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<pre>                  UNITED STATES COURT OF APPEALS <br>                      FOR THE FIRST CIRCUIT <br>                       ____________________ <br> <br>No. 96-2029 <br> <br>            TOKYO MARINE AND FIRE INSURANCE CO., LTD., <br> <br>                      Plaintiff, Appellant, <br> <br>                                v. <br> <br>               PEREZ & CIA., DE PUERTO RICO, INC., <br> <br>                       Defendant, Appellee. <br> <br>                       ____________________ <br> <br>No. 96-2030 <br> <br>            TOKYO MARINE AND FIRE INSURANCE CO., LTD., <br> <br>                       Plaintiff, Appellee, <br> <br>                                v. <br> <br>               PEREZ & CIA., DE PUERTO RICO, INC., <br> <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>          APPEALS FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>         [Hon. Salvador E. Casellas, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>                      Lynch, Circuit Judge, <br> <br>and DiClerico, Jr., District Judge. <br>                      _____________________

    Vanessa Viera, with whom Raymond P. Burgos, Rafael Vil- <br>Carrin and Pinto-Lugo & Rivera were on brief, for appellant. <br>    Antonio M. Bird, Jr., with whom Bird Bird & Hestres was on <br>brief, for appellee. <br> <br> <br> <br>                       ____________________ <br> <br>                         April 21, 1998 <br>                       ____________________

          TORRUELLA, Chief Judge.  Tokyo Marine and Fire Insurance <br>Co., Ltd. ("Tokyo Marine"), as subrogee to the rights of its <br>insured, Mitsubishi Motors Sales of the Caribbean, Inc. <br>("Mitsubishi"), filed this tort suit in diversity against defendant <br>Prez y Ca. de Puerto Rico, Inc. ("Prez y Ca.") for the damage <br>caused to vehicles owned by Mitsubishi while they were stored at a <br>facility owned by Prez y Ca.  After holding a bench trial, the <br>district court entered judgment finding Prez y Ca. liable to <br>Tokyo Marine on seven out of the eight counts in the complaint.  <br>Tokyo Marine and Prez y Ca. now cross-appeal from the judgment of <br>the district court.  Tokyo Marine contends that the district court <br>erred in finding that the first count of its complaint was time- <br>barred, while Prez y Ca. challenges the court's finding of <br>liability.  Prez y Ca. also appeals from the district court's <br>decision to award attorneys' fees to Tokyo Marine under P.R. R. <br>Civ. P. 44.1 as a sanction for what it perceived as Prez y Ca.'s <br>obstinate conduct in this litigation.  For the reasons explained <br>below, we affirm in part and reverse in part. <br>I.  Background <br>          We recite the facts in the light most favorable to the <br>judgment.  See Wainwright Bank & Trust Co. v. Boulos, 89 F.3d 17, <br>18 (1st Cir. 1996). <br>          This case involves eight shipments of cars owned by <br>Mitsubishi that were damaged while they were stored at a harbor- <br>side lot owned by defendant Prez y Ca.  On February 15, 1993, the <br>M/V ORION HIGHWAY arrived in San Juan, Puerto Rico, and docked at <br>a berthing facility owned by Prez y Ca.  The ship was carrying <br>the first shipment of cars at issue in this case, which consisted <br>of 619 Mitsubishi-brand motor vehicles consigned to Mitsubishi <br>Motors Sales of the Caribbean, Inc.  The cars were discharged and <br>stationed on Prez y Ca.'s lot for one week, at the end of which <br>they were delivered to Mitsubishi.  The Prez y Ca. dock and <br>storage lot were chosen by San Juan Mercantile Corp., Mitsubishi's <br>agent and stevedoring contractor.  San Juan Mercantile was <br>responsible for the vehicles from the time of discharge until they <br>were delivered to Mitsubishi. <br>           Tokyo Marine had a working arrangement with Intermodal <br>Transportation Services, Inc. ("Intermodal"), a Florida firm that <br>provides survey services, whereby Intermodal surveyed vehicle <br>damage claims presented to Tokyo Marine under the insurance policy <br>issued to Mitsubishi.  Pursuant to this arrangement, Intermodal's <br>surveyors would conduct "hatch and discharge" surveys of vehicle <br>shipments when they arrived at a port, and "first point of rest" <br>surveys just after the vehicles were discharged.  The purpose of <br>these surveys was to discover any damage to the vehicles, and to <br>determine whether such damage occurred before, during, or after the <br>discharge of the vehicles from the ship. <br>          After the M/V ORION HIGHWAY arrived, a local surveyor <br>retained by Intermodal performed hatch, discharge, and first point <br>of rest surveys of the shipment, and found the vehicles to be free <br>of paint damage.  When the vehicles were delivered to Mitsubishi a <br>week later, however, many were found to be covered with a light <br>dusting of paint.  It was later discovered that during the week <br>that the cars were parked at Prez y Ca.'s lot, Prez y Ca. <br>employees were also painting an ocean-going barge at a drydock <br>directly adjacent to the lot on its upwind side.  After hearing <br>evidence on the issue, the district court found that the Mitsubishi <br>vehicles were damaged by free-floating paint that wafted onto the <br>vehicles.   <br>          The district court also found that Mitsubishi vehicles <br>that arrived in seven other shipments over the next year and a half <br>were damaged in like manner while they were stored at the Prez y <br>Ca. lot.  The district court determined that the claim based on <br>the damage to the vehicles in the first shipment was time-barred, <br>but allowed the claims arising from the damage to vehicles in the <br>remaining seven shipments.  With regard to those claims, the <br>district court found that Prez y Ca. was negligent in permitting <br>the vehicles to be damaged because, although its employees knew of <br>the "over spray" problem, the company took no measures to avoid or <br>prevent the problem.  The district court also found that Mitsubishi <br>had not acted in a comparatively negligent manner by continuing to <br>store its vehicles at the Prez y Ca. lot because, short of <br>stopping vehicle shipments altogether, it could not prevent the use <br>of the Prez y Ca. berthing and vehicle storage facilities.  The <br>district court therefore entered judgment for the plaintiff in the <br>amount of $243,530.  Finally, the district court concluded that the <br>defendant had been obstinate in its conduct of this litigation and <br>was therefore liable for attorneys' fees pursuant to P.R. R. Civ. <br>P. 44.1. Both parties have appealed from the judgment below. <br>II.  Statute of Limitations  <br>          Tokyo Marine argues that the district court erred in <br>finding that its claim for the damage caused to the cars in the M/V <br>ORION HIGHWAY shipment was barred by the applicable statute of <br>limitations.  This tort action was brought under Puerto Rico's tort <br>statute, article 1802 of the Civil Code, P.R. Laws Ann. tit. 31, <br> 5141.  Tort claims under article 1802 are subject to the one-year <br>statute of limitations provided by article 1868(2) of the Civil <br>Code, P.R. Laws Ann. tit. 31,  5298(2).  A cause of action under <br>article 1802 accrues - and the prescriptive period set by article <br>1868(2) therefore begins to run - when the injured party knew or <br>should have known of the injury and of the likely identity of the <br>tortfeasor.  See Coln-Prieto v. Gigel, 115 P.R. Dec. 232, 243 <br>(1984).  As noted above, the district court found that the cars in <br>the M/V ORION HIGHWAY shipment were damaged at some point no later <br>than February 23, 1993.  This suit was filed on April 19, 1994, <br>more than one year after the cause of action had accrued.  <br>Therefore, unless the prescription of the cause of action was <br>interrupted, the cause of action relating to the cars in the M/V <br>ORION HIGHWAY shipment would be time-barred. <br>          Pursuant to article 1873 of the Civil Code, a <br>prescriptive period may be interrupted in one of three ways:  by <br>the institution of an action "before the courts, by extrajudicial <br>claim of the creditor, and by any act of acknowledgment of the debt <br>by the debtor."  P.R. Laws Ann. tit. 31,  5303 (official <br>translation 1991).  Although prescription is an affirmative <br>defense, once it has been raised, the burden of proving that <br>prescription has been interrupted shifts to the plaintiff.  SeeVelez-Rodrguez v. Pueblo Int'l, Inc., 135 P.R. Dec. ___, 1994 WL <br>909577, at *8 (Mar. 18, 1994); Zambrana-Maldonado v. Puerto Rico, <br>129 P.R. Dec. ___, 1992 WL 754997, at *4 (Jan. 30, 1992).  Under <br>article 1874 of the Puerto Rico Civil Code, the interruption of <br>prescription against one defendant also tolls the statute against <br>any other defendants who are solidarily liable with the first.  <br>See P.R. Laws Ann. tit. 31,  5304 ("Interruption of prescription <br>of actions in joint obligations equally benefits or injures all the <br>creditors or debtors.") (official translation 1991); Arroyo v. <br>Hospital La Concepcin, 130 P.R. Dec. ___, 1992 WL 755630, at *6 <br>(June 5, 1992).  Regardless of the method used, when the <br>prescriptive period is successfully interrupted, the full period <br>begins to run again.  See Cintrn v. Puerto Rico, 127 P.R. Dec. <br>582, 589 (1990); Daz-de-Diana v. A.J.A.S. Ins. Co., 110 P.R. Dec. <br>471, 474 (1980).   <br>          Neither the first nor the third method of interrupting <br>prescription is applicable here: no suit concerning the events in <br>question was filed before April 19, 1994, and the defendants have <br>consistently denied liability.  The issue before us is therefore <br>reduced to the question whether the plaintiff interposed an <br>"extrajudicial claim" with regard to the M/V ORION HIGHWAY shipment <br>that successfully interrupted the prescription of the cause of <br>action before the original one-year term expired on February 23, <br>1994. <br>          The Supreme Court of Puerto Rico has often relied on a <br>definition of "extrajudicial claim" written by Spanish commentator <br>Luis Diez-Picazo:  <br>            In principle, claim stands for demand or <br>            notice.  That is:  it is an act for which <br>            the holder of a substantive right <br>            addresses the passive subject of said <br>            right, demanding that he adopt the <br>            required conduct. <br> <br>Luis Diez-Picazo, La prescripcin en el Cdigo Civil [Prescription <br>in the Civil Code] at 130 (Barcelona, Ed. Bosch 1964) (translation <br>ours) (cited in Cintrn, 127 P.R. Dec. at 592;  Secretario del <br>Trabajo v. Finetex Hosiery Co., 116 P.R. Dec. 823, 827 (1986); <br>Daz-de-Diana, 110 P.R. Dec. at 476).  As this court has previously <br>explained, an extrajudicial claim is subject to only a few <br>requirements: <br>            [A]n extrajudicial claim does in fact <br>            include virtually any demand formulated by <br>            the creditor.  The only limitations are <br>            that the claim must be made by the holder <br>            of the substantive right (or his legal <br>            representative), . . . it must be <br>            addressed to the debtor or passive subject <br>            of the right, not to a third party, . . . <br>            and it must require or demand the same <br>            conduct or relief ultimately sought in the <br>            subsequent lawsuit. <br> <br>Rodrguez-Nrvaez v. Nazario, 895 F.2d 38, 44 (1st Cir. 1990) <br>(citations omitted); see Galib-Frangie v. El Vocero, Inc., 138 P.R. <br>Dec. ___, 1995 WL 905884, at *3 (June 6, 1995) (enumerating <br>requirements for extrajudicial claims).  The prescriptive term is <br>interrupted on the date on which the defendant receives the <br>extrajudicial claim.  See Daz-de-Diana, 110 P.R. Dec. at 477. <br>          It follows that a letter sent by a tort plaintiff to the <br>tortfeasor, complaining of the tortious conduct and demanding <br>compensation, is an extrajudicial claim that, if timely, interrupts <br>the prescription of the cause of action in tort.  Tokyo Marine <br>argues that the parties involved in this suit sent each other <br>several letters that, either separately or in conjunction, <br>constituted extrajudicial claims that tolled the statute of <br>limitations for the cause of action arising out of the M/V ORION <br>HIGHWAY shipment.  Because we find that one of these letters <br>sufficed to interrupt the prescription of this cause of action, we <br>need not consider the others.  <br>          On January 10, 1994, Tokyo Marine's attorneys wrote a <br>letter to Prez y Ca.'s insurance company, Underwriters Adjustment <br>Co., Inc. ("UAC"), stating that:  <br>            We have been retained by the interested <br>            cargo underwriters to effect a recovery <br>            for damage to Mitsubishi automobiles due <br>            to paint over spray on February 15, 1993.  <br>            We are holding your assured, Prez y Ca. <br>            de Puerto Rico, Inc. responsible for this <br>            loss in the amount of $369,700.  The <br>            following is a breakdown of the damages: <br>            . . . .  Kindly acknowledge receipt of <br>            this claim notice and provide us with your <br>            settlement advises.  <br> <br>The letter was timely, was sent by persons with standing to do so, <br>and sought the same relief subsequently claimed in this lawsuit.  <br>This letter therefore constituted an extrajudicial claim that <br>clearly interrupted the prescription of any claims against UAC. <br>          UAC, however, was never made a party to this suit.  Tokyo <br>Marine contends that the interruption of prescription with regard <br>to its claims against UAC also tolled the statute as to its claims <br>against Prez y Ca.  As noted above, under article 1874 of the <br>Civil Code, the interruption of the prescription of claims against <br>one defendant also interrupts the prescription of claims against <br>any other defendants who are solidarily liable with the first.  <br>Accordingly, Tokyo Marine argues that UAC is solidarily liable for <br>the damage caused by its insured, Prez y Ca. <br>          The concept of solidarity is defined by the provisions of <br>Civil Code articles 1090-1115, P.R. Laws Ann. tit. 31,  3101-12, <br>which establish the differences between mancomunal (similar to <br>"several") and solidary obligations.  As noted before, solidarity <br>is very similar to joint and several liability. See supra note 1.  <br>The essential feature of solidarity is that the solidary debtors <br>are jointly responsible for the the same obligation.  See Arroyo, <br>1992 WL 755630, at *1-2; Ramos v. Caparra Dairy, Inc., 116 P.R. <br>Dec. 60, 62-63 (1985). <br>          However, solidarity does not presuppose that the scope or <br>source of liability is identical for each solidary debtor.  To the <br>contrary, "[s]olidarity may exist, even though the creditors and <br>debtors are not bound in the same manner, and for the same periods <br>and under the same conditions."  P.R. Civ. C. art. 1093, P.R. Laws <br>Ann. tit. 31,  3104.   More generally, the entire set of <br>provisions regarding solidary obligations recognizes that solidary <br>debtors may be obligated to different degrees; thus the reference <br>to shares.  The same principle is implicit in P.R. Civ. C. art. <br>1101, which provides "[a] solidary debtor may utilize, against the <br>claim of the creditor, all the exceptions arising from the nature <br>of the obligation and those which are personal to him."  P.R. Laws <br>Ann. tit. 31,  3112.  After all, personal exceptions are precisely <br>those not shared by the other solidary debtors. <br>          One of the "secondary" consequences of categorizing an <br>obligation as solidary rather than mancomunal is that the rules <br>regarding the interruption of prescription are different.  SeeArroyo, 1992 WL 755630, at *5.  Specifically, the "[i]nterruption <br>of prescription of actions in joint obligations equally benefits or <br>injures all the creditors or debtors," while "in [mancomunal] <br>obligations, when the creditor does not claim from one of the <br>debtors more than the part pertaining to him, prescription is not <br>interrupted for that reason with regard to the other co-debtors."  <br>P.R. Civ. C. art. 1874.  The reason for the difference is that <br>solidarity is based on the theory that there is one obligation, <br>shared by several debtors.  See Arroyo, 1992 WL 755630, at *5.  The <br>interruption of the prescription of the cause of action based on <br>that unitary obligation therefore need only be performed once. <br>          There are two sources of solidarity: contract and <br>statute.  See Arroyo, 1992 WL 755630, at *2-3 & n.3 ("Solidarity <br>exists by the will of the parties or by law.") (translation ours).  <br>The provisions cited above apply equally to both contractual and <br>statutory solidarity; the only difference between them is that <br>while contractual obligations are presumed not to be solidary <br>unless there is an express agreement to the contrary, see P.R. Civ. <br>C. art. 1090, statutory solidarity operates without regard to the <br>parties' consent to be so bound with each other, see Arroyo, 1992 <br>WL 755630, at *3 (holding that joint tortfeasors are solidarily <br>liable). <br>          Tokyo Marine has not argued that UAC and Prez y Ca. <br>expressly agreed to be solidarily liable to any persons injured by <br>Prez y Ca.  The question is therefore whether the liability of an <br>insurer for the harm caused by its insured can be described as <br>solidary liability.  In order to answer this question, we look to <br>the only case in which the Supreme Court of Puerto Rico has <br>explicitly held that a statute had imposed a variety of solidary <br>liability.  See Arroyo, 1992 WL 755630.  In that case, the Puerto <br>Rico Supreme Court concluded that joint tortfeasors are solidarily <br>liable, even though P.R. Civ. C. art. 1802 does not explicitly <br>mention solidarity.  See id. at *4.  The Puerto Rico Supreme Court <br>based its conclusion on the nature and scope of tort liability.  <br>Under article 1802, when the negligent acts of more than one person <br>have adequately caused a harm, each such person is a joint <br>tortfeasor who is liable in full to the plaintiff for the harm <br>caused.  The Puerto Rico Supreme Court found that the relationship <br>between the liabilities of joint tortfeasors was indistinguishable <br>from the contractual solidarity described in P.R. Civ. C. art. 1090 <br>because joint tortfeasors, like contractual solidary debtors, are <br>jointly liable for the same obligation.  See P.R. Laws Ann. tit. <br>31,  3101; Arroyo, 1992 WL 755630, at *4.  The Puerto Rico Supreme <br>Court therefore held that article 1874 of the Civil Code applies to <br>joint tortfeasors, so that the timely filing of a suit against one <br>joint tortfeasor had interrupted the prescription of the suit <br>against the other tortfeasors.  See Arroyo, 1992 WL 755630, at *5. <br>          Applying the analysis employed in Arroyo, we conclude <br>that the Puerto Rico Supreme Court would hold that insured <br>defendants and their insurance companies are solidarily liable for <br>the acts of the insured.  The Puerto Rico Insurance Code specifies <br>the nature and extent of a liability insurer's responsibility for <br>the damage caused by its insured.  In particular, article 20.010 of <br>the Insurance Code makes liability insurers absolutely liable to <br>persons injured by their insured.  See P.R. Laws Ann. tit. 26, <br> 2001.  Article 20.010 must be read in conjunction with article <br>20.030, according to which an injured party may bring an action <br>directly against the tortfeasor's liability insurer, or against <br>both the tortfeasor and the insurer.  See P.R. Laws Ann. tit. 26, <br> 2003.  Admittedly, article 20.030 does not state explicitly that <br>tortfeasors and their insurers are liable in solido, which raises <br>the possibility that the Puerto Rico Legislature did not intend to <br>make them so.  But then, P.R. Civ. C. art. 1802 does not explicitly <br>mention solidarity, either.  As in the case of joint tortfeasors, <br>the liability imposed by the Insurance Code upon insurers is co- <br>extensive with that of their insured, up to the limits of the <br>policies in question.   <br>          Moreover, the fact that the statutory sources of <br>liability for a tortfeasor and its insurer are different does not <br>prevent their liabilities from being solidary.  As noted above, <br>"[s]olidarity may exist, even though the creditors and debtors are <br>not bound in the same manner, and for the same periods and under <br>the same conditions."  P.R. Civ. C. 1093. <br>          Our conclusion that an insurer and its insured are <br>solidarily liable is bolstered by the Puerto Rico Supreme Court's <br>determination that a suit against an insurer may be filed up to one <br>year after judgment is entered in a suit against the insured.  SeeBarrientos v. Gobierno de la Capital, 97 P.R. Dec. 552, 576-77 <br>(1969) (interpreting P.R. Ins. C. art. 20.030(2)).  The holding in <br>Barrientos is consistent with our conclusion; as we noted above, <br>one of the secondary consequences of solidarity is that the <br>interruption of prescription as to one solidary debtor affects the <br>other solidary debtors, see P.R. Civ. C. art. 1874, so that a suit <br>against one joint tortfeasor may be filed up to one year after <br>judgment is entered in a suit against another joint tortfeasor, seeArroyo, 1992 WL 755630, at *5. <br>          While the Puerto Rico Supreme Court has not decided this <br>issue, three justices have addressed it in dicta.  All agree with <br>our conclusion.  For example, in an opinion dissenting on a <br>different issue, Associate Justice Rebollo explicitly stated that, <br>"[a]s is well-known, an insurance company . . . is solidarily <br>liable for the negligent acts that its insured may commit."  Torresv. Puerto Rico, 130 P.R. Dec. ___, 1992 WL 755617, at *2 (June 8, <br>1992) (translation ours).  Similarly, Associate Justice Naveira de <br>Rodn noted in her concurrence in another case that the defendants <br>therein -- a leasing company, its insurance company, and the <br>lessor-driver -- were solidarily liable for injuries resulting from <br>the driver's negligence.  See Marrero-Albino v. Vzquez-Egean, 135 <br>P.R. Dec. ___, 1994 WL 909230, at *2 (Feb. 24, 1994).  In an <br>opinion dissenting on other grounds in that same case, Associate <br>Justice Fuster-Berlingeri also wrote that "there is no doubt <br>whatsoever as to the solidarity existing between the tortfeasor, . <br>. . the company that owned the vehicle that he was driving, and its <br>insurer."  Marrero-Albino, 1994 WL 909232, at *5.  As Justice <br>Fuster explained, "in light of the clear literal sense and purposes <br>served by [P.R. Ins. C. art. 20.010], it is necessary to conclude <br>that, with regard to the plaintiff's claim, the three defendants <br>. . . were equally situated from a legal point of view, as if they <br>were one party with regard to the claim made by the plaintiff."  <br>Id. <br>          More oblique support for this conclusion is found in <br>Miranda v. Puerto Rico, 137 P.R. Dec. ___, 1994 WL 908883, at *6 <br>(Dec. 7, 1994), in which the Puerto Rico Supreme Court affirmed the <br>trial court's judgment, which, among other things, held the <br>defendants and their insurance companies to be solidarily liable <br>for the award of damages.  Similarly, in Trigo v. The Travelers <br>Insurance Co., 91 P.R. Dec. 868 (1965), the Puerto Rico Supreme <br>Court reversed a trial court's determination that a claim against <br>the insurer was time-barred, even though the plaintiff had made a <br>timely extrajudicial claim against it.  Since the trial court <br>reasoned that the interruption of prescription against the insurer <br>had not interrupted prescription against the insured, the Puerto <br>Rico Supreme Court could be understood to have disapproved of the <br>trial court's implicit determination that the insured was not <br>liable in solido with its insurer.  Cf. Neptune Packing Corp. v. <br>The Wackenhut Corp., 120 P.R. Dec. 283, 289 (1988) (stating that <br>claims against insurer and insured should generally be brought in <br>the same suit rather than separately). <br>          The handful of cases that could be read to support the <br>opposite conclusion - that defendants and their insurers are not <br>solidarily liable - appear to us to be less compelling.  For <br>example, in Velilla v. Pueblo Supermarkets, Inc., 111 P.R. Dec. 585 <br>(1981), the plaintiff-appellant had originally communicated with <br>the defendant, Pueblo Supermarkets.  Pueblo, however, referred the <br>plaintiff to International Claims Investigators, Inc., an <br>independent insurance adjuster.  When, more than a year afterwards, <br>the plaintiff filed suit against Pueblo, Pueblo moved for and <br>obtained dismissal of the suit on the basis that the cause of <br>action was barred by the statute of limitations because the <br>insurance adjuster was not its agent.  The Supreme Court reversed, <br>but not because the claims made against the insurer had <br>simultaneously interrupted prescription as to Pueblo.  Instead, the <br>Supreme Court merely held that Pueblo was equitably estopped from <br>raising the time-bar defense.  Although one could read the choice <br>of rationale as a suggestion that the claim against the insurer <br>does not simultaneously interrupt prescription as to the insured, <br>we find the inference weak because there were other, more likely <br>reasons why the court decided as it did. <br>          Furthermore, our conclusion is consistent with the <br>history and purpose of P.R. Ins. C. arts. 20.010 and 20.030, which <br>were intended to reverse by statute a number of decisions of the <br>Puerto Rico Supreme Court.  In Cruz-Nieves v. Gonzlez, 66 P.R. <br>Dec. 212 (1946), the plaintiff had timely filed an extrajudicial <br>claim with the defendant's insurance company, but did not file suit <br>against the defendant until more than a year after the accident.  <br>When the defendant raised the failure to file suit within the one <br>year period required by P.R. Civ. C. art. 1868, the plaintiff <br>countered that the prescription of her action against the defendant <br>had been interrupted by the extrajudicial claim against the <br>insurance company because the two were solidarily liable.   <br>          At issue in Cruz-Nieves was article 175 of the former <br>Insurance Law of Puerto Rico (predecessor to the current Insurance <br>Code), which permitted a plaintiff to file a claim against an <br>insurance company jointly with the insured.  In the court's view, <br>an insurance company was liable under article 175 only if its <br>insured were found liable.  The court accepted for purposes of <br>argument the plaintiff's contention that the insurance company was <br>directly liable to her and therefore that her extrajudicial claim <br>against the company interrupted the prescription of her claim <br>against the company.  Nevertheless, since the claim against the <br>defendant was barred by the statute of limitations, the insurance <br>company could not be liable.  Based on this transparently circular <br>reasoning, the court rejected her argument and affirmed the <br>dismissal of her complaint.  Noting that "solidarity is not <br>presumed, nor does it exist unless it has been expressly agreed <br>to," the court also concluded that the liability of the defendant <br>and its insurance company could not be solidary because the <br>complaint had not alleged that the insurance contract had expressly <br>provided that the insurance company would be directly liable to <br>third parties.  Id. at 214. <br>          One year later, the Puerto Rico Supreme Court expressly <br>rejected the claim that it had accepted for purposes of argument in <br>Cruz-Nieves; namely, the argument that an insurance company was <br>directly liable to a person injured by its insured.  See United <br>States Cas. Co. v. Corte de Distrito de Arecibo, 66 P.R. Dec. 937, <br>939 (1947).  The court held that article 175 of the Puerto Rico <br>Insurance Law did not create a cause of action against an insurer.  <br>The court explained that article 175 authorized a claim against an <br>insurer only when the plaintiff had already obtained a judgment <br>against the insured defendant, or when the insurer had been named <br>a party to the same suit as the insured.  See id.  Based on its <br>decisions in Cruz-Nieves and United States Casualty Co., the Puerto <br>Rico Supreme Court subsequently held that the extrajudicial claim <br>made to the insurer within the one-year prescriptive period did not <br>interrupt the prescription of the claim against the insured.  SeeBithorn-Huicy v. Santana, 68 P.R. Dec. 300, 306 (1948); see alsoGuerra v. Ortiz, 71 P.R. Dec. 613, 624 (1950); Autoridad de Fuentes <br>Fluviales v. Irizarry, 72 P.R. Dec. 644, 650 (1951). <br>          As the Puerto Rico Supreme Court noted several years <br>later, the excessively technical interpretation of the law adopted <br>in this series of cases placed a number of frustrating roadblocks <br>in the way of injured persons who sought compensation from the <br>insurers of the persons who injured them.  See Trigo v. The <br>Travelers Ins. Co., 91 P.R. Dec. 868, 871 (1965).  It was no <br>coincidence, surmised the Trigo court, that the Legislative <br>Assembly of Puerto Rico amended article 175 in 1952 to allow <br>plaintiffs the option of suing insurance companies either directly, <br>or jointly with the insured.  See Act No. 60 of April 17, 1952.  By <br>permitting a direct suit against an insurer, the amended section <br>175 seemed to establish a separate, direct cause of action against <br>insurers. <br>          That interpretation of the amendment, however, was <br>rejected in Prez v. Maryland Casualty Co., 78 P.R. Dec. 475 <br>(1955).  In Prez, Associate Justice Snyder (the author of the <br>court's opinion in Bithorn-Huicy) wrote for the court that the 1952 <br>amendment was merely procedural, permitting a suit to go forward <br>even when the insured was not amenable to service of process.  The <br>court held that the amendment had not created a direct cause of <br>action against insurers, such as the one provided by Louisiana law, <br>because a plaintiff still had to prove that the insured was liable.  <br>See id. at 480 & n.3 (citing La. Rev. Stat. Ann. tit. 22,  655); <br>see also Landol v. Coln, 78 P.R. Dec. 602 (1955) (following <br>Prez); but see Aponte v. American Surety Co., 276 F.2d 678 (1st <br>Cir. 1960) (holding that 1952 amendment created new direct cause of <br>action against insurers). <br>          As the Trigo court remarked, the Prez opinion rendered <br>the 1952 amendment effectively irrelevant.  See 91 P.R. Dec. at <br>873.  In 1957, however, the old insurance law was repealed and <br>replaced by the current Insurance Code.  See Act No. 77 of June 19, <br>1957, P.R. Laws Ann. tit. 26.  The new code contained a number of <br>provisions, particularly articles 20.010 and 20.030, that clearly <br>established a direct cause of action against insurers.  See Trigo, <br>91 P.R. Dec. at 874.  It is evident that the enactment of P.R. Ins. <br>C. arts. 20.010 and 20.030 was intended to reverse the Puerto Rico <br>Supreme Court's decisions in Cruz-Nieves, United States Casualty <br>Co., Bithorn-Huicy, Guerra, Autoridad de Fuentes Fluviales, Prez, <br>and Landol.  Since these cases held, among other things, that an <br>insurer and its insured were not solidarily liable, their reversal <br>supports (although, admittedly, does not compel) the conclusion <br>that the direct liability newly imposed upon insurers is solidary <br>with the liability of their insured. <br>          The court also noted in Trigo that P.R. Ins. C. art. <br>20.030 uses "language [that is] very similar to the one in the <br>Louisiana legislation to which we made reference in the Prez case, <br>which makes the insurer substantively and directly responsible" for <br>the harm caused by its insured.  Trigo, 91 P.R. Dec. at 874 <br>(translation ours).  Under Louisiana law, the insurer and the <br>insured are joint and solidary obligors, and, thus, a suit against <br>the insurer interrupts prescription against the insured.  SeeHoefly v. Government Employees Ins. Co., 418 So.2d 575 (La. 1982); <br>Pearson v. Hartford Accident & Indemn. Co., 281 So.2d 724, 726-27 <br>(La. 1973); Tuck v. Commercial Standard Ins. Co., 164 So.2d 472 <br>(La. App. Ct. 1935); see also Cormier v. Clemco Servs. Corp., 48 <br>F.3d 179 (5th Cir. 1995); McDermott v. Crown Zellerbach Corp., 418 <br>F.2d 598 (5th Cir. 1969); Melancon v. The Travelers Ins. Co., 209 <br>F. Supp. 68 (W.D. La. 1962); see generally H. Alston Johnson, The <br>Louisiana Direct Action Statute, 43 La. L. Rev. 1455, 1506-14 <br>(1983).  It is reasonable to conclude that in adopting a rule based <br>on Louisiana law, the Puerto Rico Legislative Assembly intended for <br>the rule to be interpreted in a similar manner.  See Garca v. <br>Northern Assurance Co., 92 P.R. Dec. 245, 250-53 (1965) (relying on <br>Louisiana case law in order to interpret P.R. Ins. C. art. 20.030 <br>because it was derived from Louisiana law). <br>          In sum, we conclude that an insured defendant is <br>solidarily liable with its liability insurance company.  Thus, the <br>timely interruption of prescription as to UAC had a like effect as <br>to its insured, Prez y Ca.  See P.R. Civ. C. art. 1874, P.R. Laws <br>Ann. tit. 31,  5304.  Accordingly, we find that the district court <br>erred in dismissing as time-barred Tokyo Marine's cause of action <br>based on the damage to the vehicles in the M/V ORION HIGHWAY <br>shipment.   <br>          In the normal course of events, we would remand this case <br>for further proceedings.  In this case, however, the district court <br>had already made a finding as to amount of the damages to the <br>vehicles in the M/V ORION HIGHWAY shipment, setting the finding <br>aside only because the court determined that the claim was time- <br>barred.  Specifically, the district court found that the damages <br>accruing under such claim amounted to $90,500.  We therefore amend <br>the judgment for Tokyo Marine to increase its award by $90,500, for <br>a total of $334,030. <br>III.  Finding of Liability and Award of Damages <br>          Prez y Ca. raises on appeal a number of arguments as to <br>why the district court's findings of liability and award of damages <br>were erroneous.  In particular, Prez y Ca. contends that the <br>district court erred in determining that Prez y Ca. caused the <br>paint damage to the cars, in failing to determine that the docking <br>permit application absolved it of any liability for damage to the <br>vehicles, in failing to determine that Tokyo Marine's insured, <br>Mitsubishi, was comparatively negligent in failing to mitigate <br>damages, and in assessing special damages.  All of these arguments, <br>except for the one concerning interpretation of the docking permit <br>application, are challenges to the district court's findings of <br>fact.  We review such findings only for clear error, see Fed. R. <br>Civ. P. 52(a), and find such error only where we are firmly <br>convinced that a mistake has been made, see Strahan v. Coxe, 127 <br>F.3d 155, 172 (1st Cir. 1997). <br>          After reviewing the evidence, we conclude that the <br>district court's findings of liability and damages were not clearly <br>erroneous.  There was evidence before the court supporting its <br>conclusions that the ship painting operations caused the damage to <br>the cars, that there was no alternative location where Mitsubishi <br>could have stored the vehicles, and that Mitsubishi mitigated <br>damages by promptly restoring the vehicles to their original <br>condition, thereby preventing further damages such as decreased <br>sales.  Similarly, there was evidence to support the court's <br>finding that the amounts paid by Mitsubishi to Professional Car <br>Paint, the company that repaired the vehicles, were reasonable. <br>          Prez y Ca. had also argued that liability was <br>foreclosed by clause 9 of the docking permit application, which <br>stated that "Prez assumes no responsibility for the safety of the <br>cargo or equipment handled by the applicant . . . while this cargo <br>is being handled or in storage in the facilities of Prez."  Under <br>Puerto Rico law, however, such release clauses are interpreted <br>against exoneration because releases from liability for future <br>negligent conduct are not favored.  See Cabrera v. Doval, 76 P.R. <br>Dec. 777, 781 (1954).  Thus, such a clause will release a party <br>from liability for future negligence only where the clause clearly <br>and explicitly states so.  We agree with the district court that <br>clause 9 did not meet this standard. <br>IV.  Award of Attorneys' Fees <br> <br>          Rules 44.1(d) and 44.3(b) of the Puerto Rico Rules of <br>Civil Procedure require trial courts to award attorney's fees and <br>interest against parties that have litigated "obstinately or <br>frivolously."  P.R. Laws Ann. tit. 32, app. III R. 44.1(d), <br>44.3(b).  "The purpose behind the rules is to penalize 'a losing <br>party that because of his stubbornness, obstinacy, rashness, and <br>insistent frivolous attitude has forced the other party to <br>needlessly assume the pains, costs, efforts, and inconveniences of <br>a litigation.'"  Dopp v. Pritzker, 38 F.3d 1239, 1253 (1st Cir. <br>1994) (quoting Fernndez v. San Juan Cement Co., 118 P.R. Dec. 713, <br>718 (1987)).  The district court below found that Prez y Ca. had <br>been obstinate in this litigation and was therefore liable for <br>attorneys' fees.  Reviewing this determination for abuse of <br>discretion, see Dopp, 38 F.3d at 1253, we find none. <br>          The decision of the district court is affirmed in part, <br>reversed in part, and amended as to damages, as discussed above.  <br>Costs are awarded to the plaintiff.</pre>

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