230, 293 S.E.2d at 95.
{20} In the present case, the
original pleading alleged a valid cause of action and certainly gave defendants
notice of the claim within the statutory period. In fact, the case proceeded
normally with both sides engaging in extensive discovery. Any claim asserted in
an amended pleading would arise out of the same conduct, and occurrence upon
which the original complaint was based. Defendants would in no way be
prejudiced if the appointment of plaintiff Cipriana Chavez as personal
representative is allowed to relate back to the
{*612}
initial filing of the action. We determine, therefore, that in this case
relation-back should be permitted. Such relation-back may be accomplished
either by permitting an amendment to relate back under Rule 15(c) or by
allowing under Rule 17(a) "a reasonable time for ratification of
commencement of the action by, or joinder or subdivision of" the personal
representative.
See Brohan v. Volkswagen Manufacturing Corp., 97 F.R.D.
46 (E.D.N.Y.1983) (this is the kind of technical mistake contemplated by Rule
17).
{21} The Court of Appeals is
reversed, and the trial court's order denying defendants' motion to dismiss is
affirmed. The cause is remanded to the trial court for proceedings consistent
with this opinion.
WE CONCUR: SOSA, Senior Justice, WILLIAM RIORDAN, Justice,
STOWERS, Justice, WALTERS, Justice