{ "id": 4362508, "name": "KIMBERLY MONTA\u00d1O, Plaintiff-Appellee, v. ELDO FREZZA, M.D., Defendant-Appellant, and LOVELACE INSURANCE COMPANY, a domestic For-Profit Corporation, Defendant", "name_abbreviation": "Monta\u00f1o v. Frezza", "decision_date": "2015-06-19", "docket_number": "No. 35,297; No. 35,214; Docket No. 32,403", "first_page": "161", "last_page": "179", "citations": [ { "type": "official", "cite": "2015-NMCA-069" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "2006 Sup. Ct. Rev. 249", "category": "journals:journal", "reporter": "Sup. Ct. Rev.", "pin_cites": [ { "page": "291", "parenthetical": "stating that one approach employed in comity analyses \"involves ignoring defendant-state forum limitation provisions, notice and time limits, and liability and damages limitations, and applying the forum's law of state suability.\" (footnotes omitted)" } ], "opinion_index": 0 }, { "cite": "2004 ND 179", "category": "reporters:state", "reporter": "ND", "case_ids": [ 9182775 ], "weight": 2, "pin_cites": [ { "page": "\u00b6 11" }, { "page": "251" } ], "opinion_index": 0, "case_paths": [ "/nw2d/687/0247-01" ] }, { "cite": "617 N.W.2d 602", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 11209499 ], "year": 2000, "pin_cites": [ { "page": "607", "parenthetical": "holding that it was appropriate to apply Minnesota's municipal tort liability laws as a measure of the extent of a Wisconsin teacher's monetary liability" } ], "opinion_index": 0, "case_paths": [ "/nw2d/617/0602-01" ] }, { "cite": "889 S.W.2d 427", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10007109 ], "year": 1994, "pin_cites": [ { "page": "430, 432", "parenthetical": "same" } ], "opinion_index": 0, "case_paths": [ "/sw2d/889/0427-01" ] }, { "cite": "952 S.W.2d 53", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 11898141 ], "year": 1997, "pin_cites": [ { "page": "56", "parenthetical": "same" } ], "opinion_index": 0, "case_paths": [ "/sw2d/952/0053-01" ] }, { "cite": "331 S.W.3d 840", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 7322972 ], "year": 2011, "pin_cites": [ { "page": "846, 848", "parenthetical": "recognizing that \"the operation of section 101.101 [when the plaintiff did not discover the injury until after six months had passed] appears harsh and unfair\"" } ], "opinion_index": 0, "case_paths": [ "/sw3d/331/0840-01" ] }, { "cite": "96 N.M. 144", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577380 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/96/0144-01" ] }, { "cite": "1981-NMCA-059", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 29" } ], "opinion_index": 0 }, { "cite": "2007-NMSC-003", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3669570 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 19" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0154-01" ] }, { "cite": "934 S.W.2d 164", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10009154 ], "year": 1996, "pin_cites": [ { "page": "174", "parenthetical": "\"[T]he discovery rule does not apply to claims made under the [TTCA].\"" } ], "opinion_index": 0, "case_paths": [ "/sw2d/934/0164-01" ] }, { "cite": "431 S.W.3d 750", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 6944089 ], "year": 2014, "pin_cites": [ { "page": "754", "parenthetical": "\"The failure to give notice under [S]ection 101.101 requires dismissal of a suit.\"" } ], "opinion_index": 0, "case_paths": [ "/sw3d/431/0750-01" ] }, { "cite": "105 N.M. 554", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1599026 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/105/0554-01" ] }, { "cite": "1987-NMCA-026", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 18" } ], "opinion_index": 0 }, { "cite": "137 F. Supp. 2d 782", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 11110747 ], "year": 2001, "pin_cites": [ { "page": "820" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/137/0782-01" ] }, { "cite": "Tex. Civ. Prac. & Rem. Code Ann. \u00a7\u00a7 101.002", "category": "laws:leg_statute", "reporter": "Tex. Code Ann.", "opinion_index": 0 }, { "cite": "2008-NMCA-053", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3783911 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 14" } ], "opinion_index": 0, "case_paths": [ "/nm/143/0786-01" ] }, { "cite": "336 S.E.2d 464", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 2166829 ], "year": 1985, "pin_cites": [ { "page": "465", "parenthetical": "holding that refusal to apply the sued state's law would permit forum shopping" } ], "opinion_index": 0, "case_paths": [ "/sc/286/0574-01" ] }, { "cite": "2007-NMCA-149", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3784522 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 34" } ], "opinion_index": 0, "case_paths": [ "/nm/143/0036-01" ] }, { "cite": "857 So. 2d 611", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9085028 ], "pin_cites": [ { "page": "622" } ], "opinion_index": 0, "case_paths": [ "/so2d/857/0611-01" ] }, { "cite": "303 P.3d 814", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMSC-022", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4334083 ], "opinion_index": 0, "case_paths": [ "/nm-app/4/0317-01" ] }, { "cite": "269 P.3d 931", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMCA-009", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4188384 ], "pin_cites": [ { "page": "\u00b6 25" } ], "opinion_index": 0, "case_paths": [ "/nm-app/1/0161-01" ] }, { "cite": "180 S.W.3d 287", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 8996566 ], "year": 2005, "pin_cites": [ { "page": "298" } ], "opinion_index": 0, "case_paths": [ "/sw3d/180/0287-01" ] }, { "cite": "934 S.W.2d 723", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10022310 ], "year": 1996, "pin_cites": [ { "page": "727", "parenthetical": "affirming dismissal of an action under Louisiana law and stating, \"Louisiana's waiver of sovereign immunity is more extensive than that of Texas, yet we cannot say it violates our public policy\"" } ], "opinion_index": 0, "case_paths": [ "/sw2d/934/0723-01" ] }, { "cite": "440 S.E.2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 833512 ], "year": 1993, "pin_cites": [ { "page": "205", "parenthetical": "stating that where two statutes' provisions were \"conceptually identical\" the forum state \"should recognize and give effect to the legislatively declared policy of [the other state] as a matter of comity\"" } ], "opinion_index": 0, "case_paths": [ "/ga-app/211/0564-01" ] }, { "cite": "611 F. Supp. 2d 1190", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 4215389 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "1212", "parenthetical": "discussing the Sam holding and concluding that a \"case-by-case approach to the comity analysis\" is required" }, { "page": "1212", "parenthetical": "\"Rather than all-or-nothing, a court must assure that, for each claim for which it applies another state's sovereign immunity rules, the application of the other state's rules does not offend the state's public policy in a substantial way.\"" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/611/1190-01" ] }, { "cite": "2011 WL 3557239", "category": "reporters:specialty_west", "reporter": "WL", "weight": 4, "year": 2011, "pin_cites": [ { "page": "*2", "parenthetical": "comparing the jurisdiction and venue provisions of the NMTCA and the TTCA and applying the NMTCA" }, { "page": "*1" }, { "page": "*1" } ], "opinion_index": 0 }, { "cite": "609 S.W.2d 534", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9942135 ], "year": 1980, "pin_cites": [ { "page": "537", "parenthetical": "applying New Mexico law on interspousal immunity" } ], "opinion_index": 0, "case_paths": [ "/sw2d/609/0534-01" ] }, { "cite": "59 N.M. 433", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1589298 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/59/0433-01" ] }, { "cite": "1955-NMSC-063", "category": "reporters:neutral", "reporter": "NMSC", "weight": 2, "pin_cites": [ { "page": "\u00b6 7" }, { "page": "\u00b6 7" } ], "opinion_index": 0 }, { "cite": "230 A.D.2d 253", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 316069 ], "year": 1997, "pin_cites": [ { "page": "268" } ], "opinion_index": 0, "case_paths": [ "/ad2d/230/0253-01" ] }, { "cite": "749 P.2d 6", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 1433962 ], "weight": 5, "year": 1988, "pin_cites": [ { "page": "7, 10" }, { "page": "10" }, { "parenthetical": "McFarland, J., dissenting" }, { "page": "10" } ], "opinion_index": 0, "case_paths": [ "/kan/242/0442-01" ] }, { "cite": "108 S.W.3d 319", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 9110809 ], "weight": 7, "year": 2002, "pin_cites": [ { "page": "321", "parenthetical": "citation omitted" }, { "page": "321" }, { "page": "322" }, { "page": "322" } ], "opinion_index": 0, "case_paths": [ "/sw3d/108/0319-01" ] }, { "cite": "538 U.S. 488", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9031046 ], "weight": 9, "year": 2003, "pin_cites": [ { "page": "492" }, { "page": "493-94", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "497" }, { "page": "498" }, { "page": "499" }, { "page": "493", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "493-94" } ], "opinion_index": 0, "case_paths": [ "/us/538/0488-01" ] }, { "cite": "440 U.S. 410", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6183342 ], "weight": 6, "year": 1979, "pin_cites": [ { "page": "412-13" }, { "page": "421" }, { "page": "422" }, { "page": "425" }, { "page": "425", "parenthetical": "stating that the Court has \"presumed that the [s]tates intended to adopt policies of broad comity toward one another [based on] state policy\"" } ], "opinion_index": 0, "case_paths": [ "/us/440/0410-01" ] }, { "cite": "74 Calif. L. Rev. 1447", "category": "journals:journal", "reporter": "Calif. L. Rev.", "year": 1986, "pin_cites": [ { "page": "1449-50" } ], "opinion_index": 0 }, { "cite": "657 F. Supp. 173", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 5718606 ], "year": 1987, "pin_cites": [ { "page": "175-76" } ], "opinion_index": 0, "case_paths": [ "/f-supp/657/0173-01" ] }, { "cite": "100 N.M. 363", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588619 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/nm/100/0363-01" ] }, { "cite": "1983-NMCA-110", "category": "reporters:neutral", "reporter": "NMCA", "year": 1987, "pin_cites": [ { "page": "\u00b6 9" } ], "opinion_index": 0 }, { "cite": "1997-NMCA-103", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 17339 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 18" }, { "page": "\u00b6 21" } ], "opinion_index": 0, "case_paths": [ "/nm/124/0119-01" ] }, { "cite": "119 N.M. 609", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1561326 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/119/0609-01" ] }, { "cite": "1995-NMSC-025", "category": "reporters:neutral", "reporter": "NMSC", "weight": 5, "pin_cites": [ { "page": "\u00b6 13" }, { "page": "\u00b6 14" }, { "page": "\u00b6 13" }, { "page": "\u00b6 10" } ], "opinion_index": 0 }, { "cite": "2006-NMCA-111", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3670249 ], "weight": 4, "pin_cites": [ { "page": "\u00b6\u00b6 12, 14" }, { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0293-01" ] }, { "cite": "2006-NMSC-022", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 2543709 ], "weight": 17, "pin_cites": [ { "page": "\u00b6 9" }, { "page": "\u00b6\u00b6 1, 6, 29" }, { "page": "\u00b6 8" }, { "page": "\u00b6 23" }, { "page": "\u00b6 22" }, { "page": "\u00b6 12", "parenthetical": "discussing the Sam holding and concluding that a \"case-by-case approach to the comity analysis\" is required" }, { "page": "\u00b6 16" }, { "page": "\u00b6 22" }, { "page": "\u00b6 22" }, { "page": "\u00b6 22" }, { "page": "\u00b6 27" }, { "page": "\u00b6\u00b6 9, 12" }, { "parenthetical": "notes and comments" } ], "opinion_index": 0, "case_paths": [ "/nm/139/0474-01" ] }, { "cite": "Tex. Civ. Prac. & Rem. Code Ann. \u00a7 101.106", "category": "laws:leg_statute", "reporter": "Tex. Code Ann.", "year": 2013, "pin_cites": [ { "page": "(f)" } ], "opinion_index": 0 }, { "cite": "1998-NMSC-007", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 834305 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 21, n.5" } ], "opinion_index": 0, "case_paths": [ "/nm/125/0059-01" ] }, { "cite": "1999-NMCA-111", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 106515 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0001-01" ] }, { "cite": "2001-NMCA-043", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 352307 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 15" }, { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0563-01" ] }, { "cite": "114 N.M. 607", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 731679 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/114/0607-01" ] }, { "cite": "1992-NMSC-054", "category": "reporters:neutral", "reporter": "NMSC", "weight": 2, "pin_cites": [ { "page": "\u00b6 16" }, { "page": "\u00b6 20" } ], "opinion_index": 0 }, { "cite": "1999-NMSC-043", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106517 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 7" }, { "page": "\u00b6 9" }, { "page": "\u00b6 14" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0328-01" ] }, { "cite": "280 S.W.3d 345", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 6947037 ], "year": 2008, "pin_cites": [ { "page": "348", "parenthetical": "stating that the center is a governmental unit" } ], "opinion_index": 0, "case_paths": [ "/sw3d/280/0345-01" ] }, { "cite": "2006-NMSC-022", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 2543709 ], "weight": 11, "pin_cites": [ { "page": "\u00b6\u00b6 22-28" }, { "page": "\u00b6 7" }, { "page": "\u00b6 6" }, { "page": "\u00b6 7" }, { "page": "\u00b6 3" }, { "page": "\u00b6\u00b6 1, 20" }, { "page": "\u00b6 17" }, { "page": "\u00b6\u00b6 13, 20, 27" }, { "page": "\u00b6 12" }, { "page": "\u00b6 9" } ], "opinion_index": 2, "case_paths": [ "/nm/139/0474-01" ] }, { "cite": "2005-NMCA-122", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 2548529 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 6-7" } ], "opinion_index": 2, "case_paths": [ "/nm/138/0496-01" ] }, { "cite": "28 La. 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BUSTAMANTE, Judge", "I CONCUR:", "CYNTHIA A. FRY, Judge", "JONATHAN B. SUTIN, Judge" ], "parties": [ "KIMBERLY MONTA\u00d1O, Plaintiff-Appellee, v. ELDO FREZZA, M.D., Defendant-Appellant, and LOVELACE INSURANCE COMPANY, a domestic For-Profit Corporation, Defendant." ], "opinions": [ { "text": "OPINION\nBUSTAMANTE, Judge.\n{1} This case is one of three presently before the Court of Appeals that involve the asserted medical negligence of then Texas-based physician Dr. Eldo Frezza. See Gonzales v. Frezza, COA No. 32,606, and Gallegos v. Frezza, COA No. 32,605. The issue presented in this case is whether Dr. Frezza should enjoy the immunity granted by the Texas Tort Claims Act (TTCA) when he is sued by a New Mexico resident in a New Mexico court. We conclude that under principles of comity Dr. Frezza is entitled to immunity, but only so far as that immunity is consistent with the New Mexico Tort Claims Act (NMTCA). We also conclude that the district court\u2019s order was too broadly worded. Hence, we affirm in part and vacate in part the district court\u2019s ruling and remand for further proceedings.\nBACKGROUND\n{2} Like the plaintiffs in the other two cases, Ms. Monta\u00f1o, a New Mexico resident, traveled to Lubbock, Texas to undergo bariatric surgery by Dr. Frezza at the Texas Tech University Health Sciences Center (the Center). Ms. Monta\u00f1o had been told by her insurer, Lovelace Insurance Company (Lovelace), that Dr. Frezza was the only bariatric surgeon for whom it would provide coverage. For approximately six years, Ms. Monta\u00f1o traveled to Lubbock for follow-up care and treatment by Dr. Frezza for complications arising from the surgery. Eventually, testing by another doctor revealed gastrointestinal bleeding caused by an \u201ceroding permanent suture.\u201d That doctor performed corrective surgery.\n{3} At all times relevant to this case, Dr. Frezza was an employee of the Center, which is a governmental unit of the state of Texas. See Tex. Tech Univ. Health Scis. Ctr. v. Ward, 280 S.W.3d 345, 348 (Tex. App. 2008) (stating that the center is a governmental unit). The Center established Texas Tech Physician Associates (TTPA) to administer managed care contracts for its physicians, including the contract with Lovelace. Although not a party to the contract, Dr. Frezza was a \u201crepresented physician\u201d subject to the terms of the contract. Additional facts are included in our discussion.\n{4} Ms. Monta\u00f1o filed suit against Dr. Frezza and Lovelace, alleging breach of contract and negligent referral by Lovelace, medical negligence by Dr. Frezza, violation of the New Mexico Unfair Practices Act by both Dr. Frezza and Lovelace, and lack of informed consent. Dr. Frezza filed two motions for dismissal. One motion asserted that New Mexico did not have personal jurisdiction over him. In the other he argued that as a Texas public employee he was immune from suit under the TTCA. See Rule 1-012(B)(2), (6) NMRA. The district court determined that New Mexico law, not the TTCA, should be applied. The district court also concluded that Dr. Frezza had sufficient contacts with New Mexico such that New Mexico courts court assert personal jurisdiction over him. The district court then denied both motions. Dr. Frezza filed a motion to reconsider the denial of his motion to dismiss based on personal jurisdiction. The motion to reconsider is still pending below.\n{5} Dr. Frezza petitioned this Court for a writ of error under the collateral order doctrine, arguing that the district court erred in concluding that New Mexico law applied. See Rule 12-503 NMRA. The petition, which addresses only this issue, was granted.\nDISCUSSION\nA. The Petition for Writ of Error was Appropriately Granted\n{6} We begin by addressing whether the district court\u2019s decision to apply New Mexico law is appropriate for appellate review under the collateral order doctrine. Generally, appeal lies only from a \u201cfinal judgment or decision, any interlocutory order or decision which practically disposes of the merits of the action, or any final order after entry of judgment which affects substantial rights[.]\u201d NMSA 1978, \u00a7 39-3-2 (1966). \u201cThe principle of finality [evinced in this statute] serves a multitude of purposes, including the prevention of piecemeal appeals and the promotion of judicial economy.\u201d Handmaker v. Henney, 1999-NMSC-043, \u00b6 7, 128 N.M. 328, 992 P.2d 879. An exception to this preference for finality is known as the collateral order doctrine, \u201cwhose reach is limited to trial court orders affecting rights that will be irretrievably lost in the absence of an immediate appeal.\u201d Carrillo v. Rostro, 1992-NMSC-054, \u00b6 16, 114 N.M. 607, 845 P.2d 130 (internal quotation marks and citation omitted). To permit review under the doctrine, \u201c(1) the order must finally determine the disputed question; (2) it must concern an issue that is entirely separate from the merits of the claim; and (3) there must be no effective remedy by appeal.\u201d Handmaker, 1999-NMSC-043, \u00b6 9.\n{7} Our cases have held that where an order addresses a party\u2019s immunity from suit, as opposed to immunity from liability, it satisfies the collateral order doctrine criteria. See Campos de Suenos, Ltd. v. Cnty. of Bernalillo, 2001-NMCA-043, \u00b6 15, 130 N.M. 563, 28 P.3d 1104 (stating, \u201cWeissue writs of error to review immunity from suit cases because we consider them collateral order[s] affecting interests that would be irretrievably lost if the case proceeded to trial.\u201d (alteration in original) (internal quotation marks and citation omitted)); accord Handmaker, 1999-NMSC-043, \u00b6 14; Carrillo, 1992-NMSC-054, \u00b6 20; Sugg v. Albuquerque Pub. Sch. Dist., 1999-NMCA-111, \u00b6 8, 128 N.M. 1, 988 P.2d 311; cf. Carmona v. Hagerman Irrigation Co., 1998-NMSC-007, \u00b6 21, n.5, 125 N.M. 59, 957 P.2d 44 (\u201cThe [NMTCA] provides immunity from liability, not absolute immunity from suit, so the collateral order exception to the finality of judgments rule would not apply in this case.\u201d).\n{8} To the extent that Ms. Montano argues that the writ of error was improvidently granted because the collateral order doctrine criteria were not satisfied, we disagree. Ms. Montafio contends that the real question before the district court depended on the nature of TTPA\u2019s contract with Lovelace and thus the district court\u2019s order (1) did not resolve the question, and (2) was dependent on the merits of the case. But the question before the district court was a basic one: whether New Mexico or Texas law should apply. As will be seen in our discussion below, the answer to this question does not involve detailed examination of the facts related to Dr. Frezza\u2019s practice. Application of Texas law here would result in dismissal of Ms. Montafio\u2019s suit against Dr. Frezza because the TTCA does not permit suits against government employees acting within their employment. See Tex. Civ. Prac. & Rem. Code Ann. \u00a7 101.106(f) (West 2013). Because the choice of law encompasses whether Dr. Frezza is immune from suit, the decision necessarily implicates a right that would be \u201cirretrievably lost\u201d if not heard by this Court. See Campos de Suenos, Ltd., 2001-NMCA-043, \u00b6 15. We conclude that the district court\u2019s order is properly before us for review.\nB. New Mexico Law Applies\n{9} We turn to whether the district court properly analyzed whether New Mexico or Texas law governs Ms. Montafio\u2019s suit. In doing so, we \u201creview the district court\u2019s decision to use a comity analysis de novo, and then review a district court\u2019s application of comity for abuse of discretion.\u201d Sam v. Sam, 2006-NMSC-022, \u00b6 9, 139 N.M. 474, 134 P.3d 761. Dr. Frezza does not challenge the district court\u2019s decision to embark on its comity analysis. Thus, as to the comity issue, we only determine whether the district court\u2019s decision exceeded the bounds of its discretion. We begin, however, by addressing the \u201cplace-of-the-wrong\u201d rule, and then address whether the district court properly analyzed whether Texas law should apply under principles of comity.\n{10} Although some states have adopted the \u201cmost significant relationship\u201d approach to the choice of law, the New Mexico Supreme Court has continued to endorse the \u201cplace-of-the-wrong\u201d rule in choice of law cases. Terrazas v. Garland & Loman, Inc., 2006-NMCA-111, \u00b6\u00b6 12, 14, 140 N.M. 293, 142 P.3d 374 (stating that \u201cNew Mexico courts have steadfastly applied the lex loci delicti rule in tort cases\u201d); see Restatement (Second) of Conflict of Laws \u00a7 6 (1971); 15A C.J.S. Conflict of Laws \u00a7 38 (2014). Under this rule, \u201cthe substantive rights of the parties are governed by the law of the place where the wrong occurred.\u201d Terrazas, 2006-NMCA-111, \u00b6 12. \u201cThe place of the wrong ... is the location of the last act necessary to complete the injury.\u201d Torres v. State, 1995-NMSC-025, \u00b6 13, 119 N.M. 609, 894 P.2d 386 (internal quotation marks and citation omitted).\n{11} But the place-of-the-wrong rule may give way when policy considerations outweigh its application. See In re Estate of Gilmore, 1997-NMCA-103, \u00b6 18, 124 N.M. 119, 946 P.2d 1130 (\u201c[P]olicy considerations may override the place-of-the-wrong rule.\u201d). For instance, in Torres, the New Mexico Supreme Court held that New Mexico law should apply where the alleged negligence of the Albuquerque Police Department resulted in a death in California because \u201cpublic policy dictates that New Mexico law determine the existence of duties and immunities on the part of New Mexico officials.\u201d 1995-NMSC-025, \u00b6 14 (alteration, internal quotation marks, and citation omitted). Similarly, in Sam, the New Mexico Supreme Court reversed the Court of Appeals, which had relied on the place-of-the-wrong rule to conclude that New Mexico law should apply where the plaintiff sued an Arizona governmental unit over an accident that occurred in New Mexico. 2006-NMSC-022, \u00b6\u00b6 1, 6, 29. The general rule derived from these cases is that \u201cwe begin with a strong presumption in favor of application of the place-of-the-wrong rule, but we will not close our eyes to compelling policy arguments for departure from the general rule in specific circumstances.\u201d In re Estate of Gilmore, 1997-NMCA-103, \u00b6 21.\n{12} The district court determined that \u201cNew Mexico is the location of the last act necessary to complete the injury because [Ms. Montano\u2019s] injuries manifested themselves in New Mexico.\u201d Based on its decision that the injury manifested itself in New Mexico, the district court concluded that \u201cNew Mexico law applies\u201d to the case. We perceive no error in the district court\u2019s Restatement-based place-of-the-wrong analysis. See Torres, 1995-NMSC-025, \u00b6 13; Roberts v. Piper Aircraft Corp., 1983-NMCA-110, \u00b6 9, 100 N.M. 363, 670 P.2d 974; Beh v. Ostergard, 657 F. Supp. 173, 175-76 (D.N.M. 1987).\n{13} However, the outcome of the place-of-the-wrong analysis does not end the matter. The district court understood this. Recognizing that Dr. Frezza was an employee of the State of Texas and potentially immune from suit under Texas\u2019s TTCA, the district court went on to conduct an analysis of whether it should apply Texas law as a matter of comity. The presence of a defendant who can colorably assert his status as a Texas state actor entitled to the protection of Texas\u2019s sovereignty as expressed in the TTCA required the district court \u2014 and requires us \u2014 to engage in a comity analysis. In this circumstance, the comity analysis all but displaces the place-of-the-wrong analysis in resolving the issues before us. Thus, we move on to comity.\n{14} The concept of comity as a tool for deciding choice-of-law issues in the United States has a long history, most of which is not necessary to recount here. See generally Holly Sprague, Choice of Law: A Fond Farewell to Comity and Public Policy, 74 Calif. L. Rev. 1447, 1449-50 (1986). We do note that comity concerns play a role in the Restatement (Second) formulation of a conflict-of-law analysis. See Restatement (Second) of Conflict of Laws \u00a7 6 (1971). The role of comity in actions against states or their employees in the courts of their sister states, however, was unexplained and unclear until the Supreme Court\u2019s opinion in Nevada v. Hall, 440 U.S. 410 (1979).\n{15} In Hall, a California resident sued the University of Nevada in the California courts for injuries he suffered in an auto collision that occurred in California. The California courts accepted jurisdiction of the case, and after a verdict was entered, refused to honor the statutory damages limit set by Nevada law for actions against Nevada governmental entities. Id. at 412-13. Hall held, as a matter of first impression, that there was nothing in the federal constitution preventing a state from being sued in another state, assuming personal and subject matter jurisdiction was otherwise appropriate. The Court held that nothing \u201cin Art. Ill authorizing the judicial power of the United States, or in the Eleventh Amendment limitation on that power, provide any basis, explicit or implicit, for this Court to impose limits on the powers of California exercised in this case.\u201d Id. at 421. The Court also held that the \u201cFull Faith and Credit Clause does not require a [s]tate to apply another [s]tate\u2019s law in violation of its own legitimate public policy.\" Id. at 422. Finally, the Court ruled that no other provision of the Constitution \u2014 including the Commerce Clause, the Extradition Clause, and the Privileges and Immunities Clause \u2014 supported any conclusion other than that \u201cone [s]tate\u2019s immunity from suit in the courts of another [s]tate is [nothing] other than a matter of comity.\u201d Id. at 425. The Supreme Court provided no guidance in Hall as to how the states could or should exercise this comity.\n{16} The Supreme Court again visited the issue of interstate immunity in the case of Franchise Tax Board of California v. Hyatt, 538 U.S. 488 (2003). In Hyatt, a Nevada resident sued a California tax collection agency in Nevada for damages, asserting both negligent and intentional torts. The trial court denied the California agency\u2019s motion to dismiss for lack of subject matter jurisdiction. The Nevada Supreme Court reversed in part, holding that the theories sounding in negligence should have been dismissed under comity principles, but concluding that the intentional tort claims could proceed to trial. 538 U.S. at 492. The Nevada Supreme Court acknowledged that California had granted its agency complete immunity from suit. Nevertheless, noting that Nevada does not provide immunity for acts taken in bad faith or for intentional torts, the Nevada Supreme Court held that \u201cNevada\u2019s interest in protecting its citizens from injurious intentional torts... committed by sister states\u2019 government employees should be accorded greater weight than California\u2019s policy favoring complete immunity for its taxation agency.\u201d 538 U.S. at 493-94 (internal quotation marks and citation omitted).\n{17} Inaunanimous opinion, the Supreme Court affirmed its holding in Hall that the \u201cConstitution does not confer sovereign immunity on [s]tates in the courts of sister [s]tates.\u201d Hyatt, 538 U.S. at 497. The Supreme Court also affirmed and strengthened its prior ruling that the Full Faith and Credit Clause does not require Nevada to honor California\u2019s statute, noting that:\nThere is no principled distinction between Nevada\u2019s interests in tort claims arising out of its university employee\u2019s automobile accident, at issue in Hall, and California\u2019s interests in the tort claims here arising out of its tax collection agency\u2019s residency audit.\nHyatt, 538 U.S. at 498.\n{18} As in Hall, the Supreme Court in Hyatt provided no guidance as to how the states should apply comity principles when resolving suits against sister states. It did observe that it saw no \u201cpolicy of hostility\u201d toward California by Nevada. See Hyatt, 538 U.S, at 499. Rather, it noted, Nevada had \u201csensitively applied principles of comity with a healthy regard for California\u2019s sovereign status, relying on the contours of Nevada\u2019s own sovereign immunity from suit as a benchmark for its analysis.\u201d Id.\n{19} Abstract descriptions of \u201ccomity\u201d are as varied as the opinions applying them. In Hyatt, for example, the Nevada Supreme Court phrased the principle as \u201can accommodation policy, under which the courts of one state voluntarily give effect to the laws and judicial decisions of another state out of deference and respect, to promote harmonious interstate relations}.]\u201d 538 U.S. at 493 (internal quotation marks and citation omitted). Closer to the case at hand, a Texas court described it as \u201ca principle under which the courts of one state give effect to the laws of another state or extend immunity to a sister sovereign, not as a rule of law, but rather out of deference or respect. It is a doctrine grounded in cooperation and mutuality.\u201d State of N.M. v. Caudle, 108 S.W.3d 319, 321 (Tex. App. 2002) (citation omitted)).\n{20} Even closer to home, in Sam, our Supreme Court described comity as \u201ca principle whereby a sovereign forum state recognizes and applies the laws of another state sued in the forum state\u2019s courts. The sovereign forum state has discretion whether or not to apply the laws of the other state.\u201d 2006-NMSC-022, \u00b6 8. These formulations emphasize the core concerns of comity \u2014 mutual respect and harmonious relationships while protecting the forum state\u2019s own policy choices \u2014 but they provide no specific guideposts to follow as the comity decision is made.\n{21} In Sam, our Supreme Court did provide guideposts. First, the Court set the stage by noting that comity should be extended to other states but only if doing so will not violate or undermine New Mexico\u2019s own important public policies. Id. \u00b6\u00b6 13, 21. Sam then suggested four factors our courts should take into account when \u201cdetermining whether extending immunity through comity would violate [New Mexico\u2019s] public policy.\u201d Id. \u00b6 22. In determining whether to extend immunity, courts should consider: \u201c(1) whether the forum state would enjoy similar immunity under similar circumstances, (2) whether the state sued has or is likely to extend immunity to other states, (3) whether the forum state has a strong interest in litigating the case, and (4) whether extending immunity would prevent forum shopping[.]\u201d Id. (citations omitted).\n{22} Unfortunately Sam does not provide any indication how the four factors should be weighed as between themselves. And, more importantly, Sam does not provide explicit guidance as to how or when courts should fold in the comparative public policy analysis which is central to deciding whether honoring the state\u2019s immunity law improperly contravenes our own public policy choices. It is not clear whether that discussion must be had within the parameters of each factor or whether it is more appropriately conducted separately and used as a bright backdrop when assessing the impact of the four factors.\n{23} Thus, we confess some confusion as to how Sam should be applied. We also perceive some confusion in the district court about the matter. As a drafting solution, we will deal with each factor on its terms, comparing and contrasting Texas and New Mexico law as appropriate, but we will also separately sum up the public policy implications of the factors and the differences in the two states\u2019 laws.\n{24} We first examine the district court\u2019s assessment of the four Sam factors for an abuse of discretion. See id. \u00b6 9. As to the first factor, the district court found that \u201cit is unlikely the State of Texas would extend immunity to the State of New Mexico under similar circumstances[.]\u201d This is not a correct formulation of the first factor. This factor was derived from Head v. Platte County, Missouri, 749 P.2d 6 (Kan. 1988), in which the Kansas Supreme Court considered whether to apply Missouri law in a suit between a Kansas resident and a Missouri county. Id. at 7, 10. The court concluded that application of Missouri law would afford Missouri defendants greater protections than Kansas provided to its own citizens. Id. at 10. It stated, \u201cIf Missouri has sovereign immunity within our borders, a Kansas resident would be denied all recovery for injury caused by Missouri agents in this state, even though if agents of the State of Kansas had committed the same act, recovery could be permitted under our [t]ort [cjlaims [a]ct.\u201d Id. (McFarland, J., dissenting); accord Morrison v. Budget Rent A Car Sys., 230 A.D.2d 253, 268 (N.Y. App. Div. 1997). Similarly, the Sam court\u2019s analysis under the first factor addressed whether \u201ca similar action brought against a New Mexico entity or government employee would be barred by the . . . [NMTCA].\u201d 2006-NMSC-022, \u00b6 23. Thus,in the context of this case, the first factor should be stated as follows: would a similar action against a New Mexico governmental entity or employee be barred by the NMTCA? The answer to this question is clearly \u201cno\u201d because, as we discuss in more detail below, contrary to the TTCA, the NMTCA permits suits against government employees. In addition, as we explain below, the TTCA\u2019s strict occurrence-based notice of claim provision would clearly preclude Ms. Montano\u2019s action, whereas the NMTCA notice provision allows for discovery-based calculation of time. We view both of these provisions as important aspects of New Mexico immunity law that merit protection.\n{25} Thus, although for different reasons, we agree with the district court that this factor weighs against enforcing the TTCA. See In re Clark\u2019s Will, 1955-NMSC-063, \u00b6 7, 59 N.M. 433, 285 P.2d 795 (stating that comity does not require \u201cthe courts of this state to extend to a citizen of another state a right or privilege that would not be extended to one of our own citizens in a matter of this kind\u201d).\n{26} The second factor is whether Texas has or will extend immunity to New Mexico. Sam, 2006-NMSC-022, \u00b6 22. Dr. Frezza relies on Caudle in support of his argument that the second factor weighs in favor of extending immunity. The district court found that Caudle \u201chas limited application in the context of this matter[.]\u201d We agree. In Caudle, Texas residents employed by the State of New Mexico alleged in a Texas court that their retirement plan provided by the State of New Mexico \u201cviolate [d] the . . . Texas Constitution and . . . the Fourteenth Amendment to the United States Constitution.\u201d 108 S.W.3d at 321. The Texas Court of Appeals began by stating that \u201cT exas should extend comity by recognizing the laws and judicial decisions of other states unless (1) the foreign state declines to extend comity to Texas or sister states under the same or similar circumstances, or (2) the foreign statute produces a result in violation of Texas\u2019[s] own legitimate public policy.\u201d Id. It concluded that since New Mexico had \u201cextended comity to its sister states[,]\u201d it would consider New Mexico a \u201ccooperative jurisdiction.\u201d Id. It then determined that since it is the responsibility of each state to determine the constitutionality of its own statutes, \u201c[i]t is . . . good public policy for Texas to avoid scrutinizing its sister states\u2019 statutes to determine their constitutionality under either the United States Constitution or the Texas Constitution.\u201d Id. at 322. The court consequently ordered the matter dismissed. Id.\n{27} Caudle is not dispositive of the second comity factor for two reasons. First, under Dr. Frezza\u2019s reasoning, Texas\u2019s determination to extend comity in one case would mean that it would have no reason to analyze whether to apply comity in any other contexts. In other words, the first case extending comity to New Mexico would settle the issue forever. But since the Texas courts have analyzed whether to apply comity in cases both before and after Caudle, this is clearly not the course Texas has taken. See, e.g., Robertson v. Estate of McKnight, 609 S.W.2d 534, 537 (Tex. 1980) (applying New Mexico law on interspousal immunity); N.M. State Univ. v. Winfrey, No. 11-10-00213-CV, 2011 WL 3557239, at *2 (Tex. App. Aug. 11, 2011) (comparing the jurisdiction and venue provisions of the NMTCA and the TTCA and applying the NMTCA). Nor does such an approach comport with the Sam court\u2019s characterization of the comity analysis as \u201cfact-intensive,\u201d indicating that the factors must be examined in the context of the circumstances of each case. 2006-NMSC-022, \u00b6 12; see City of Raton v. Ark. River Power Auth., 611 F. Supp. 2d 1190, 1212 (D.N.M. 2008) (discussing the Sam holding and concluding that a \u201ccase-by-case approach to the comity analysis\u201d is required). Second, the policy interest served by dismissal of the Caudle matter \u2014 that New Mexico courts should interpret the constitutionality of New Mexico\u2019s statutes \u2014 is entirely different from the policies at play here. See 108 S.W.3d at 322.\n{28} Winfrey, which is not cited by either party and was not considered by the district court, provides more compelling support for Dr. Frezza\u2019s position than Caudle. In Winfrey, the Texas Court of Appeals considered whether to apply the NMTCA as a matter of comity where a Texas resident sued New Mexico State University (NMSU) for damage done to his sheep when a weather balloon owned or operated by NMSU fell on his land in Texas. 2011 WL 3557239, at *1. NMSU moved for dismissal based on alack of jurisdiction, which the district court denied. Id. The court of appeals started its analysis by reiterating the two-part test for comity set out in Caudle, stating that \u201ccomity . . . will be applied to a cooperating state so long as the law of that state does not offend Texas public policy.\u201d Winfrey, 2011 WL 3557239, at *1. After determining that New Mexico was a cooperating state, the court examined the purpose of the NMTCA and TTCA and their provisions related to jurisdiction and venue. Id. at *1-2. It concluded, \u201cOur comparison of the[se] similar provisions leads to the conclusion that [NMSU has] satisfied the second prong of the principle of comity: the jurisdiction and venue provisions of the [NMTCA], as applicable in this case, do not violate the public policy of Texas.\u201d Id. The court concluded, therefore, that it should apply the NMTCA and that since the NMTCA (1) vested exclusive jurisdiction in the New Mexico district courts and (2) required that the suit be brought in Santa Fe County, the suit should be dismissed \u201cfor lack of jurisdiction.\u201d Id. at * 1,2 (internal quotation marks omitted); see NMSA 1978, \u00a7 41-4-18(B) (1976) (\u201cVenue for any claim against the state or its public employees, pursuant to the Tort Claims Act, shall be in the district court for the county in which a plaintiff resides, or in which the cause of action arose, or in Santa Fe county.\u201d).\n{29} Although Texas applied New Mexico law on jurisdiction and venue in Winfrey, the Winfrey holding does not compel us to conclude that Texas would apply the NMTCA\u2019s other provisions under the circumstances of this case. The Winfrey court\u2019s analysis was based on the similarity of the two acts\u2019 venue and jurisdiction requirements. Cf. Univ. of Iowa Press v. Urrea, 440 S.E.2d 203, 205 (Ga. Ct. App. 1993) (stating that where two statutes\u2019 provisions were \u201cconceptually identical\u201d the forum state \u201cshould recognize and give effect to the legislatively declared policy of [the other state] as a matter of comity\u201d). The court did not consider the portions of the NMTCA and TTCA at issue in this case, which are very different. Consequently, it is not clear whether Texas would extend immunity to New Mexico under the circumstances here. But see Hawsey v. La. Dep\u2019t of Soc. Servs., 934 S.W.2d 723, 727 (Tex. App. 1996) (affirming dismissal of an action under Louisiana law and stating, \u201cLouisiana\u2019s waiver of sovereign immunity is more extensive than that of Texas, yet we cannot say it violates our public policy\u201d); Greenwell v. Davis, 180 S.W.3d 287, 298 (Tex. App. 2005) (\u201cEven though the amounts of the waivers differ, applying Arkansas\u2019 limited waiver of sovereign immunity would not be contrary to Texas public policy. The mere fact that the law of the other state differs from Texas does not render it so contrary to Texas public policy that Texas courts will refuse to enforce it.\u201d (footnote omitted)). Although neither Caudle nor Winfrey are conclusive on this issue, we will assume without deciding that Texas would extend immunity to New Mexico in a similar situation. See Hall, 440 U.S. at 425(stating that the Court has \u201cpresumed that the [s]tates intended to adopt policies of broad comity toward one another [based on] state policy\u201d); Sam, 2006-NMSC-022, \u00b6 16 (acknowledging the presumption).\n{30} We turn to the third factor: \u201cwhether the forum state has a strong interest in litigating the case[.]\u201d Sam, 2006-NMSC-022, \u00b6 22. Although its interest is bounded by the limits of the NMTCA, id. \u00b6 25, \u201cNew Mexico has a particular interest in providing compensation or access to the courts to residents of the state.\u201d Id. \u00b6 26. Here, if Texas law applies, Ms. Montano would be left without any recourse against Dr. Frezza or his employer. This fact heightens New Mexico\u2019s interest in providing a forum. Cf. Flemma v. Halliburton Energy Servs., Inc., 2012-NMCA-009, \u00b6 25, 269 P.3d 931 (\u201cNew Mexico courts will apply New Mexico law to automobile insurance contracts that were formed in other states if innocent accident victims would be otherwise unprotected.\u201d), rev'd on other grounds, 2013-NMSC-022, 303 P.3d 814; Levert v. Univ. of Ill. at Urbana/Champaign ex rel. Bd. of Trustees, 2002-2679, pp. 17-18 (La. App. 1 Cir. 9/26/03), 857 So. 2d 611, 622 (holding that \u201cbecause [the] plaintiffs/appellants have recourse to individually seek full redress of their claims in [the sister state], [that state\u2019s] sovereign immunity law does not violate Louisiana\u2019s public or judicial policies\u201d). On the other hand, because Dr. Frezza is an employee of the State of Texas, that state also has an interest in the case. Cf. Zavala v. El Paso Cnty. Hosp. Dist, 2007-NMCA-149, \u00b6 34, 143 N.M. 36, 172 P.3d 173 (stating, in the context of a personal jurisdiction analysis, that because the defendant \u201c[h]ospital [wa]s not only located in Texas but . . . [was] also an entity of the government of the State of Texas[, i]t [was] . . . clear that Texas has a substantially stronger sovereignty interest [than New Mexico]\u201d). Weighing these competing interests, we conclude that the district court did not abuse its discretion in determining that \u201cthe State of New Mexico has equal or greater interest in litigating this matter than does the State of Texas[.]\u201d\n{31) The final factor is whether application of Texas law will prevent forum shopping. Sam, 2006-NMSC-022, \u00b6 22. Ms. Monta\u00f1o conceded below that it would, and the district court concluded that \u201cforum shopping would be diminished by an application of [Texas law].\u201d See Newberry v. Ga. Dep't of Indus. & Trade, 336 S.E.2d 464, 465 (S.C. 1985) (holding that refusal to apply the sued state\u2019s law would permit forum shopping). We discern no error in this conclusion by the district court.\n{32} In sum, the first and third factors weigh against applying the TTCA, whereas the second and fourth factors weigh in favor of it. Again, Sam does not provide guidance on how these factors should be balanced against each other or whether one factor should be weighed differently from the others. Conforming to Sam\u2019s approach, however, we start with the notion that New Mexico should recognize Dr. Frezza\u2019s immunity as expressed in the TTCA, unless doing so will violate substantial New Mexico policy. Put another way, whether to apply the TTCA depends on the bedrock question guiding the comity analysis: would application of Texas law in this case be contrary to New Mexico\u2019s public policies? See Sam, 2006-NMSC-022, \u00b6 22; City of Raton, 611 F. Supp. 2d at 1212 (\u201cRather than all-or-nothing, a court must assure that, for each claim for which it applies another state\u2019s sovereign immunity rules, the application of the other state\u2019s rules does not offend the state\u2019s public policy in a substantial way.\u201d).\n{33} We look to the NMTCA for an expression of our public policy as to tort claims against governmental bodies. See Torres, 1995-NMSC-025, \u00b6 10 (\u201c[I]t is the particular domain of the [Legislature, as the voice of the people, to make public policy.\u201d). In a legislative declaration accompanying the NMTCA, \u201c[t]he legislature recognize[s] the inherently unfair and inequitable results which occur in the strict application of the doctrine of sovereign immunity.\u201d NMSA 1978, \u00a7 41-4-2(A) (1976). It also recognizes that \u201cthe area within which the government has the power to act for the public good is almost without limit, and therefore government should not have the duty to do everything that might be done.\u201d Id. In enacting the NMTCA, therefore, \u201cthe [Legislature expressed its intent to achieve balance between the public policy supporting compensation of those injured by public employees and the public policy militating in favor of limiting government liability.\u201d Niederstadt v. Town of Carrizozo, 2008-NMCA-053, \u00b6 14, 143 N.M. 786, 182 P.3d 769.\n{34} A comparison of the NMTCA and the TTCA reveals that the balance struck by the New Mexico Legislature is substantively different from that struck by Texas legislators. See NMSA 1978, \u00a7\u00a7 41-4-1 to -30 (1976, as amended through 2013); Tex. Civ. Prac. & Rem. Code Ann. \u00a7\u00a7 101.002 to .109 (1985, as amended through 2013). Both statutes address the extent to which each state has waived its sovereign immunity. See \u00a7 41-4-2(A) (\u201c[I]t is declared to be the public policy of New Mexico that governmental entities and public employees shall only be liable within the limitations of the [NMTCA].\u201d); \u00a7 101.021. The NMTCA and TTCA are also similar in that they provide for limits on recovery (although the limits are different), see \u00a7 41-4-19 and \u00a7 101.023, and waive immunity for certain injuries arising from the operation of \u201c \u2018any motor vehicle, aircraft[,] or watercraft.\u2019 \u201d Section 41-4-5; see \u00a7 101-021(1)(A).\n{35} But there are stark differences between the statutes. For instance, the TTCA waives sovereign immunity in only three limited cases: \u201c(1) claims arising from the operation or use of motor-driven vehicles or equipment; (2) claims caused by a condition or use of tangible personal or real property; and (3) claims arising from premises defects.\u201d Paz v. Weir, 137 F. Supp. 2d 782, 820 (S.D. Tex. 2001); see \u00a7\u00a7 101.021, .022. In contrast, New Mexico has waived sovereign immunity for negligent conduct in eight different categories, including medical facilities, health care providers, law enforcement, public utilities, highways/streets, and airports, and does not limit liability to incidents involving motor vehicles or personal or real property. See \u00a7\u00a7 41-4-5 to -12.\n{36} The NMTCA and TTCA also differ dramatically in their provisions concerning the liability of individual government employees. The TTCA does not allow actions against employees in their individual or personal capacity. Under the TTCA, a suit naming a government employee must be dismissed upon the employee\u2019s motion, unless the plaintiff files an amended complaint naming the appropriate governmental unit instead of the employee within thirty days of the employee\u2019s motion. Section 101.106(f). There is no such limitation on suits against public employees in the NMTCA. See \u00a7 41-4-4(A), (B) (addressing waiver of immunity for public employees); Abalos v. Bernalillo Cnty. Dist. Attorney\u2019s Office, 1987-NMCA-026, \u00b6 18, 105 N.M. 554, 734 P.2d 794 (\u201cEach of the eight waivers listed in Sections 41-4-5 to -12 identifies public employees; it follows that one can sue the public employee and the agency or entity for whom the public employee works.\u201d).\n{37} Finally, while both statutes have a notice requirement, the requirements function very differently. In Texas, plaintiffs must file a notice within six months of \u201cthe day that the incident giving rise to the claim occurred.\u201d \u00a7 101.101(a). Failure to do so results in dismissal. See Univ. of Tex. Health Sci. Ctr. at Houston v. McQueen, 431 S.W.3d 750, 754 (Tex. App. 2014) (\u201cThe failure to give notice under [S]ection 101.101 requires dismissal of a suit.\u201d). This requirement functions as a statute of repose: it cuts off claims six months after the negligent conduct, regardless of whether the plaintiffs injury had been discovered. See Putthoff v. Ancrum, 934 S.W.2d 164, 174 (Tex. App. 1996) (\u201c[T]he discovery rule does not apply to claims made under the [TTCA].\u201d); Black\u2019s Law Dictionary 1637 (10th ed. 2014) (defining \u201cstatute of repose\u201d as \u201c[a] statute barring any suit that is brought after a specified time since the defendant acted . . ., even if this period ends before the plaintiff has suffered a resulting injury\u201d).\n{38} In contrast, while the NMTCA requires notice \u201cwithin ninety days after an occurrence giving rise to a claim for which immunity has been waived under the [NMTCA],\u201d Section 41 -4-16(A), New Mexico cases have applied the \u201cdiscovery rule\u201d to the notice requirement. Under this rule, the time period for the notice requirement to bring a medical malpractice case under the NMTCA begins to run only when \u201cthe plaintiff knows or with reasonable diligence should have known of the injury and its cause.\u201d Maestas v. Zager, 2007-NMSC-003, \u00b6 19, 141 N.M. 154, 152 P.3d 141; Emery v. Univ. of N.M. Med. Ctr., 1981-NMCA-059, \u00b6 29, 96 N.M. 144, 628 P.2d 1140 (extending the discovery rule to the NMTCA\u2019s notice requirement), abrogated on other grounds by Maestas, 2007-NMSC-003. Thus, the NMTCA\u2019s notice requirement is much more flexible than that in the TTCA. Cf. Timmons v. Univ. Med. Ctr., 331 S.W.3d 840, 846, 848 (Tex. App. 2011) (recognizing that \u201cthe operation of section 101.101 [when the plaintiff did not discover the injury until after six months had passed] appears harsh and unfair\u201d); Streetman v. Univ. of Tex. Health Sci. Ctr. at San Antonio, 952 S.W.2d 53, 56 (Tex. App. 1997) (same); Univ. of Tex. Med. Branch at Galveston v. Greenhouse, 889 S.W.2d 427, 430, 432 (Tex. App. 1994) (same).\n{39} We conclude that applying the TTCA here would violate New Mexico public policy by (1) contravening New Mexico\u2019s broader waiver of immunity, (2) prohibiting suits against individuals, and (3) imposing a notice requirement substantially more restrictive than that in the NMTCA. See Sam, 2006-NMSC-022, \u00b6 27 (stating that \u201c[t]o apply [another state\u2019s shorter] statute of limitations would violate our own public policy of allowing two years to file suit [under the NMTCA]\u201d). There may also be other ways the statutes differ substantially; we have not conducted an exhaustive comparison of the two statutes. It is sufficient to hold that, to avoid infringing on the public policy expressed in the NMTCA, the immunity extended to Dr. Frezza with regard to the three areas discussed above should be coextensive with the immunity enjoyed by New Mexico governmental agencies and employees. See id.\n{40} This conclusion is consonant with Sam, in which the Court concluded that comity principles required the extension of \u201ca limited grant of immunity to Arizona\u201d where both states had passed similar tort claims acts but with different statutes of limitation, and held that the NMTCA\u2019s statute of limitations applied. Id. Similarly, in Hyatt, the United States Supreme Court affirmed the Nevada Supreme Court\u2019s refusal to apply California law, which provided the Franchise Tax Board with complete immunity, because Nevada law waived immunity for intentional torts. 538 U.S. at 493-94.\n{41} As a general matter, it is appropriate to use the NMTCA to provide the contours \u2014 or measure \u2014 of the immunity Dr. Frezza should enjoy in New Mexico courts. Texas and its employees cannot and should not be treated as purely private litigants for the simple and obvious reason that they are not. Employees of a sister state acting within the scope of their employment do not become purely private citizens when they cross state lines or when they are subjected to the jurisdiction of the courts of another state. See City of Red Wing v. Ellsworth Cmty. Sch. Dist., 617 N.W.2d 602, 607 (Minn. Ct. App. 2000) (holding that it was appropriate to apply Minnesota\u2019s municipal tort liability laws as a measure of the extent of a Wisconsin teacher\u2019s monetary liability). Using the contours of the NMTCA levels the field and assures that non-New Mexico actors are not provided greater protection than New Mexico provides its employees and governmental agencies. See Head, 749 P.2d at 10; In re Clark\u2019s Will, 1955-NMSC-063, \u00b6 7. Cf. Hansen v. Scott, 2004 ND 179, \u00b6 11, 687 N.W.2d 247, 251 (\u201cWe hold the Texas defendants are immune from suit to the same extent the State of North Dakota would grant immunity to its employees under North Dakota law. Applying the same level of immunity does not compromise the public policy of North Dakota.\u201d); and cf. Ann Woolhandler, Interstate Sovereign Immunity, 2006 Sup. Ct. Rev. 249, 291 (stating that one approach employed in comity analyses \u201cinvolves ignoring defendant-state forum limitation provisions, notice and time limits, and liability and damages limitations, and applying the forum\u2019s law of state suability.\u201d (footnotes omitted)).\n{42} In sum, we affirm the district court with one caveat: the district court\u2019s order seems to impose New Mexico law in toto on the proceedings. It is premature to decide that the TTCA is fully displaced. We limit our holding to the three subjects discussed in paragraphs 34-39 of this Opinion. The applicability of other provisions of the NMTCA should be determined by the district court on remand.\nCONCLUSION\n{43} We affirm in part, vacate in part, and remand for proceedings consistent with this Opinion.\n{44} IT IS SO ORDERED.\nMICHAEL D. BUSTAMANTE, Judge\nI CONCUR:\nCYNTHIA A. FRY, Judge\nThe special concurrence takes issue with our discussion of and approval of the district court\u2019s application of the place-of-the-wrong rule. We disagree that it was error for the district court to begin with this analysis. In Sam, the Supreme Court stated that appellate courts should \u201creview the district court\u2019s decision to use a comity analysis de novo \" and that this review assesses \u201cthe appropriateness of a district court\u2019s decision to engage in a comity analysis.\u201d 2006-NMSC-022, \u00b6\u00b6 9, 12. This language suggests that the decision to engage in the comity analysis itself depends on a prior legal conclusion that it is necessary. If the place-of-the-wrong rule indicated that Texas law applied, there would have been no need to proceed to a comity analysis. Thus, if the question could have been resolved by relying on an established set of legal principles not requiring a detailed policy analysis, it was not error for the district court to begin with that tack.\nWinfrey is not reported in South Western Reporter 3d. According to the commentary associated with Texas Rules of Appellate Procedure 47.2 and 47.7, however, \u201c[a]ll opinions and memorandum opinions in civil cases issued after the 2003 amendment [to the rules] have precedential value.\u201d Id. (notes and comments). Hence, we consider Winfrey as a precedential opinion of the Texas Court of Appeals.", "type": "majority", "author": "BUSTAMANTE, Judge." }, { "text": "JONATHAN B. SUTIN, Judge\n(concurring in part and dissenting in part).", "type": "concurring-in-part-and-dissenting-in-part", "author": "JONATHAN B. SUTIN, Judge" }, { "text": "SUTIN, Judge\n(concurring in part and dissenting in part).\n{45} I concur in the majority\u2019s resolution of the comity question. I respectfully dissent in regard to the majority\u2019s approbation given to the district court\u2019s application of the place-of-the-wrong rule.\nA. INTRODUCTION: Dr. Frezza\u2019s Points on Appeal\n{46} Dr. Frezza\u2019s points on appeal, aside from the writ of error issue, are that (1) the place-of-the-wrong rule and public policy concerns require that Texas law apply to Ms. Monta\u00f1o\u2019s claims, and (2) the doctrine of comity requires the application of Texas law. The Texas law to which Dr. Frezza refers is the TTCA.\n1. The Place-of-the-Wrong Point\n{47} In his motion to dismiss, Dr. Frezza asserted that the TTCA applied under the doctrine of comity because Texas was the place of the wrong. He indicates that the district court determined that he was not entitled to immunity from suit under the TTCA because, based on the place-of-the-wrong rule and on principles of comity, New Mexico law applied. Dr. Frezza erroneously conflates two distinct doctrines. Further, in arguing the place-of-the-wrong rule, Dr. Frezza relies on New Mexico conflict-of-laws cases having nothing to do with the circumstance of competing foreign state and forum state sovereign immunity laws and interests requiring a comity analysis. See Torres, 1995-NMSC-025; Terrazas, 2006-NMCA-111; In re Estate of Gilmore, 1997-NMCA-103.\n{48} Ms. Monta\u00f1o buys in to the confusing and erroneous application of the place-of-the-wrong rule. She argues that the place of the wrong is New Mexico and that the district court properly determined that the nexus of facts pled by her raised both a question of choice of law (meaning selecting, pursuant to a conflict-of-laws analysis, the law of one state over another pursuant to a place-of-the-wrong rule analysis) and comity.\n{49} Although they combine the application of the place-of-the-wrong rule with the rule of lex loci delicti (lex loci), neither Dr. Frezza nor Ms. Monta\u00f1o says what particular New Mexico law was to be applied under the place-of-the-wrong rule as to Dr. Frezza\u2019s immunity defense. In ruling that the place-of-the-wrong rule applied, that the place of the wrong was New Mexico, and that the law to be applied was New Mexico law, the district court also failed to indicate what New Mexico law applied to Dr. Frezza\u2019s immunity defense.\n2. The Comity Point\n{50} Separately addressing comity, Dr. Frezza says that, in addition to the fact that Texas is the place of the wrong, \u201cprinciples of comity require the application of Texas law[,]\u201d namely, the immunity provided under the TTCA. He discusses solely the TTCA and the NMTCA in the bout between the immunity provisions within sovereigns\u2019 tort claims acts. Dr. Frezza analyzes the four factors in Sam, 2006-NMSC-022, \u00b6\u00b6 22-28. As to the state-interest factor, Dr. Frezza seems to again insert the place-of-the-wrong and lex loci rules into the comity analysis when he argues that \u201cNew Mexico\u2019s interest is limited by virtue of the fact that all of the alleged negligent acts occurred in Texas},]\u201d and thus that the TTCA applies under comity. Ms. Monta\u00f1o\u2019s comity analysis, of course, ends with comity not extendable to Texas. Following a Sam analysis, the district court denied Dr. Frezza\u2019s motion to dismiss insofar as it was based on his comity position that the TTCA applied.\nB. DISCUSSION: Misplaced Application of the Piace-of-the-Wrong Rule\n1. Application of the Place-of-the-Wrong Rule \u2014 What Ifs?\n{51} The choice-of-law, conflict-of-laws analysis path chosen by the district court and the parties begged the unanswered question: When the determination is made that New Mexico law applies, which New Mexico law is to be applied? If New Mexico law on sovereign immunity is the law to be applied, that law would be the NMTCA. If the NMTCA were to be applied, the question necessarily becomes, can the NMTCA apply to claims against a physician for medical negligence when the physician is an employee of a Texas governmental entity and is not an employee of a New Mexico governmental entity?\n{52} The answer to the foregoing question is that the NMTCA cannot be applied to that physician. In particular, because Dr. Frezza is not employed by a New Mexico governmental entity, the NMTCA cannot be applied to him. See \u00a7 41-4-3(B), (C), (F), (H). The upshot is that, given that the NMTCA does not apply to Dr. Frezza and barring the application of the TTCA, his existence as a medical malpractice defendant in a New Mexico lawsuit is such that he would have no New Mexico immunity from suit. Neither the parties nor the district court engaged in any such analysis.\n{53} Questions arise: Were the district court to have determined that Texas law instead of New Mexico law applied as to Dr. Frezza\u2019s immunity defense and that the TTCA applied, would this then have foreclosed any comity analysis? Would Torres have been applicable to override on public policy grounds, the application of the TTCA? See Torres, 1995-NMSC-025, \u00b6\u00b6 13-14 (holding that, in a choice-of-law and conflict-of-laws, place-of-the-wrong analysis, based on New Mexico\u2019s public policy, New Mexico law would control notwithstanding that the place of the wrong was California). W ould a Torres override on public policy grounds be a decision tantamount to a refusal to extend comity?\n{54} It is noteworthy that in Sam our Supreme Court noted that this Court in Sam v. Estate of Sam, 2004-NMCA-018, \u00b6 15, 135 N.M. 101, 84 P.3d 1066, rev\u2019d by 2006-NMSC-022, employed a choice-of-law, place-of-the-wrong rule analysis. See Sam, 2006-NMSC-022, \u00b6 7. Our Supreme Court in Sam appears to have purposely chosen to disregard the place-of-the-wrong rule and to stick solely to comity, see id. \u00b6\u00b6 7-8, although one might infer that, in reversing this Court, our Supreme Court was not disregarding the place-of-the-wrong rule in the case, but was holding that the place-of-the-wrong rule was not applicable. It is also noteworthy that, in Sam, the Supreme Court also mentioned that this Court, in Sam, 2004-NMCA-018, \u00b6 14, also determined that the NMTCA was inapplicable \u201cbecause [the plaintiff] was not employed by New Mexico and was therefore not covered by [the NMTCA].\u201d Sam, 2006-NMSC-022, \u00b6 6. We have no indication whether the Supreme Court considered the significance of this Court\u2019s determination that the plaintiff in Sam was not employed by New Mexico and not covered under the NMTCA.\n2. Misapplied Place-of-the-Wrong Rule\n{55} The foregoing questions and conundrums aside, the place-of-the-wrong rule had no place in this comity case. None of the choice-of-law, conflict-of-laws, place-of-the-wrong/iex loci rule New Mexico cases, including in particular, Gilmore, Terrazas, and Torres, are comity cases. As well, and notably, neither our Supreme Court in Sam, nor the United States Supreme Court in Hyatt and Hall, on which Sam relied, engage in a place-of-the-wrong or lex loci analysis. See Hyatt, 538 U.S. 488; Hall, 440 U.S. 410. It was error for the district court to rely on and apply the place-of-the-wrong and lex loci rules in regard to the immunity defense issue in this case. I therefore disagree with the majority\u2019s \u201cperceiv[ing] no error in the district court\u2019s . . . place-of-the-wrong analysis},]\u201d see Majority Op. \u00b6 12, which brings me to Sam and comity, and also to the majority\u2019s opinion on comity in the present case.\nC. DISCUSSION: Sam\n{56} Sam involved the issue whether New Mexico claimants suing an Arizona government employee in New Mexico were barred by the Arizona Tort Claims Act\u2019s one-year statute of limitations, the NMTCA\u2019s two-year statute of limitations, or New Mexico\u2019s three-year general statute of limitations for tort actions. Sam, 2006-NMSC-022, \u00b6 7; Sam, 2004-NMCA-018, \u00b6\u00b6 13-15 (setting out the three statutes of limitations). The action was filed just before three years had run. Sam, 2006-NMSC-022, \u00b6 3.\n{57} On appeal from the district court decision in Sam, this Court determined that the NMTCA did not apply to an Arizona government employee, Sam, 2004-NMCA-018, \u00b6 13. Citing Hyatt and Hall, we held that \u201cNew Mexico, as the forum state in this case, is not required to recognize Arizona\u2019s statute of limitations attaching or the sovereign immunity granted to its public employees.\u201d Sam, 2004-NMCA-018, \u00b6 13. We further held that the NMTCA was inapplicable because the plaintiff \u201cwas not a public employee covered under our Tort Claims Act.\u201d Id. \u00b6 14. Declaring that sovereign immunity and public employment were irrelevant to the issues in the case, this Court turned to the place-of-the-wrong rule as applied in Torres and held that \u201cbecause the accident resulting in [the victim\u2019s] death occurred in New Mexico, New Mexico\u2019s three-year statute of limitations [in NMSA 1978, Section 37-1-8 (1976)] applies to this suit.\u201d Sam, 2004-NMCA-018, \u00b6 15. In a certiorari proceeding, our Supreme Court saw the case differently and reversed this Court. Sam, 2006-NMSC-022, \u00b6\u00b6 1, 20.\n{58} The issue before our Supreme Court in Sam was whether the New Mexico district court should, as a matter of comity, recognize the sovereign immunity of a sister state, Arizona. Id. \u00b6 1. Sam stated at the outset that it would discuss \u201cwhat factors a New Mexico court should consider to determine if comity should be extended.\u201d Id. \u00b6 8. Sam analyzed Hall and stated that the difference between California and Nevada law as to a cap on damages \u201cwas sufficient for California to justify not extending comity.\u201d Sam, 2006-NMSC-022, \u00b6 17. Sam declared that \u201c[a]s a general rule, comity should be extended. Only if doing so would undermine New Mexico\u2019s own public policy will comity not be extended.\u201d Id. \u00b6 21.\n{59} In Sam, our Supreme Court at the outset indicated that the question was whether, with respect to the plaintiffs claim, the Arizona Tort Claims Act\u2019s one-year statute of limitations should be applied under comity, whether the NMTCA\u2019s two-year statute of limitations, or whether the New Mexico three-year statute of limitations on common law tort claims, should be applied. Id. \u00b6\u00b6 1, 3. The Court noted that Arizona and New Mexico both waived sovereign immunity with respect to the plaintiffs claim, but further noted that the waiver of sovereign immunity was \u201crestrained by strict statutes of limitations.\u201d Id. \u00b6 1.\n{60} The Court in Sam addressed whether it should extend comity to Arizona for application of Arizona\u2019s one-year statute of limitations, holding that \u201cwe believe that New Mexico should extend a limited grant of immunity to Arizona because both states have done so through tort claims acts. However, we should only extend New Mexico\u2019s two-year statute of limitations instead of applying Arizona\u2019s one-year statute of limitations.\u201d Id. \u00b6 27. The Court did not apply Arizona\u2019s tort claims act\u2019s one-year statute. Id. \u00b6\u00b6 20, 27. The Court decided to \u201cextend a limited grant of immunity to Arizona\u201d and also to \u201cextend [the NMTCA\u2019s] two-year statute of limitations.\u201d Id. \u00b6 27 (emphasis added). Thus, in regard to Dr. Frezza\u2019s immunity defense, in its analysis of whether to extend comity, instead of using the words \u201capply\u201d or \u201capplication\u201d with reference to law, our Supreme Court chose the word \u201cextend\u201d \u2014 that is, under the comity analysis, New Mexico would (1) \u201cextend\u201d immunity to Arizona, and (2) at the same time would \u201cextend\u201d the New Mexico statute of limitations \u201cas a matter of comity\u201d or \u201cbased on the principles of comity\u201d or \u201cthrough comity\u201d to Arizona. Id. \u00b6\u00b6 13,20, 22, 27.\n{61} What I glean from Sam is that: (1) the Court extended comity to Arizona with respect to Arizona\u2019s limited sovereign immunity waiver, leaving Arizona immunity in place and applicable, but did not extend comity with respect to Arizona\u2019s statute of limitations; and (2) the Court, without expressly saying so, under principles of comity actually applied the NMTCA statute of limitations in place of Arizona\u2019s statute of limitations as though the NMTCA statute of limitations was Arizona law. The Court employed the notion \u201cextending\u201d a New Mexico law, namely, NMTCA provisions, presumably because those provisions cannot \u201capply\u201d to a person who is not an employee of a New Mexico governmental entity.\n{62} I am unaware of how New Mexico, by extending comity to Arizona by recognizing the sovereign immunity provision in the Arizona tort claims act, also under or based on comity or comity principles \u201cextends\u201d the NMTCA statute of limitations provisions \u201cto Arizona\u201d or \u201cto an Arizona public employee.\u201d Sam, 2006-NMSC-022, \u00b6\u00b6 13, 20, 27 (emphasis added). I do not find support in either Hyatt or Hall for applying the doctrine of comity or its principles by \u201cextending\u201d the NMTCA to the sister state, in effect incorporating the NMTCA into Arizona\u2019s tort claims act. I am unaware of any cases outside of Sam that resolves comity issues in this manner.\nD. DISCUSSION: Following Sam Here\n{63} The majority essentially follows in Sam\u2019s footsteps, stating that its \u201cconclusion is consonant with Sam[.]\u201d Majority Op. \u00b6 40. Like in Sam, which \u201cextended\u201d the NMTCA\u2019s two-year statute of limitations to an Arizona government employee to bar a claim filed in New Mexico against that employee \u2014 a person clearly not covered under the NMTCA \u2014 the majority \u201cuses\u201d the NMTCA\u2019s waiver of immunity to strip Dr. Frezza of immunity, when Dr. Frezza clearly is not covered under the NMTCA. The majority does not use the words \u201cextend\u201d or \u201cextend under comity or comity principles.\u201d The majority states that \u201cit is appropriate to use the NMTCA to provide the contours \u2014 or measure \u2014 of the immunity Dr. Frezza should enjoy,\u201d Majority Op. \u00b6 41 (emphasis added), and further states that NMTCA\u2019s immunity-related provisions \u201cshould be coextensive with the immunity enjoyed by New Mexico governmental agencies and employees. Majority Op. \u00b6 39 (emphasis added).\n{64} In resorting to the words \u201cextending,\u201d \u201ccoextensive,\u201d and \u201cuse,\u201d the Court in Sam and the majority here employ legal fictions. Sam and the majority have created theories or methodologies by which NMTCA provisions either become a part of or replace a provision in a sister state\u2019s tort claims act to bar a claim (as in Sam) or to bar a defense (as in the case here).\n{65} It may well be that the legal-fiction approach necessarily must be employed to arrive at a satisfactory result in these sovereign immunity, comity circumstances. Given Sam, I cannot fault the majority\u2019s approach here. The majority tweaks the Sam analysis by discarding the notion of \u201cextending\u201d the NMTCA to the sister state. The majority\u2019s \u201cuse\u201d and \u201ccoextensive\u201d theories are, according to the majority, \u201cconsistent\u201d with Sam. The majority\u2019s word selection perhaps more descriptively suggests what the Court in Sam was doing.\n{66} I go along with the majority\u2019s resolution albeit there exists no underlying explanation as to how a Texas resident and government employee with TTCA immunity, who is recognized as such when sued in New Mexico, will in essence be treated as a New Mexico resident and New Mexico government employee, consistent with or under the NMTCA, with no immunity, when, in all probability, he will be denied any benefit under the NMTCA and may even receive no TTCA protection. With the understanding that the TTCA violates New Mexico public policy, I go along, given the apparent absence of a better resolution based on any underlying rational support and given the incomplete manner in which the case was developed and handled on Dr. Frezza\u2019s motion to dismiss.\n{67} Comity policy resides with each state in dealing with sovereignty issues such as those in the case before us. See Hall, 440 U.S. at 425-26. State courts exercise reasonable discretion through practical wisdom and general fairness in their judicial-law-making determinations and development. See Albert Tate, Jr., The Law-Making Function of the Judge, 28 La. L. Rev. 211, 214-17 (1968). This function is appropriate in our policy-driven comity circumstance. Note Judge Tate\u2019s poignant view:\nI . . . emphasize again what all lawyers know and what few laymen can deny: That the ordinary and customary operation of our judicial process requires the courts on occasion to create law-rules where needed to decide the case[] and that these law-rules operate with prospective effect to regulate the clashes of similar interests in the future, in much the same manner (although more limited in scope) as does a new statute.\nId. at 217. The import of a legal fiction into a law-rule where needed to decide the case can be appropriate, if done through practical wisdom and general fairness, as long as we recognize and make clear what we are doing and why we are doing it. Although there might be a different solution for the case before us than to employ a legal fiction, I am satisfied that the methodology employed is consistent with reason and fairness and appropriate in this case. That is why I concur in the majority\u2019s solution.\nJONATHAN B. SUTIN, Judge\nI note that the standard of review in Sam for a court\u2019s analysis under comity is abuse of discretion. See Sam, 2006-NMSC-022, \u00b6 12. I am unsure why that standard was chosen. One would think that the standard would be de novo, given (1) the claimed error was the district court\u2019s denial of a motion to dismiss under Rule 1-012(B)(6), and (2) the underlying question is whether the TTCA violates New Mexico public policy. See Sam, 2006-NMSC-022, \u00b6 9 (stating that wc generally view a denial of a motion to dismiss de novo); Nat\u2019l Bank of Ariz. v. Moore, 2005-NMCA-122, \u00b6\u00b6 6-7, 138 N.M. 496, 122 P.3d 1265 (indicating that we review de novo whether New Mexico public policy is violated).\nOne might offer a possible alternative comity solution by determining that there exist two strong New Mexico public policies militating against granting immunity to physicians sued in New Mexico for medical malpractice: one, lack of immunity under the NMTCA; two, lack of immunity for a non-New Mexico government physician sued for medical malpractice in New Mexico. If the TTCA violates both policies, New Mexico courts will not extend comity to Texas on immunity. The statutes and common law related to medical malpractice actions control. Under those laws, the physician has no New Mexico immunity. It is doubtful that this analysis would \u201cfly\u201d under Sam, considering that Sam appears to have chosen not to explore public policy underlying the three-year statute of limitations and whether the Arizona statute offended that public policy.", "type": "concurring-in-part-and-dissenting-in-part", "author": "SUTIN, Judge" } ], "attorneys": [ "Jones, Snead, Wertheim & Clifford, P.A.", "Jerry Todd Wertheim", "Roxie De Santiago", "Samuel C. Wolf", "Elizabeth C. Clifford", "Santa Fe, NM", "for Appellee", "Hinkle, Hensley, Shanor & Martin, LLP", "William P. Slattery", "Dana S. Hardy", "Zachary T. Taylor", "Santa Fe, NM", "for Appellant", "Rodey, Dickason, Sloan, Akin & Robb PA", "Nelson Franse", "Brian Brack", "Albuquerque, NM", "for Lovelace Insurance Company" ], "corrections": "", "head_matter": "Certiorari Granted, June 19, 2015,\nNo. 35,297;\nCertiorari Granted, June 19, 2015,\nNo. 35,214\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2015-NMCA-069\nFiling Date: March 19, 2015\nDocket No. 32,403\nKIMBERLY MONTA\u00d1O, Plaintiff-Appellee, v. ELDO FREZZA, M.D., Defendant-Appellant, and LOVELACE INSURANCE COMPANY, a domestic For-Profit Corporation, Defendant.\nJones, Snead, Wertheim & Clifford, P.A.\nJerry Todd Wertheim\nRoxie De Santiago\nSamuel C. Wolf\nElizabeth C. Clifford\nSanta Fe, NM\nfor Appellee\nHinkle, Hensley, Shanor & Martin, LLP\nWilliam P. Slattery\nDana S. Hardy\nZachary T. Taylor\nSanta Fe, NM\nfor Appellant\nRodey, Dickason, Sloan, Akin & Robb PA\nNelson Franse\nBrian Brack\nAlbuquerque, NM\nfor Lovelace Insurance Company" }, "file_name": "0161-01", "first_page_order": 177, "last_page_order": 195 }