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 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,

(1st Cir. 2000). Evidentiary

rulings are often said to be tested for "a clear abuse of

discretion," EEOC v. Green,

(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.

- 2 - 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."

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.

As understood by the Supreme Court of Puerto Rico, and 1

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.,

(1st Cir. 1998) (citation omitted). - 3 - 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,

(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.,

(1st Cir. 2009) (citing Tokyo Marine

& Fire Ins. Co.,

). Assuming, as the district court

- 4 - did, that appellants called CSM, their claims lacked the

specificity required to meet their burden. See Kery v. Am.

Airlines, Inc.,

(D.P.R. 1995) (citing

Fernandez v. Chardon,

(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,

, 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

2Additionally, 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.,

(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."). - 5 - Teamsters Union, Local No. 59 v. Superline Transp. Co.,

(1st Cir. 1992). None as raised here warrants an exception.

Affirmed.

- 6 -