Sayeed v. Dillon

573 N.E.2d 468, 1991 Ind. App. LEXIS 982, 1991 WL 107878
CourtIndiana Court of Appeals
DecidedJune 18, 1991
DocketNo. 49A02-9004-CV-00233
StatusPublished
Cited by5 cases

This text of 573 N.E.2d 468 (Sayeed v. Dillon) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sayeed v. Dillon, 573 N.E.2d 468, 1991 Ind. App. LEXIS 982, 1991 WL 107878 (Ind. Ct. App. 1991).

Opinion

ROBERTSON, Judge.

Asif Sayeed, David Lutz, American Health Care Providers d/b/a American HMO, and Ramesh Joshi bring this consolidated interlocutory appeal from two adversary proceedings brought as part of the liquidation of Physicians Choice of Northwest Indiana, Inc., an insolvent Indiana prepaid health care delivery plan. The lig-uidation proceedings were filed in Marion County as required by statute. The appellants argue the trial court erred by denying their motion for a change of venue to Lake County or to another northwestern Indiana County. The appellants raise three issues, none of which constitute reversible error.

FACTS AND PROCEDURAL POSTURE

John J. Dillon, III, as the Commissioner of the Department of Insurance of Indiana [insurance commissioner or commissioner], filed an action to liquidate Physicians Choice of Northwest Indiana [PCNI], an insolvent Indiana prepaid health care delivery plan. PCNI primarily conducted business in Lake, Porter, LaPorte, Newton, and Jasper Counties, all located in the northwest of Indiana.

During the course of administering the liquidation, the commissioner/liquidator filed two adversarial actions against the Appellants-who were former directors and managers of PCNI-seeking to recover funds allegedly due the insolvent Prepaid Plan's estate. These two adversarial proceedings are the subject of this consolidated interlocutory appeal.

[470]*470The appellants filed motions for a change of venue. They sought and continue to seek to have the two adversarial cases ven-ued in Lake County or another county in northwestern Indiana more convenient for them. After entertaining oral argument, the trial court denied the appellants' motions finding:

1. This Court lacks authority in this case to order a change of venue to Lake County, Indiana, the defendants having failed to show their right to a change of venue pursuant to any statute or rule of court; and
2. Even if the Court had discretion to order a change of venue to Lake County, Indiana, on the facts and arguments presented, the Court would exercise its discretion to deny the request, the defendants having failed to establish inconvenience to defendants sufficient to outweigh plaintiff's choice of venue and the inconvenience to plaintiff and third-party defendants of trying the case in Lake County.

The Appellants bring this interlocutory appeal raising three issues which are interrelated, dependent upon one another, and which follow a logical progression. We believe the logical progression of Appellant's argument may be restated as 1) the trial court had the authority-within the province of its discretion-to transfer venue to a northwestern Indiana county, and 2) the trial court abused this discretion by failing to transfer venue to a northwestern Indiana county. The Appellants' success in this appeal requires that both steps in the progression of its argument have merit. We agree with the trial court's conclusion that it lacks the authority to transfer venue to any of the northwestern Indiana counties in which the appellants wish to litigate. As this determination is fatal to the merits of this appeal, we address only one issue which we have divided into three (8) see-tions. This issue may be restated as:

whether the Marion County circuit court, presiding over the liquidation of a prepaid healthcare delivery plan, has the authority to transfer venue to a nonconti-guous county?

DECISION

PCNI is a prepaid health care delivery plan formed under IND.CODE 27-8-7. As such, the present liquidation proceedings are governed by the provisions of IND. CODE 27-9-1-1 et seq. 1.0. 27-9-1-1(7). Proceedings for liquidation under these provisions may only be brought by the insurance commissioner. I.C. 27-9-1-3(a). The receiver appointed in a proceeding under this article is authorized to pursue all appropriate legal remedies against any director, officer, manager, agent, broker, employee, or other person or entity on behalf of the insurer. I.C. 27-9-1-8(d). All action authorized by IC. 27-9-1-3 must be brought in the Marion County circuit court. 1.C. 27-9-1-8(f).

Pursuant to the above statutory scheme, the present liquidation proceedings and the two adversarial actions were filed in the Marion County cireuit court. The appellants concede that Marion County is a county of preferred venue under Ind.Trial Rule 75(A)(8) which provides that preferred venue lies in:

the county where a claim in the plaintiff's complaint may be commenced under any statute recognizing or creating a special or general remedy or proceeding.
I.
Whether the statutory scheme for the liquidation of prepaid health care delivery plans grants the trial court authority to transfer venue of actions arising out of the liquidation proceedings to counties not contiguous to Marion County?

Appellants assert that the provisions governing the liquidation of prepaid health care delivery plans, 1.0. 27-9-1-1 et seq., grant the trial court the authority to transfer venue to a northwestern Indiana County under the cireumstances present in this case. In any action brought by or against a receiver appointed in a proceeding under LC. 27-9-1-1 et seq., an automatic change of judge or change of venue from the Marion County circuit court may

[471]*471not be granted. 1.0. 27-9-1-8.5. A change of venue from the Marion County circuit court in such an action shall be granted only upon the filing of a verified application alleging and demonstrating one (1) or more of the grounds specified for a change of venue set forth in IND.CODE 834-1-13-1.

In the present case, Appellants filed a verified application for a change of venue alleging-pursuant to the fifth specification of I.C. 34-1-13-1-that the convenience of witnesses and the ends of justice would be promoted by a change of venue to a northwestern Indiana county. When a change of venue is directed for the fifth specification of 1.0. 34-1-18-1:

the court or judge shall designate the county to which the venue shall be changed, which may be in the same or in an adjoining circuit, as may be deemed best for the furtherance of justice....

1.C. 34-1-13-2 (emphasis added). None of the counties that the Appellants seek to have venue changed to, including Lake County, are in or constitute judicial circuits that adjoin Marion County.

The Appellants focus on the use of the word "may" highlighted in I.C. 84-1-183-2 above. They argue that the legislature's use of the word "may" instead of "shall" indicates that there is no imperative or mandatory limit upon the trial court's authority under the statute to transfer a case only to an adjoining county. Instead, the appellants argue the statutory scheme permits the trial court-within the exercise of its discretion-to transfer venue to any county it deems to be the most appropriate or convenient.

We characterize Appellant's statutory construction of these provisions as specious. The statute upon which the Appellants rely, 1.0. 34-1-183-1, was enacted in 1881 and has been in continuous effect since that time without amendment. Acts 1881, e. 88 § 255. As a practical matter, the fifth specification of 1.0. 84-1-18-1 has been superseded in modern times by TR. 76 which allows an automatic change of venue in civil actions to an adjoining county without the necessity of showing inconvenience or other prejudice.

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Bluebook (online)
573 N.E.2d 468, 1991 Ind. App. LEXIS 982, 1991 WL 107878, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sayeed-v-dillon-indctapp-1991.