ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeffrey A. Doty Jeffrey J. Mortier
Indianapolis, Indiana Julia Blackwell Gelinas
Lucy R. Dollens
Indianapolis, Indiana
______________________________________________________________________________
In the
Indiana Supreme Court
_________________________________
No. 49S02-0609-CV-339
AMERICAN FAMILY INSURANCE
COMPANY, A/S/O ALICE GRIEPENSTROH,
Appellant (Plaintiff below),
v.
FORD MOTOR COMPANY,
Appellee (Defendant below).
_________________________________
Appeal from the Marion Superior Court, No. 49D03-0503-CT-9782
The Honorable Patrick McCarty, Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 49A02-0507-CV-684
_________________________________
December 5, 2006
Boehm, J.
We hold that the term “principal office” as used in subsections (4) and (10) of Trial Rule
75(A) refers to a domestic or foreign corporation’s registered office in Indiana. We also hold
that subsection (10) of Trial Rule 75(A) establishes preferred venue under two circumstances:
(1) when none of the preceding nine subsections are applicable or (2) when “all the defendants
are nonresident individuals or nonresident organizations without a principal office in the state.”
Facts and Procedural History
Ford Motor Company is a Delaware corporation with its headquarters in Michigan. Ford
has no offices in Indiana but is authorized to do business in Indiana. As required by Indiana
Code section 23-1-24-1, 1 Ford maintains a registered office and registered agent in Indiana,
namely, CT Corporation in Marion County. 2
In 2003, Alice Griepenstroh, a Spencer County resident, was driving her Ford Explorer in
Spencer County when it caught fire. Griepenstroh was reimbursed for damage to her vehicle un-
der her automobile insurance policy issued by American Family Insurance. Griepenstroh’s claim
was handled by the American Family office in Marion County.
American Family, as Griepenstroh’s subrogee, sued Ford in Marion County, alleging
negligence in the manufacture of the automobile and breaches of express and implied warranties
and seeking to recover the amount it had reimbursed Griepenstroh. American Family’s com-
plaint alleged that Marion County was a county of preferred venue under Indiana Trial Rule 75
but did not specify which of the ten subsections of Trial Rule 75 it contended was applicable.
The trial court granted Ford’s motion to transfer venue to Spencer County as the county
of preferred venue. American Family appealed pursuant to Indiana Rule of Appellate Procedure
14(A)(8), which provides for interlocutory appeal of right from an order transferring venue. The
1
Indiana Code section 23-1-24-1 applies to foreign corporations authorized to do business in Indiana. It
provides:
Sec. 1. Each corporation must continuously maintain in Indiana:
(1) a registered office; and
(2) a registered agent, who must be:
(A) an individual who resides in Indiana and whose business office is identical
with the registered office;
(B) a domestic corporation or not-for-profit domestic corporation whose business
office is identical with the registered office; or
(C) a foreign corporation or not-for-profit foreign corporation authorized to
transact business in Indiana whose business office is identical with the registered
office.
2
Although neither party placed this information on the record, we take judicial notice of Ford’s desig-
nated registered office and agent on file at the Indiana Secretary of State as required by Indiana Code sec-
tion 23-1-49-3.
2
Court of Appeals reversed, concluding that Marion County was a preferred venue under Trial
Rule 75(A)(10). American Family Ins. Co. v. Ford Motor Co., 848 N.E.2d 319 (Ind. Ct. App.
2006). We granted transfer. No. 49S02-0609-CV-339, 2006 Ind. LEXIS 866 (Ind. Sept. 26,
2006).
The venue provisions relevant to this case are subsections (3), (4), and (10) of Trial Rule
75(A). They confer preferred venue in the following:
(3) the county where the accident or collision occurred, if the complaint includes a
claim for injuries relating to the operation of a motor vehicle . . .
(4) the county where . . . the principal office of a defendant organization is located
...
(10) the county where either one or more individual plaintiffs reside, the principal
office of any plaintiff organization or governmental organization is located, or the
office of any such plaintiff organization or governmental organization to which
the claim relates or out of which the claim arose is located, if the case is not sub-
ject to the requirements of subsections (1) through (9) of this subdivision or if all
the defendants are nonresident individuals or nonresident organizations without a
principal office in the state.
T. R. 75(A)(3), (4), (10).
Both parties and the Court of Appeals addressed venue in this case on the assumption that
Ford had no “principal office” in Indiana, as this term appears in subsections (4) and (10). For
the reasons explained below, we disagree with that premise and conclude that venue in Marion
County was proper under Trial Rule 75(A)(4) because Marion County is the county where Ford
has its “principal office in the state.” Although we agree with the Court of Appeals that venue in
Marion County was proper, we grant transfer to attempt to clarify the venue rules applicable to
suits against foreign corporations because the same issue arises frequently and we hope to avoid
unnecessary litigation over venue.
Standard of Review
The Court of Appeals has stated that a trial court’s order on a motion to transfer venue is
reviewed for an abuse of discretion, which can be found if the trial court’s decision is clearly
3
against the logic and effect of the facts and circumstances before the court or it misinterprets the
law. See, e.g., Monroe Guar. Ins. Co. v. Berrier, 827 N.E.2d 158, 159 (Ind. Ct. App. 2005), t-
rans. denied (citing Bostic v. House of James, Inc., 784 N.E.2d 509, 510-11 (Ind. Ct. App. 2003),
trans. denied). There is little practical difference between these formulations, but we think that
factual findings linked to a ruling on a motion under Rule 75(A) are reviewed under a clearly
erroneous standard and rulings of law are reviewed de novo. If factual determinations are based
on a paper record, they are also reviewed de novo. See, e.g., Equicor Dev., Inc. v. Westfield-
Washington Twp. Plan Comm’n, 758 N.E.2d 34, 37 (Ind. 2001).
I. Preferred Venue Under Trial Rule 75(A)(4)
Trial Rule 75 governs venue requirements in Indiana. It contains ten subsections, each
setting forth criteria establishing “preferred” venue. A case or complaint may be filed in any
county in Indiana, but if the complaint is not filed in a preferred venue, the court is required to
transfer the case to a preferred venue upon the proper request from a party. T.R. 75(A). The rule
does not create a priority among the subsections establishing preferred venue. Bostic, 784
N.E.2d at 511. If the complaint is filed in a county of preferred venue, then the trial court has no
authority to transfer the case based solely on preferred venue in one or more other counties. 3 See
Meridian Mut. Ins. Co. v. Harter, 671 N.E.2d 861, 863 (Ind. 1996). Subsection (4) of the rule
establishes preferred venue in “the county where . . . the principal office of a defendant organiza-
tion is located . . . .” T.R. 75(A)(4). Thus, if a case is filed in the county where the principal of-
fice of a defendant organization is located, transfer to another county on grounds of preferred
venue would be inappropriate.
The term “principal office” as used in Trial Rule 75(A) has never been addressed by this
Court. However, two opinions of the Court of Appeals have interpreted the term “principal of-
fice” as used in subsection (4) of the rule. Pratt v. Pierce, 713 N.E.2d 312, 315 (Ind. Ct. App.
1999); Western Sales & Serv. v. Ford Motor Co., 576 N.E.2d 631, 632 (Ind. Ct. App. 1991). In
Western Sales the Court of Appeals rejected the argument that the content of the phrase “princi-
pal office” in the venue rule was supplied by the definition of that term in Indiana Code section
3
Transfer may be proper on other grounds, such as another action pending. See Meridian Mut. Ins. Co. v.
Harter, 671 N.E.2d 861, 863 n.4 (Ind. 1996).
4
23-1-20-19 (1998) for purposes of the Business Corporation Act. That section defines “principal
office” as “the office (in or out of Indiana) so designated in the annual or biennial report where
the principal executive offices of a domestic or foreign corporation are located.” I.C. § 23-1-20-
19 (2004).
We agree that this definition from the Business Corporation Act is not what the venue
rules had in mind. Indiana Code section 23-1-20-19 was enacted over fifteen years after the
adoption of Trial Rule 75 as a part of the overhaul of the Business Corporation Act. The cur-
rently effective Rules of Trial Procedure, including Trial Rule 75, were adopted in 1970. At that
time Indiana’s corporation law required that both foreign and domestic corporations maintain a
“principal office in this state” where a designated resident agent for service of process could be
found. Ind. Code § 25-204, 4 25-306 5 (Burns Code Ed. Repl. 1969). It is that office to which
Trial Rule 75 referred by using the same phrase to provide in subsection (4) that preferred venue
lies in “the county where . . . the principal office of a defendant organization is located.” When
the Business Corporation Act was adopted in 1986, what had formerly been called the “principal
office in this state” was designated the “registered office.” I.C. § 23-1-24-1 (2004). This
avoided the confusion between “principal place of business,” which means the corporate head-
quarters for purposes of federal diversity jurisdiction under 28 U.S.C. section 1332, and “princi-
pal office,” which means the place in Indiana where one serves the corporate registered agent.
By adopting the term “registered office,” the Business Corporation Act did not intend to change
the venue rules for foreign corporations. Indeed, foreign corporations qualified to do business
under other laws, for example, the Financial Institutions Act, to this day are required to have a
4
Indiana Code section 25-204 (Burns Code Ed. Repl. 1969), found under Chapter 2 “Domestic Corpora-
tions for Profit,” stated in pertinent part:
Principal office—Resident agent for service of process.—Each corporation shall maintain
an office or place of business in this state, to be known as the “principal office,” and shall
have an officer or agent resident in this state and designated as the resident agent of such
corporation, in charge thereof.
5
Indiana Code section 25-306 (Burns Code Ed. Repl. 1969), found under Chapter 3 “Foreign Corpora-
tions for Profit,” stated in pertinent part:
Resident agent for service of process.—Each foreign corporation admitted to do business
in this state, shall keep constantly on file in the office of the secretary of state an affidavit
of its president or a vice-president and its secretary or an assistant secretary, setting forth
the location of its principal office in this state, and the name of some person who may be
found at such office as its agent or representative on who service of legal process may be
had in all suits and actions that may be commenced against it.
(emphasis added).
5
“principal office in this state.” See, e.g., I.C. § 28-1-22-12. In short, at the time the current
Rules of Trial Procedure were proposed, the phrase “principal office” referred to what is cur-
rently known as the “registered office” of a foreign corporation qualified to do business in Indi-
ana. Thus, if a foreign corporation is qualified to do business in Indiana under the Business Cor-
poration Act, it will necessarily have a “principal office in the state”—now called a “registered
office”—irrespective of where its corporate headquarters may be. Accordingly, subsection (4) of
Trial Rule 75 establishes preferred venue in the county of the defendant organization’s registered
office.
We conclude that defendant Ford has a principal office in the state for venue purposes.
The same is true of all foreign corporations qualified to do business in Indiana in compliance
with the Business Corporation Act. Ford has designated CT Corporation, located in Marion
County, as its registered agent. Because Ford’s registered office in the state is located in Marion
County, American Family filed its complaint in a preferred venue under subsection (4) of the
rule. Transfer to Spencer County was therefore inappropriate.
II. Preferred Venue Under Trial Rule 75(A)(10)
The Court of Appeals concluded that Marion County was a preferred venue under sub-
section (10) of Trial Rule 75(A)(4). Subsection (10) establishes preferred venue in the county
where the plaintiff resides, under certain circumstances. It differs in kind from the preceding
nine subsections of Trial Rule 75(A). Each of the first nine subsections provides a freestanding
basis for preferred venue. Subsection (10), however, is available to establish preferred venue
only “if the case is not subject to the requirements of subsections (1) through (9) of [the rule] or
if all the defendants are nonresident individuals or nonresident organizations without a principal
office in the state.” T.R. 75(A)(10).
In debating proper venue, both American Family and Ford proceeded from the premise
that Ford was a nonresident organization without a principal office in the state. 6 As a result, the
6
Ford argued that subsection (3) of the rule established preferred venue in Spencer County, where “the
accident” occurred. Ford contended that none of the other provisions of Trial Rule 75 conferred preferred
venue in Marion County. Specifically, Ford argued that subsection (10) of the rule did not establish pre-
ferred venue in Marion County because subsection (10) applied only if preferred venue could not be es-
6
parties disputed whether subsection (10) applied only if none of the first nine subsections estab-
lished preferred venue or whether the language following “or” in subsection (10) constituted a
freestanding basis for preferred venue. A host of cases from this Court and the Court of Appeals
have referred to the first of these two but omitted reference to the second. We have also stated
that subsection (10) establishes preferred venue only in the event that preferred venue cannot be
established by subsections (1) through (9). See, e.g., Meridian Mut., 671 N.E.2d at 863 n.3
(“T.R. 75(A)(10)), by its own terms, is applicable only when T.R. 75(A)(1)-(9) do not provide
preferred venue.”). The commentary on subsection (10) also states that “[w]hen the other provi-
sions of this subdivision fix venue at a different place, the provision is not applicable.” 7 The
Court of Appeals nevertheless found the language of Trial Rule 75(A)(10) to be clear and unam-
biguous. The court held that the subsection applies under either of two conditions: (1) preferred
venue cannot be established under one of the preceding nine subsections or (2) “all the defen-
dants are nonresident individuals or nonresident organizations without a principal office in the
state.” Id. As the Court of Appeals pointed out, no cases from this Court or the Court of Ap-
peals addressed proper venue where all of the defendants were either nonresident individuals or
nonresident organizations with no “principal office in the state.” American Family, 848 N.E.2d
at 323. Accordingly, to the extent we or the Court of Appeals stated that subsection (10) applied
only if none of the other subsections were applicable, that was controlling in that case but was
pure dicta if taken to exclude application of subsection (10) under the circumstances described
after the “or.”
If taken as a complete summary of the effect of subsection (10), these statements from
earlier decisions and the commentary to the rule read the last phrase of subsection (10) out of the
tablished under any of the preceding nine subsections of that rule. Ford alternatively argued that if sub-
section (10) established preferred venue in this case, preferred venue would lie in Griepenstroh’s county
of residence, Spencer County, rather than Marion County, where American Family’s office handled that
claim.
American Family contended that subsection (10) of the rule applied if either (1) no other subsec-
tion applied or (2) the defendant was a nonresident organization without a principal office in the state.
American Family argued that Ford was a nonresident without a principal office and American Family, the
plaintiff, had processed the claim in Marion County. Therefore, American Family contended Marion
County was preferred venue under subsection (10) as the county of the plaintiff’s (American Family’s)
office “to which the claim relates.” Although these arguments have no effect on the disposition of this
issue, we address them to clarify the applicability of Trial Rule 75(A)(10).
7
1970 Civil Code Study Commission Comments, reprinted in 4A William F. Harvey, Indiana Practice:
Rules of Procedure Annotated 143 (3d ed. 2003).
7
Rule. There would be no purpose to the provision for cases where only nonresidents are defen-
dants if subsection (10) applied only if (1) through (9) are inapplicable. The language is not sur-
plus. Rather, it expanded to all civil actions the statutory provision allowing accident claims
against nonresidents to be brought in the county of the plaintiff’s residence. As explained in the
comments to the rule at the time the Trial Rules were adopted, “[s]ubsection (10) . . . follows the
policy of Burns’ Stat., § 2-709 (Repl. 1968) and many special statutes fixing venue at the place
of the plaintiff’s residence in certain situations.” 8 The cited statute, Burns’ section 2-709, pro-
vided that “[c]ivil actions against nonresident motorists may be brought in the county of the resi-
dence of the plaintiff or in the county where the accident or collision occurred, at the election of
the plaintiff.” This predecessor venue provision applied only to suits against “nonresident mo-
torists.” The citation by the commentary demonstrates that the purpose of this final provision of
subsection (10) is to provide preferred venue at the plaintiff’s convenience if no venue in Indiana
is particularly convenient for the defendants because of their nonresident status. We therefore
agree with the Court of Appeals that the rule provides for preferred venue if all defendants are
nonresident individuals or nonresident organizations without a principal office in Indiana. In
such a case, the plaintiff’s residence or office establishes preferred venue as specified in the rule.
Ford argues that this interpretation of subsection (10) “produce[s] an illogical result con-
trary to the purpose of the rule – convenience.” We disagree that “convenience” is the only pur-
pose of the rule if convenience is taken to mean proximity to the locale of the event giving rise to
the action. The county of the plaintiff’s residence may not always produce the most convenient
forum for nonresident defendants. In cases arising from accidents involving nonresident indi-
viduals, for example, venue at the site of the accident may very well be more convenient than the
plaintiff’s residence. However, Trial Rule 75(A) does not always produce preferred venue at the
most convenient location. It rather provides a number of grounds that can establish preferred
venue. These include counties of residence of the parties in various circumstances, more fre-
quently conferring preferred venue on the county where the defendant is found. 9
8
Id.
9
Trial Rule 75(A)(1) and (4) expressly confer preferred venue on the residence of an individual defendant
and the principal office of an organizational defendant. In contrast, a plaintiff’s residence provides “pre-
ferred venue” only if an action relates to real estate or a chattel in the county of a plaintiff’s residence,
8
In sum, we agree with the Court of Appeals that the language in Trial Rule 75(A)(10) fol-
lowing “or” is not redundant and permits claims against certain nonresidents to be brought at the
county of the plaintiff’s “residence” or “office.” Based on the plain language of the rule and the
1970 Civil Code Study Commission Comments, we conclude that subsection (10) of Trial Rule
75(A) applies in two circumstances: (1) when none of the preceding nine subsections establish
preferred venue or (2) when all of the defendants are nonresident individuals or nonresident or-
ganizations without a “principal office in the state.” However, because Ford has a principal of-
fice in the state, subsection (4) applies and the only defendant in this case is not “without a prin-
cipal office in the state,” so neither circumstance triggering the applicability of subsection (10) is
present.
Conclusion
The trial court’s order granting Ford’s motion for change of venue is reversed. This case
is remanded to the Marion Superior Court.
Shepard, C.J., and Dickson, Sullivan, and Rucker, J.J., concur.
(A)(2); an individual plaintiff sues a governmental entity, (A)(3); or under the limited circumstances pro-
vided in (A)(10).
9