Toscano v. Lovato

40 P.3d 1042, 131 N.M. 585
CourtNew Mexico Court of Appeals
DecidedJanuary 2, 2002
Docket22,150
StatusPublished
Cited by3 cases

This text of 40 P.3d 1042 (Toscano v. Lovato) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Toscano v. Lovato, 40 P.3d 1042, 131 N.M. 585 (N.M. Ct. App. 2002).

Opinion

40 P.3d 1042 (2002)
131 N.M. 585
2002-NMCA-022

Judilia TOSCANO, Plaintiff-Appellee,
v.
Augustin LOVATO and Dairyland Insurance Company, Defendants-Appellants.

No. 22,150.

Court of Appeals of New Mexico.

January 2, 2002.

*1043 Narciso Garcia, Jr., Garcia Law Office, Albuquerque, NM, for Appellee.

Jeffrey E. Jones, Miller, Stratvert & Torgerson, P.A., Santa Fe, NM, for Appellants.

OPINION

PICKARD, Judge.

{1} In this case, we are asked to consider the implications, on the issue of venue, of Raskob v. Sanchez, 1998-NMSC-045, 126 N.M. 394, 970 P.2d 580, which held that a plaintiff may join a defendant's insurer in an action arising out of an automobile accident. After Plaintiff and Defendant Lovato, both residents of Bernalillo County, were involved in an automobile accident within that county, Plaintiff brought suit against Lovato and, pursuant to Raskob, Lovato's insurer, Dairyland Insurance Co. Plaintiff filed her action in Santa Fe County. Defendants moved to *1044 dismiss, arguing that venue would be proper only in Bernalillo County. The district court denied Defendants' motion, but permitted an interlocutory appeal pursuant to NMSA 1978, § 39-3-4(A) (1999), and we granted Defendant's application for appeal.

{2} Defendants argue that under our venue statute, NMSA 1978, § 38-3-1 (1988), Plaintiff could bring this action only in Bernalillo County. Defendants argue that, in accordance with Sunwest Bank v. Nelson, 1998-NMSC-012, ¶¶ 12-13, 125 N.M. 170, 958 P.2d 740, out-of-state insurance companies are not foreign corporations for the purposes of the venue statute. As a result, they argue, Plaintiff was required to base her venue selection on the options available under Subsection A of the venue statute, rather than Subsection F, which governs actions brought against foreign corporations. If Subsection A governs this action, then venue will be proper only in Bernalillo County. In the alternative, Defendants argue that Plaintiff cannot rely on the residency of an insurance company joined pursuant to Raskob in selecting venue, because the insurer is not a necessary and indispensable party to the action.

{3} Addressing Defendant's second argument first, we do not agree that venue must be based on a necessary and indispensable party, and instead hold that Plaintiff could base her venue decision on the residence of any proper party. Moving on to interpret the venue statute, we agree with Defendants that, under Sunwest Bank, out-of-state insurance companies are not foreign corporations for the purposes of the venue statute, and therefore the provisions of Subsection F relating to suits brought against foreign corporations do not apply. Nonetheless, we do not agree with Defendants that Plaintiff's venue selection is governed by Subsection A. Instead, we hold that foreign insurers are to be treated as nonresidents for the purposes of the venue statute, and therefore are subject to suit in any county within the state.

{4} In summary, we hold that (1) Plaintiff could base her venue decision on the residence of any proper party; (2) out-of-state insurance companies are not foreign corporations for the purposes of the venue statute, and therefore the provisions of Subsection F relating to suits brought against foreign corporations do not apply to actions against foreign insurers; and (3) foreign insurers are to be treated as nonresidents for the purposes of the venue statute, and therefore are subject to suit in any county within the state. Because Dairyland, as a nonresident, is subject to suit in any county, venue for this action was proper in Santa Fe County. We therefore affirm the decision of the district court denying Defendants' motion to dismiss for improper venue.

FACTS AND PROCEEDINGS

{5} Dairyland is an insurance company organized under the laws of the State of Wisconsin and certified to do business in New Mexico. Plaintiff brought her action in Santa Fe County on the theory that Dairyland is a foreign corporation, and therefore her venue options are governed by Subsection F of the venue statute, Section 38-3-1. Subsection F provides:

Suits may be brought against transient persons or non-residents in any county of this state, except that suits against foreign corporations admitted to do business and which designate and maintain a statutory agent in this state upon whom service of process may be had shall only be brought in the county where the plaintiff, or any one of them in case there is more than one, resides or in the county where the contract sued on was made or is to be performed or where the cause of action originated or indebtedness sued on was incurred or in the county where the statutory agent designated by the foreign corporation resides.

Plaintiff argues that, in this case, venue is proper in Santa Fe County because Dairyland, in compliance with NMSA 1978, § 59A-5-31(A) (1984), has appointed the Superintendent of Insurance as its statutory agent to receive service of process. Because the Superintendent of Insurance "resides" in Santa Fe County, Plaintiff argues that venue is proper there under Subsection F. There is no other basis for venue in Santa Fe County.

{6} In support of their motion to dismiss, Defendants argue that, under our Supreme Court's holding in Sunwest Bank, foreign insurers are not foreign corporations for the *1045 purposes of the venue statute. As a result, they argue, the provisions of Subsection F providing venue options for actions against foreign corporations do not apply. Defendants contend that Subsection A of the venue statute should govern this action. Subsection A provides that:

First, except as provided in Subsection F of this section relating to foreign corporations, all transitory actions shall be brought in the county where either the plaintiff or defendant, or any one of them in case there is more than one of either, resides; or second, in the county where the contract sued on was made or is to be performed or where the cause of action originated or indebtedness sued on was incurred; or third, in any county in which the defendant or either of them may be found in the judicial district where the defendant resides.

If Subsection A governs, then the action must be brought within Bernalillo County, because that is the place where both Plaintiff and Defendant Lovato reside and where the accident occurred. In the alternative, Defendants argued that Plaintiff cannot rely on the residence of Dairyland to determine venue because Dairyland is not a necessary and indispensable party to the action. The district court denied Defendants' motion on both grounds.

DISCUSSION

{7} A motion to dismiss for improper venue raises a question of law, which we review de novo. Williams v. Bd. of County Comm'rs, 1998-NMCA-090, ¶ 28, 125 N.M. 445, 963 P.2d 522. Our legislature has provided an expansive venue statute that gives plaintiffs wide latitude in choosing where to bring an action. Sunwest Bank, 1998-NMSC-012, ¶ 10, 125 N.M. 170, 958 P.2d 740. When there are multiple defendants, the residence of one defendant can determine the venue of the entire action. See Cooper v. Amerada Hess Corp., 2000-NMCA-100, ¶ 32, 129 N.M. 710, 13 P.3d 68, cert. granted, 130 N.M. 154, 20 P.3d 811 (2000) (citing Teaver v. Miller, 53 N.M. 345, 349, 208 P.2d 156

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Carlos
147 P.3d 897 (New Mexico Court of Appeals, 2006)
Baker v. BP America Production Co.
2005 NMSC 011 (New Mexico Supreme Court, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
40 P.3d 1042, 131 N.M. 585, Counsel Stack Legal Research, https://law.counselstack.com/opinion/toscano-v-lovato-nmctapp-2002.