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Hagen v. Faherty2/18/2003
nt Faherty."
PERTINENT FINDINGS AND CONCLUSIONS OF THE DISTRICT COURT
Among the facts the district court found are that, at all times pertinent, Faherty was employed, supervised, and paid by UNMH. It also found that either SJRMC or ICC provided an identification badge to Faherty; all of the physicians who worked with Faherty at the ICC were employees of SJRMC; all records for patients seen by Faherty at ICC remained at ICC, and none of Faherty's ICC patients were sent to UNMH; there was nothing on the ICC building to alert patients that a UNMH physician was practicing there; Faherty did not identify himself as a UNMH employee to the Hagens in October 1998; there was nothing on the ICC records of Nathan's treatment that indicated that Faherty was an employee of UNMH; all appearances indicated that Faherty was an employee of the ICC on October 20 and 21, 1998; and the Hagens relied on these appearances.
The district court concluded that no reasonable person would have concluded that on October 20 and 21, 1998, Faherty was an employee of UNMH. Relying on Lopez, it concluded that right and justice demand that Faherty be estopped from claiming the two-year statute of limitations of the Tort Claims Act. See Lopez, 1996-NMSC-071, 17-21 (concluding that the state may be estopped from asserting a notice-of-claims statute as a defense if it held itself out to the public as something other than a state entity).
FAHERTY'S ARGUMENTS
Faherty notes that it is undisputed that he is a public employee and that the Hagens filed their claim well after the two-year limitations period had lapsed. He argues that he, as a public employee, is covered by the provisions of the Tort Claims Act, which includes a statute of limitations of two years and which language protects a public employee working in any hospital, not just a public hospital. See NMSA 1978, ยง 41-4-9 (1977). He further argues that the statute does not require that public employees give notice to third parties of their employment status. He also argues that estoppel cannot be successfully asserted to lengthen a statutorily created right of recovery, see Perry v. Staver, 81 N.M. 766, 769, 473 P.2d 380, 383 (Ct. App. 1970), and that the principles of equitable tolling do not apply because remedies must be found strictly within the confines of the pertinent statute. See Estate of Gutierrez v. Albuquerque Police Dep't, 104 N.M. 111, 117, 717 P.2d 87, 93 (Ct. App. 1986), overruled by Bracken v. Yates Petroleum Corp., 107 N.M. 463, 466, 760 P.2d 155, 158 (1988). Faherty finally argues that even if the district court had the authority to equitably estop him from asserting the statute of limitations defense of the Tort Claims Act, the district court did not make any findings as to the essential elements of estoppel, as required by Lopez, 1996-NMSC-071, 18.
DISCUSSION
Contrary to Faherty's assertion, our courts have permitted equitable tolling of statutes of limitations in certain circumstances outside of the confines of the particular statute. For example, this Court has held that fraudulent concealment can toll the statute of limitations of the Tort Claims Act. See Armijo v. Regents of Univ. of N.M., 103 N.M. 183, 187, 704 P.2d 437, 441 (Ct. App. 1984), rev'd in part on other grounds, 103 N.M. 174, 176, 704 P.2d 428, 430 (1985). In Bracken, 107 N.M. at 466, 760 P.2d at 158, our Supreme Court overruled the precedent in Estate of Gutierrez in determining that the statute of limitations in the Workers' Compensation Act can be tolled for claims asserted in cases that have been dismissed for improper venue. In an analogous circumstance, this Court has also tolled the notice requirement in
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