Anthem Ins. Companies v. Tenet Healthcare Corp.

Attorneys for Appellants

Thomas G. Stayton
Nancy G. Tinsley
Baker & Daniels
Indianapolis, IN

Attorneys for Appellees

Susan Williams
Brown, Todd and Heyburn
New Albany, IN

Ethan M. Posner
Covington & Burling
Washington, D.C.

IN THE
INDIANA SUPREME COURT

ANTHEM INSURANCE COMPANIES, INC., f/k/a Associated Insurance Companies,
Inc., d/b/a Anthem Blue Cross and Blue Shield, and ANTHEM LIFE INSURANCE
COMPANY,
Appellants (Plaintiffs below),

v.

TENET HEALTHCARE CORPORATION, f/k/a National Medical Enterprises, Inc.,
f/k/a Psychiatric Institutes of America et al.,
Appellees (Defendants below).

)
) Supreme Court No.
) 10S01-9909-CV-501
)
)
) Court of Appeals No.
) 10A01-9807-CV-243
)
)
)
)
)
)
)

APPEAL FROM THE CLARK CIRCUIT COURT
The Honorable Daniel F. Donahue, Judge
Cause No. 10C01-9512-CP-435

ON PETITION TO TRANSFER

June 8, 2000
SULLIVAN, Justice.
An Indiana insurance company sued the parent corporation of a chain
of psychiatric hospitals alleging fraud in submitting insurance claims.
The Indiana trial court found that the parent corporation did not have
sufficient contacts with Indiana to be able to be sued here consistent with
due process. Reviewing the question of law presented de novo, we find the
requirements for personal jurisdiction over the parent corporation,
mandated by both Trial Rule 4.4(A) and the Due Process Clause, satisfied
and reverse the judgment of the trial court.

Background

On December 19, 1995, Anthem Insurance Companies, Inc.,[1] filed suit
against forty-four related entities, including Tenet Healthcare Corporation
(“Tenet”),[2] three wholly-owned subsidiaries of Tenet, and 40 other
entities affiliated with Tenet (“providers”)[3] alleging fraud in
connection with claims submitted for psychiatric services rendered. Anthem
contends that these companies engaged in a fraudulent scheme to obtain
payments for psychiatric patients who did not need hospitalization or
continued treatment. Specifically, Anthem claims that these health care
providers obtained insurance payments of over $30 million by
misrepresenting patient information to extend hospital stays longer than
medically necessary.

On February 16, 1996, 40 of the Defendants moved to dismiss the
claims for lack of personal jurisdiction. Included among these Defendants
was Tenet (the parent corporation), National Medical Enterprises Hospitals,
Inc., and National Medical Enterprises Psychiatric Properties, Inc., which
are two wholly-owned subsidiaries of Tenet, and 37 providers. After
discovery and a hearing on the motion to dismiss, the trial court granted
the motion with respect to Tenet, NME Hospitals, and NME Psychiatric
Properties. Anthem appealed the dismissal of Tenet and NME Hospitals.[4]
The Court of Appeals affirmed the dismissal of Tenet, but reversed the
dismissal of NME Hospitals. See Anthem Insurance Cos. v. Tenet Healthcare
Corp., 709 N.E.2d 1060, 1069 (Ind. Ct. App. 1999). Judge Robb dissented,
believing that there were sufficient contacts to establish general personal
jurisdiction over Tenet. Id. at 1069-70. This Court granted transfer to
clarify the criteria for evaluating personal jurisdiction questions and the
standard for reviewing trial court personal jurisdiction decisions.

Discussion

I

Personal Jurisdiction Under Indiana Law. Personal jurisdiction is “a
court’s power to bring a person into its adjudicative process” and render a
valid judgment over a person. Black’s Law Dictionary 857 (7th ed. 1999);
accord Mishler v. County of Elkhart, 544 N.E.2d 149, 151 (Ind. 1989) (“To
render a valid judgment, a court must possess two forms of jurisdiction:
jurisdiction over the subject matter and jurisdiction over the parties.”).
Traditionally, courts relied on consent, service of process within a
jurisdiction, and domicile as bases for asserting jurisdiction over a
person, but the United States Supreme Court, in International Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945), formulated a new standard for
personal jurisdiction based on the defendant’s contacts with a forum state
and notions of fairness and reasonableness.

Because Indiana state trial courts are courts of general
jurisdiction, jurisdiction is presumed.[5] See Mid-States Aircraft
Engines, Inc. v. Mize Co., 467 N.E.2d 1242, 1247 (Ind. Ct. App. 1984);
Weenig v. Wood, 169 Ind. App. 413, 419-20, 349 N.E.2d 235, 240 (1976),
transfer denied. Therefore, the plaintiff need not allege jurisdiction in
its complaint. Weenig, 169 Ind. App. at 420, 349 N.E.2d at 240. A
challenge to personal jurisdiction may be raised either as an affirmative
defense in the answer to the complaint or in a motion to dismiss. See Ind.
Trial Rules 8(C) & 12(B)(2); see also Lee v. Goshen Rubber Co., 635 N.E.2d
214, 215 (Ind. Ct. App. 1994), transfer denied. In either case, once the
party contesting jurisdiction, usually the defendant, challenges the lack
of personal jurisdiction, the plaintiff must present evidence to show that
there is personal jurisdiction over the defendant. See Brokemond v.
Marshall Field & Co., 612 N.E.2d 143, 145 (Ind. Ct. App. 1993). However,
the defendant bears the burden of proving the lack of personal jurisdiction
by a preponderance of the evidence, unless the lack of jurisdiction is
apparent on the face of the complaint. Suyemasa v. Myers, 420 N.E.2d 1334,
1340 (Ind. Ct. App. 1981).

A

Trial Rule 4.4(A) – Indiana’s Long-Arm Statute. Any discussion of
personal jurisdiction in Indiana must first start with Trial Rule 4.4(A),
Indiana’s equivalent of a “long-arm statute.”[6] This trial rule provides
a limit on the exercise of jurisdiction over nonresident defendants. There
are two types of long-arm statutes: (1) those which direct the court to
exercise jurisdiction to the extent allowed by the United States and state
constitutions and (2) “enumerated act” statutes, which direct the court to
assert jurisdiction over defendants who commit any act listed in the
statute in the state. See 16 James Wm. Moore et al., Moore’s Federal
Practice §108.60[1] (3d ed. 1999).

Indiana’s statute is an “enumerated act” statute. Typically, under
such a statute, courts must proceed with a two-step analysis. First, the
court must determine if the defendant’s contacts with the forum state fall
under the long-arm statute.[7] Second, if they do, the court must then
determine whether the defendant’s contacts satisfy federal due process
analysis.

The Court of Appeals has frequently recited “‘that Indiana Trial Rule
4.4 is intended to extend personal jurisdiction of courts sitting in this
state . . . to the limits permitted under the Due Process Clause of the
Fourteenth Amendment.’” Griese-Traylor Corp. v. Lemmons, 424 N.E.2d 173,
179 (Ind. Ct. App. 1981) (quoting Valdez v. Ford, Bacon & Davis, Texas,
Inc., 62 F.R.D. 7, 14 (N.D. Ind. 1974)), transfer denied; accord Conseco,
Inc. v. Hickerson, 698 N.E.2d 816, 818 (Ind. Ct. App. 1998); Yates-Cobb v.
Hays, 681 N.E.2d 729, 732 (Ind. Ct. App. 1997); North Texas Steel Co. v.
R.R. Donnelley & Sons Co., 679 N.E.2d 513, 518 (Ind. Ct. App. 1997),
transfer denied; Torborg v. Fort Wayne Cardiology, Inc., 671 N.E.2d 947,
949 (Ind. Ct. App. 1996); Rosowsky v. University of Colorado, 653 N.E.2d
146, 148 (Ind. Ct. App. 1995), transfer denied; Fidelity Financial Servs.,
Inc. v. West, 640 N.E.2d 394, 397 (Ind. Ct. App. 1994); Brokemond, 612
N.E.2d at 145; Freemond v. Somma, 611 N.E.2d 684, 688 (Ind. Ct. App. 1993),
transfer denied. The majority of these opinions then proceed directly to a
discussion of the limits of federal due process and the accompanying
federal and state case law without first determining whether the conduct in
question falls under Indiana Trial Rule 4.4(A). See Hickerson, 698 N.E.2d
at 818; Yates-Cobb, 681 N.E.2d at 732; North Texas Steel, 679 N.E.2d at
518; Torborg, 671 N.E.2d at 949; Brokemond, 612 N.E.2d at 145; Griese-
Traylor, 424 N.E.2d at 180.

Although the result in many of these cases would likely have been the
same, this one-step analysis has the effect of ignoring T.R. 4.4(A).[8],[9]
If the Indiana long-arm statute were intended to be coextensive with the
limits of personal jurisdiction under the Due Process Clause, it could be
written with general language, such as the “any constitutional basis”
statutes used in several other states. Most courts with “enumerated act”
statutes, and indeed the correct approach under Indiana Trial Rule 4.4(A)
is to, engage in a two-step analysis, first determining whether the conduct
falls under the long-arm statute and then whether it comports with the Due
Process Clause as interpreted by the United States Supreme Court and courts
in this state. See Mart v. Hess, 703 N.E.2d 190, 192-93 (Ind. Ct. App.
1998); Fidelity Financial, 640 N.E.2d at 396-97; Lee, 635 N.E.2d at 215-16;
see also FMC Corp. v. Varonos, 892 F.2d 1308, 1310 (7th Cir. 1990); Joseph
M. Coleman & Assocs., Ltd. v. Colonial Metals, 887 F. Supp. 116, 118-19 n.2
(D. Md. 1995); Green v. Advance Ross Elecs. Corp., 427 N.E.2d 1203, 1206-07
(Ill. 1981); Lincoln v. Seawright, 310 N.W.2d 596, 599-600 (Wis. 1981).

Indiana Trial Rule 4.4(A) provides:
Acts Serving as a Basis for Jurisdiction. Any person or organization
that is a nonresident of this state, a resident of this state who has
left the state, or a person whose residence is unknown, submits to the
jurisdiction of the courts of this state as to any action arising from
the following acts committed by him or her or his or her agent:
(1) doing any business in this state;
(2) causing personal injury or property damage by an act or
omission done within this state;
(3) causing personal injury or property damage in this state by
an occurrence, act or omission done outside this state if he regularly
does or solicits business or engages in any other persistent course of
conduct, or derives substantial revenue or benefit from goods,
materials, or services used, consumed, or rendered in this state;
(4) having supplied or contracted to supply services rendered or
to be rendered or goods or materials furnished or to be furnished in
this state;
(5) owning, using, or possessing any real property or an
interest in real property within the state;
(6) contracting to insure or act as surety for or on behalf of
any person, property or risk located within this state at the time the
contract was made;
(7) living in the marital relationship within the state
notwithstanding subsequent departure from the state, as to all
obligations for alimony, custody, child support, or property
settlement, if the other party to the marital relationship continues
to reside in the state; or
(8) abusing, harassing, or disturbing the peace of, or violating
a protective or restraining order for the protection of, any person
within the state by an act or omission done in this state, or outside
this state if the act or omission is part of a continuing course of
conduct having an effect in this state.

If a person’s contacts with Indiana fall into any of the eight categories
described above, Trial Rule 4.4(A) is satisfied.

B

Due Process. After finding a basis for jurisdiction under the long-
arm statute, courts must examine whether asserting jurisdiction violates
the Due Process Clause of the Fourteenth Amendment. Cf. Moore et al.,
supra, § 108.11[2] (“A court that exercises jurisdiction over the defendant
in the absence of a proper jurisdictional basis has violated the
defendant’s right not to be deprived of property without due process and,
thus, its judgment is invalid.”). The modern-day approach to personal
jurisdiction was established in International Shoe Co. v. Washington, 326
U.S. 310 (1945), and Hanson v. Denckla, 357 U.S. 235 (1958). In
International Shoe, the United States Supreme Court stated that a person
must “have certain minimum contacts with [the forum] such that the
maintenance of the suit does not offend ‘traditional notions of fair play
and substantial justice.’” 326 U.S. at 316 (quoting Milliken v. Meyer, 311
U.S. 457, 463 (1940)). The Court went on to note that the existence of
personal jurisdiction depended on the nature and quality of the contacts
with the forum, not a “mechanical” test. International Shoe, 326 U.S. at
318-19 (“Whether due process is satisfied must depend . . . upon the
quality and nature of the activity in relation to the fair and orderly
administration of the laws which it was the purpose of the Due Process
Clause to insure.”). In Hanson, the Supreme Court added a new component to
the mix, stating that contacts were sufficient to establish personal
jurisdiction only if there is “some act by which the defendant purposefully
avails itself of the privilege of conducting activities within the forum
State, thus invoking the benefits and protections of its laws.” 357 U.S.
at 253. In other words, the contacts that are examined must be the
purposeful acts of the defendant, not the acts of the plaintiff or any
third parties.

The language in International Shoe has been interpreted to create a
two-part test to determine whether personal jurisdiction exists under the
Due Process Clause. First, courts must look at the contacts between the
defendant and the forum state to determine if they are sufficient to
establish that the defendant could “reasonably anticipate being haled into
court there.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985)
(citations omitted); accord Shaffer v. Heitner, 433 U.S. 186, 216 (1977).
If the contacts are sufficient, then the court must evaluate whether the
exercise of personal jurisdiction offends “traditional notions of fair play
and substantial justice” by weighing a variety of interests. See Burger
King, 471 U.S. at 476.
There are two types of contacts that may be sufficient to establish
jurisdiction: (1) defendant’s contacts with the forum state that are
unrelated to the basis of the lawsuit, and (2) defendant’s contacts that
are related to the subject matter of the lawsuit. This concept, first
established in International Shoe, was expanded upon in Helicopteros
Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414, 414 nn.8-9 (1984).
In Helicopteros, the Court first adopted the terms long used in the
Federal Court of Appeals to describe these contacts: general and specific
personal jurisdiction.

B-1

General Personal Jurisdiction. General personal jurisdiction refers
to the ability to be sued for any claim in a state. See Black’s Law
Dictionary 856 (7th ed. 1999) (“A court’s authority to hear all claims
against a defendant, at the place of the defendant’s domicile or the place
of service [of process], without any showing that a connection exists
between the claims and the forum state.”). In order to establish general
personal jurisdiction, the court must find continuous and systematic
contacts with the forum state such that the defendant could reasonably
foresee being haled into court in that state for any matter. However, the
claim need not arise from the defendant’s contacts with the state.

The United States Supreme Court has addressed the issue of general
personal jurisdiction in two cases, Perkins v. Benguet Consolidated Mining
Co., 342 U.S. 437, 447-49 (1952), and Helicopteros, 466 U.S. at 414-15. In
Perkins, the Court firmly established that personal jurisdiction over a
defendant for a cause unrelated to the defendant’s contacts with the forum
state may exist if the contacts are “substantial, . . . continuous and
systematic.” 342 U.S. at 446-47. The Court looked at the strength and
length of the contacts with the forum state to determine that a Philippine
corporation could be sued in Ohio for a cause of action unrelated to its
Ohio contacts when the corporation had its temporary headquarters in Ohio
and had been conducting all of its activities in Ohio since the outbreak of
World War II. Id. at 448. In Helicopteros, the Supreme Court determined
that a Columbian aviation services company was not subject to general
personal jurisdiction in Texas courts when its contacts with Texas were the
Columbian company’s continuous purchasing activity and accompanying
training. Id. at 416. The Court further made clear that the contacts
required for general personal jurisdiction were greater than those needed
to establish specific personal jurisdiction. See Helicopteros, 466 U.S. at
414-15.

The Indiana Court of Appeals has also addressed what contacts are
necessary to obtain general personal jurisdiction over a defendant in
Indiana. In North Texas Steel Co. v. R.R. Donnelley & Sons Co., 679 N.E.2d
513, 519 (Ind. Ct. App. 1997), transfer denied, the court, in determining
that no general personal jurisdiction existed over the defendant, discussed
some contacts that may constitute general personal jurisdiction, including:
(1) direct advertising and solicitation of Indiana residents, (2) offices
in Indiana, (3) employees in Indiana, (4) agents in Indiana, and (5)
property in Indiana.[10] The court also noted that “[c]ourts are more
demanding when jurisdiction is sustained only on a basis of general
jurisdiction.” Id. at 518. This echoed Brokemond v. Marshall Field & Co.,
612 N.E.2d 143 (Ind. Ct. App. 1993), where the court stated that if the
defendant’s contacts with a forum state were unrelated to the lawsuit, they
“must be fairly extensive to confer jurisdiction.” Id. at 145. In that
case, the court determined that advertising, delivering merchandise,
collecting Indiana sales tax, and distributing credit cards in Indiana were
insufficient to obtain general personal jurisdiction over the defendant.
Id. at 146. In sum, an Indiana court has general jurisdiction over a
defendant if the defendant’s contacts with Indiana are substantial,
continuous, extensive, and systematic, which Indiana courts have
interpreted to include, among other things, having offices in Indiana,
being incorporated in Indiana, and having employees in Indiana.

B-2

Specific Personal Jurisdiction. Specific personal jurisdiction is
“[j]urisdiction that stems from the defendant’s having certain minimum
contacts with the forum state so that the court may hear a case whose
issues arise from those minimum contacts.” Black’s Law Dictionary 857 (7th
ed. 1999). In other words, the defendant’s isolated contacts with a state
that are not enough to establish general personal jurisdiction may be
sufficient to allow jurisdiction over any incidents related to those
contacts. In order to establish specific personal jurisdiction over a
defendant, the defendant must have purposefully established contact with
the forum state and the basis of the lawsuit must arise out of these
contacts. See Burger King, 471 U.S. at 472.

Contacts are “acts physically performed in the forum state and acts
performed outside the forum state that have an effect within the forum.”
Moore et al., supra, § 108.42[2][a]. The Supreme Court has held that a
single contact with a forum state may be enough to establish specific
personal jurisdiction. In McGee v. International Life Insurance Co., 355
U.S. 220 (1957), the defendant, an Arizona life insurance company, sold an
insurance policy to plaintiff’s son, a California resident. Id. at 221-23.
The policy was renewed through the mail, but the defendant had no offices
in California and had not conducted any other business in California. The
Supreme Court stated that a single act can support jurisdiction so long as
it creates a “substantial connection” with the forum state and the suit is
based on that connection. See id. at 223. However, the act must be
purposeful, not a “random, fortuitous, or attenuated contact[], or . . .
the unilateral activity of another party or a third person.” Burger King,
471 U.S. at 475 (citations and internal quotations omitted).

As the foregoing suggests, the analysis of the contacts for specific
personal jurisdiction is determined on a case-by-case basis. See Mart, 703
N.E.2d at 192-93 (jurisdiction existed where former wife sent defamatory
letters to ex-husband’s new wife’s workplace, but had no visits or other
contact with Indiana); North Texas Steel, 679 N.E.2d at 519 (specific
personal jurisdiction existed where the defendant had manufactured and
shipped its product to Indiana for use by an Indiana company); Harold
Howard Farms v. Hoffman, 585 N.E.2d 18, 20-22 (Ind. Ct. App. 1992)
(Michigan horse breeder’s advertisement in Michigan journal that Indiana
horse breeder received, and telephone calls and business trips to Indiana
were insufficient to establish personal jurisdiction); Baseball Card World,
Inc. v. Pannette, 583 N.E.2d 753, 755-56 (Ind. Ct. App. 1991) (no
jurisdiction where Pennsylvania card business’s contacts with Indiana were
phone conversations with Indiana company and mailing checks to Indiana
company), transfer denied; Woodmar Coin Ctr., Inc. v. Owen, 447 N.E.2d 618,
620-21 (Ind. Ct. App. 1983) (jurisdiction existed where defendant initiated
relationship with Indiana resident with two out-of-state phone calls, and
substantial negotiations and a contract were made with the Indiana
resident), transfer denied.

Things to consider when evaluating the defendant’s contacts with the
forum state are: (1) whether the claim arises from the defendant’s forum
contacts, (2) the overall contacts of the defendant or its agent with the
forum state, (3) the foreseeability of being haled into court in that
state, (4) who initiated the contacts, and (5) whether the defendant
expected or encouraged contacts with the state. In sum, when evaluating
issues of specific personal jurisdiction, the court must examine the
quality and nature of the activities taking place within the state to
determine if they are related to the basis of the lawsuit and the result of
deliberate conduct by the defendant. See Fetner v. Maury Boyd & Assocs.,
Inc., 563 N.E.2d 1334, 1337 (Ind. Ct. App. 1990), transfer denied.

B-3

“Fair Play and Substantial Justice.” Once contacts sufficient to
establish personal jurisdiction, be it general or specific, are found, the
court must further decide whether asserting personal jurisdiction over the
defendant “offend[s] traditional notions of fair play and substantial
justice.” International Shoe, 326 U.S. at 316 (citations and internal
quotations omitted). Generally, this is not as great an issue in general
personal jurisdiction cases because the requirement for continuous and
systematic contacts with the state ensures that jurisdiction over a
particular defendant is reasonable. Nonetheless, this reasonableness
analysis is the final step in evaluating whether there is personal
jurisdiction over the defendant under the federal Due Process Clause.

The United States Supreme Court has set out five factors that must be
balanced to determine whether the assertion of jurisdiction is reasonable
and fair. They are: “(1) the burden on the defendant; (2) the forum
State’s interest in adjudicating the dispute; (3) the plaintiff’s interest
in obtaining convenience and effective relief; (4) the interstate judicial
system’s interest in obtaining the most efficient resolution of
controversies; and (5) the shared interest of the several States in
furthering fundamental substantive social policies.” Burger King, 471 U.S.
at 476-77 (numbering added) (citations and internal quotations omitted).
These interests must be balanced and weighed to make certain that asserting
jurisdiction is fair in a particular case.

This analysis only occurs if there are sufficient contacts first to
establish jurisdiction. See World-Wide Volkswagen Corp. v. Woodson, 444
U.S. 286, 294 (1980). However, the Supreme Court made clear in Asahi Metal
Industry Co. v. Superior Court, 480 U.S. 102, 116 (1987), that the fairness
inquiry is separate from the contacts question and may be used to defeat
jurisdiction even if the defendant has sufficient contacts with the forum
state. Id. at 121-22 (“[T]his case fits within the rule that ‘minimum
requirements inherent in the concept of fair play and substantial justice
may defeat the reasonableness of jurisdiction even if the defendant has
purposefully engaged in forum activities.’”) (Stevens, J., concurring)
(quoting Burger King, 471 U.S. at 477-78). After the plaintiff establishes
that there are minimum contacts, the defendant then carries the burden of
proving that asserting jurisdiction is unfair and unreasonable. See Burger
King, 471 U.S. at 477 (“[W]here a defendant who purposefully has directed
his activities at forum residents seeks to defeat jurisdiction, he must
present a compelling case that the presence of some other considerations
would render jurisdiction unreasonable.”)

These same interests have been recognized by the Indiana Court of
Appeals. See North Texas Steel, 679 N.E.2d at 519; Fidelity Financial, 640
N.E.2d at 398-99; Brokemond, 612 N.E.2d at 146. To determine if the
exercise of personal jurisdiction is reasonable in a particular case, the
Court of Appeals has also looked at “‘the relationship among the defendant,
the forum, and the litigation,’” the preservation of constitutional
principles of interstate federalism, and the existence of an alternative
forum to hear the dispute. Greise-Traylor, 424 N.E.2d at 180 (quoting
Shaffer, 433 U.S. at 204).

C

Appellate Review of Questions of Personal Jurisdiction. The decisions
of the Court of Appeals are in conflict as to the standard of review of
trial court decisions on personal jurisdiction. In this case, the Court of
Appeals applied an abuse of discretion standard to the trial court’s
ruling, stating that the “decision whether to grant a motion to dismiss
based on lack of personal jurisdiction lies within the sound discretion of
the trial court.” Anthem Ins. Cos. v. Tenet Healthcare Corp., 709 N.E.2d
1060, 1064 (Ind. Ct. App. 1999); accord Torborg, 671 N.E.2d at 949; Ryan v.
Chayes Virginia, Inc., 553 N.E.2d 1237, 1239 (Ind. Ct. App. 1990), transfer
denied. However, other Court of Appeals decisions have held that personal
jurisdiction is a question of law to be reviewed de novo. D’Iorio v.
D’Iorio, 694 N.E.2d 775, 777-78 (Ind. Ct. App. 1998); North Texas Steel,
679 N.E.2d at 519; Fidelity Financial, 640 N.E.2d at 396.

“Judicial discretion is the option which the judge may exercise
between the doing and the not doing of a thing, the doing of which cannot
be demanded as an absolute right of the party asking it to be done.”
McFarlan v. Fowler Bank City Trust Co., 214 Ind. 10, 14, 12 N.E.2d 752, 754
(1938). “Discretion, in its true sense, then, contemplates situations
where the court upon finding certain facts or circumstances may, rather
than must, act in a prescribed fashion.” 4A Kenneth M. Stroud, Indiana
Practice § 12.8 (2d ed. 1990) (emphasis in original). The existence of
personal jurisdiction over a defendant is a constitutional requirement to
rendering a valid judgment, mandated by the Due Process Clause of the
Fourteenth Amendment. Personal jurisdiction is a question of law and, as
such, it either exists or does not. See North Texas, 679 N.E.2d at 519;
Freemond, 611 N.E.2d at 687. The question of its existence is not
entrusted to a trial court’s discretion.

The Court of Appeals in this case relied on Mid-States Aircraft
Engines, Inc. v. Mize Co., 467 N.E.2d 1242, 1247 (Ind. Ct. App. 1984), as
the basis of its abuse of discretion standard of review. In that case, the
court stated that “[t]he procedure by which a trial court reaches its
decision on a T.R. 12(B)(2) challenge to in personam jurisdiction is within
the sound discretion of the trial court.” Id. (emphasis added). However,
the issue here is not the procedure used by the trial court, but the result
reached by the trial court. The Court of Appeals and indeed, this Court,
evaluate questions of law de novo and owe no deference to a trial court’s
determination of such questions. See Stroud, supra, § 12.3, Budden v.
Board of School Comm’rs, 698 N.E.2d 1157, 1160 (Ind. 1998). Therefore, the
de novo standard is employed when appellate courts review questions of
whether personal jurisdiction exists.[11]

It is worth pausing to distinguish between findings of fact and
conclusions of law in this context. The legal question of whether personal
jurisdiction exists given a set of facts is reviewable de novo. However,
the presence of personal jurisdiction is based on the existence of
jurisdictional facts. When determining these facts, the trial court is
performing its classic fact-finding function, often evaluating the
character and truthfulness of witnesses, and is in a better position to
determine these issues than a reviewing court. For this reason, a trial
court’s findings of jurisdictional facts are generally reviewed for clear
error. See Fidelity Financial, 640 N.E.2d at 396.[12] Because the Court
of Appeals used the incorrect standard of review to evaluate the legal
issue of whether the trial court had jurisdiction over Tenet and NME
Hospitals, we must now reevaluate those issues.

II

General Personal Jurisdiction over Tenet. Anthem argues that Tenet’s
contacts[13] were sufficient to establish general personal jurisdiction
over Tenet. Tenet responds by placing its contacts into several categories
and then discussing how each category itself is insufficient to establish
jurisdiction. Anthem contends that: (1) Tenet sent employees to Indiana to
conduct business with four Indiana psychiatric hospitals that were operated
by its subsidiaries; (2) Tenet transacted business with Indiana entities
spending $385,000 since 1990; (3) Tenet was involved in a several million
dollar settlement with the State of Indiana; (4) Tenet previously defended
a lawsuit in Indiana; (5) Tenet held itself out as doing business in
Indiana through a web page and other business listings; and (6) Tenet had
contact with Indiana regulatory agencies. Tenet disputes jurisdiction by
pointing to the fact that: (1) Tenet is a Nevada corporation with its
headquarters in California; (2) it had no employees in Indiana; (3) it
owned no property and held no bank accounts in Indiana; (4) it was not
registered to do business in Indiana; and (5) none of its directors or
officers reside in Indiana.

As discussed in Part I.A, supra, when evaluating questions of personal
jurisdiction, the first line of inquiry is Trial Rule 4.4(A). Rule 4.4(A)
reads:
Any person or organization that is a nonresident of this state, a
resident of this state who has left the state, or a person whose
residence is unknown, submits to the jurisdiction of the courts of
this state as to any action arising from the following acts committed
by him or her or his or her agent: (1) doing any business in this
state; . . . .

Tenet’s activities, including several business trips to Indiana and
transactions with Indiana businesses, including law firms, storage
companies, and computer companies, clearly satisfy this requirement.[14]

Next, we must review whether Tenet’s contacts with Indiana are
sufficient to satisfy the Due Process Clause of the Fourteenth Amendment.
First, to establish general personal jurisdiction, Tenet’s contacts with
Indiana must be examined to determine whether they are “continuous and
systematic.”[15] Tenet challenges its contacts with Indiana in several
ways.

Tenet first claims that its contacts with Indiana are insufficient
given that they constitute only a small percentage of its nationwide
business. In support of this proposition, Tenet relies on Landoil
Resources Corp. v. Alexander & Alexander Services, Inc., 918 F.2d 1039,
1045-46 (2d Cir. 1990), and Marsin Medical International, Inc. v. Bauhinia,
Ltd., 948 F. Supp. 180, 186 (E.D.N.Y. 1996). Neither of these cases is
binding authority on Indiana courts. Although the percentage of its
nationwide business that is conducted in Indiana may be a factor to
consider in determining whether there is personal jurisdiction over a
defendant in this state, it is by no means the only or dominant factor.
Here, given the extent and nature of Tenet’s contacts with Indiana, this
factor is not of overwhelming significance. Compare Gallert v. Courtaulds
Packaging Co., 4 F. Supp. 2d 825, 831 (S.D. Ind. 1998) (finding general
jurisdiction where defendant argued that its sales in Indiana represented
.0055% of its business), with Charlesworth v. Marco Mfg. Co., 878 F. Supp.
1196, 1201 (N.D. Ind. 1995) (finding no personal jurisdiction where
defendant’s sales in Indiana were less than .50% of its total).

Tenet also claims that its contacts with Indiana are insufficient to
establish personal jurisdiction over it based on its examination of these
contacts in isolation, not as a whole, and reliance on cases in which the
defendant had only one type of contact with the forum state. See, e.g.,
Asarco, Inc. v. Glenara Ltd., 912 F.2d 784, 787 (5th Cir. 1990) (only
contacts were port calls); Travelers Indemnity Co. v. Calvert Fire Ins.
Co., 798 F.2d 826, 833 (5th Cir. 1986) (only contacts were listing as a
client of a forum state law firm and listing as defendants in other suits).
Tenet breaks down its contacts with Indiana into four categories –
employee visits, payments to Indiana businesses, contacts with the Indiana
government, and the maintenance of a website – and attacks each category as
insufficient. However, Tenet’s contacts with Indiana must be examined
together to determine whether they are sufficient to establish general
personal jurisdiction. Cf. Hotmix & Bituminous Equip., Inc. v. Hardrock
Equip. Corp., 719 N.E.2d 824, 827 (Ind. Ct. App. 1999). Although any one
set of contacts may not be enough to establish general personal
jurisdiction over Tenet, when examined together, these groups of contacts
show that Tenet has continuous and systematic contacts with Indiana.

Although Tenet does not meet the traditional bases for establishing
general personal jurisdiction such as offices or property in Indiana, its
contacts with Indiana are nonetheless “continuous and systematic.” Tenet
made 28 business trips to Indiana, including sending its chief executive
officer and several vice-presidents. These trips involved executive-level
employees from many different departments and included real estate
transactions, recruiting, litigation, interviewing, and operations. Tenet
contracted with several Indiana businesses during this time, including
consulting firms, storage companies, law firms, and computer services.
Also, Tenet corresponded with Indiana entities concerning Medicare and
Medicaid audits and requested hearings with the Indiana Family and Social
Services Administration’s Office of Medicaid Policy and Planning. In many
of these proceedings, the hospitals were referred to as wholly-owned
subsidiaries of Tenet,[16] and concerns of the parent corporation, Tenet,
were discussed. This shows Tenet purposefully availing itself of the
privileges and powers of Indiana law. In addition, Tenet responded to a
previous lawsuit filed in Indiana and entered into a settlement agreement
with the State of Indiana in October, 1994. Looking at all these contacts
together, and not piecemeal as Tenet does, it is clear that Tenet has
enough continuous and systematic contacts with Indiana to establish general
personal jurisdiction.

The final step to ensure compliance with the Due Process Clause is
evaluating whether the exercise of general personal jurisdiction over Tenet
“offend[s] traditional notions of fair play and substantial justice.” To
make this determination, we look at the five factors from Burger King: (1)
the burden on the defendant; (2) the forum state’s interest in adjudicating
the dispute; (3) the plaintiff’s interest in obtaining convenience and
effective relief; (4) the interstate judicial system’s interest in
obtaining the most efficient resolution of controversies; and (5) the
shared interest of the several states in furthering fundamental substantive
social policies. 471 U.S. at 476-77.

Given Tenet’s contacts with Indiana, its size, and the fact that it
has already defended one lawsuit in Indiana, it does not appear it will be
too great a burden on Tenet to defend another suit in this state.
Furthermore, Indiana has an interest in seeing its residents and
corporations protected from fraud. Finally, it is unlikely that any other
state will have jurisdiction over all of the parties to the transaction.
Therefore, this suit can be most efficiently resolved in Indiana. Given
these concerns, we cannot say that the exercise of general personal
jurisdiction over Tenet “offend[s] traditional notions of fair play and
substantial justice.”[17]

III

Specific Personal Jurisdiction over NME Hospitals. Anthem also
asserts that specific personal jurisdiction may be established over NME
Hospitals, Tenet’s subsidiary, based on letters and telephone calls to
Anthem in order to secure payments from Anthem. NME Hospitals does not
dispute these calls and correspondences, but claims that they are
insufficient to establish specific personal jurisdiction because “[t]hese
fortuitous phone calls and letters are not enough to support personal
jurisdiction over the owner of these Texas facilities.” The parties
stipulated to the following:
On numerous occasions from January 1, 1989 through December 31, 1991,
employees working at health care facilities owned by Nonresident
Providers sent correspondences and made telephone calls to Associated
Insurance Companies, Inc., in the State of Indiana regarding the
processing and payment of health insurance claims submitted to
Plaintiffs for health care services performed wholly outside of
Indiana.

First, NME Hospitals’s contacts must fall under Indiana’s long-arm
statute, Trial Rule 4.4(A). It appears that NME Hospitals’s phone calls
and correspondence were in furtherance of its business in Indiana and
therefore, the contacts could constitute “doing any business” in Indiana.
See Ind. Trial Rule 4.4(A)(1).

Next, because there are not sufficient contacts to support general
personal jurisdiction, NME Hospitals’s contacts must satisfy the due
process requirements of specific personal jurisdiction: they must be
related to the cause of action and the defendant must have purposefully
availed itself of the jurisdiction of the forum state. In support of its
argument that these phone calls and letters are not enough to establish
personal jurisdiction, NME Hospitals relies on Rosowsky v. University of
Colorado, 653 N.E.2d 146, 149 (Ind. Ct. App. 1995), transfer denied, and
Baseball Card World, Inc. v. Pannette, 583 N.E.2d 753, 755-56 (Ind. Ct.
App. 1991), transfer denied, in which the Court of Appeals held in each
case that personal jurisdiction may not be based solely on “interstate
letters and calls.”

Here, however, the phone calls and letters are the very means by
which Anthem claims that NME Hospitals perpetrated its fraud. As the
United States Supreme Court observed in Burger King, defendants should not
be able to escape the consequences of their actions by not physically
entering a jurisdiction. 471 U.S. at 467 (“So long as a commercial actor’s
efforts are ‘purposefully directed’ toward residents of another State, we
have consistently rejected the notion that an absence of physical contacts
can deter personal jurisdiction there.”). The Court of Appeals also
recognized this doctrine in Mullen v. Cogdell, 643 N.E.2d 390, 398 (Ind.
Ct. App. 1994), transfer denied, in which the court found jurisdiction over
a defendant whose only contacts with Indiana were letters and phone calls.
The court enjoyed jurisdiction in that case because the calls and letters
were made in furtherance of a fraudulent real estate deal. “A defendant
should expect to answer in the state of residence of those he defrauded
when correspondences and telephone calls were purposefully made to that
state in furtherance of the fraud.” Rosowsky, 653 N.E.2d at 149 n.1. We
agree with the Court of Appeals that “NME Hospitals purposefully availed
itself of the benefits and responsibilities of doing business in Indiana
when it chose to directly contact Anthem regarding insurance payments.”
Anthem Ins. Cos. v. Tenet Healthcare Corp., 709 N.E.2d 1060, 1069 (Ind. Ct.
App. 1999). There are sufficient contacts to establish specific personal
jurisdiction over NME Hospitals in Indiana.

Finally, we must balance the fairness factors to determine if the
exercise of specific personal jurisdiction is reasonable in this case.
Although there will be a substantial burden on the NME Hospitals, this
factor is outweighed by Indiana’s interest in preventing fraudulent conduct
against its citizens, Anthem’s interest in obtaining a remedy for the
alleged fraud, and the judicial system’s interest in avoiding multiple
litigation of the same facts. Therefore, the exercise of specific personal
jurisdiction over NME Hospitals complies with Indiana Trial Rule 4.4(A) and
the Due Process Clause.

Conclusion

The judgment of the trial court is reversed and this case is remanded
for proceedings consistent with this opinion.

SHEPARD, C.J., and RUCKER, J., concur.
DICKSON, J., concurs as to Parts II and III, and concurs in result
as to Part I.
BOEHM, J., not participating.
-----------------------
[1] Anthem Life Insurance Company is a co-plaintiff in this case. Anthem
Insurance Companies, Inc., was formerly known as Associated Insurance
Companies, Inc., and does business as Anthem Blue Cross and Blue Shield.
Anthem Insurance Companies, Inc., is incorporated under Indiana law with
its principal place of business in Indianapolis. Anthem Life Insurance
Company is incorporated under Texas law with its principal place of
business in Texas. In this opinion, the companies will simply be referred
to as Anthem.

[2] Tenet was formerly known as National Medical Enterprises, Inc., but
changed its name in 1995 to Tenet Healthcare Corporation and will be
referred to as Tenet throughout this opinion.

[3] These are entities within the Tenet corporate family that own and
operate hospitals or other health care facilities that provide psychiatric
services.

[4] Anthem did not appeal the decision to dismiss NME Psychiatric
Properties, but the 37 providers appealed the trial court’s decision to
deny the motion to dismiss as to them. The Court of Appeals affirmed the
trial court’s decision in a separate not-for-publication opinion. See NME
Psychiatric Hosps., Inc. v. Anthem Ins. Cos., No. 10A01-9810-CV-368 (Ind.
Ct. App. June 4, 1999).
[5] The same is not true for federal courts, which are of limited
jurisdiction. In federal courts, the plaintiff must plead and prove
jurisdiction if it is challenged. See Oddi v. Mariner-Denver, Inc., 461 F.
Supp. 306, 308, 310 (S.D. Ind. 1978).
[6] Although Indiana has a trial rule, it performs the same function as a
long-arm statute and will be referred to throughout this opinion as either
Trial Rule 4.4(A) or Indiana’s long-arm statute.

[7] Trial Rule 4.4(A) applies to nonresidents or residents who have left
the state. The court may still use the traditional bases discussed above
to assert jurisdiction over a defendant including consent, service of
process within the state, and domicile in the state.
[8] We acknowledge that we denied transfer in several of these cases.

[9] Many of the decisions rely on a comment to the rule which reads, “The
adoption of this rule will expand the in personam jurisdiction of the
courts of this state to the limits permitted under the Due Process Clause
of the Fourteenth Amendment.” Civil Code Study Commission Comments to Trial
Rule 4.4. The better interpretation of this comment is “that the specific
enumerated act provisions of the statute . . . be broadly interpreted so
that if the language of the statute rationally can be construed to reach
the defendant’s situation, the statute should be so construed.” Moore et
al., supra, § 108.60[3][a] (citing Robert Leflar et al., American Conflicts
of Law 103 (4th ed. 1986)).
[10] In North Texas Steel, the Court of Appeals went on to hold that
Indiana had specific personal jurisdiction over the defendant. See 679
N.E.2d at 519. We express no opinion as to that conclusion.
[11] The use of the de novo standard of review for questions of personal
jurisdiction is also supported by cases in other jurisdictions. See, e.g.,
Latshaw v. Johnston, 167 F.3d 208, 210-11 (5th Cir. 1999); Steel Warehouse
v. Leach, 154 F.3d 712, 714 (7th Cir. 1998).
[12] The trial court may decide the jurisdictional facts using only a paper
record, in which case it appears that the appellate court is in as good a
position as the trial court to determine the existence of the
jurisdictional facts, and should review the trial court’s decision de novo.
Cf. Houser v. State, 678 N.E.2d 95, 98 (Ind. 1997) (“Because both the
appellate and trial courts are reviewing the paper record submitted to the
magistrate, there is no reason for appellate courts to defer to the trial
court’s finding that a substantial basis existed for issuing the
warrant.”).

[13] The parties dispute what contacts are relevant in determining the
existence of personal jurisdiction. Tenet claims that only its contacts
when the complaint was filed, in December 1995, should count when
determining jurisdiction, relying on Klinghoffer v. S.N.C. Achille Lauro,
937 F.2d 44, 52 (2d Cir. 1991). Anthem contends that the trial court may
look at the contacts occurring during the course of the alleged fraudulent
relationship up until the complaint was filed, citing Simpson v. Quality
Oil Co., 723 F. Supp. 382, 391 n.6 (S.D. Ind. 1989) (“[P]ost-tort activity
has a one-way ratchet effect. Nonresident defendants cannot defeat
personal jurisdiction by severing all contact with the forum state after
the [alleged bad act]. However, they can tip the balance of factors toward
personal jurisdiction by expanding their contact with the forum after the
[alleged bad act].”). We agree with Anthem that nonresident defendants
should not be allowed to escape personal jurisdiction by ending their
contact with the forum state after they commit a wrong.

[14] Tenet contends that its defense of a prior lawsuit and settlement do
not constitute “doing business” under Trial Rule 4.4(A)(1). Assuming
without deciding that this is correct, those contacts are not necessary to
establish that Tenet was “doing business” in Indiana.

[15] Because Tenet’s contacts are not related to the subject matter of the
lawsuit, there is no basis for specific personal jurisdiction.
[16] The records refer to National Medical Enterprises, Inc., which was the
previous name of Tenet.
[17] Anthem also argued that it was entitled to jurisdiction over Tenet
based on the contacts of its subsidiaries with Indiana. Although the
contacts of a subsidiary may be aggregated with the contacts of the parent
to achieve personal jurisdiction over the parent, this is only possible in
the narrow instances “[w]here a parent utilizes its subsidiary in such a
way that an agency relationship can be perceived . . . [or] the parent has
greater control over the subsidiary than normally associated with common
ownership and directorship or where the subsidiary is merely an empty
shell.” Wesleyan Pension Fund, Inc. v. First Albany Corp., 964 F. Supp.
1255, 1261 (S.D. Ind. 1997) (citations and internal quotations omitted).
This does not appear to be the case here and given the resolution of the
general personal jurisdiction question, this issue need not be addressed.
For the same reason, we do not address Anthem’s claim that the trial court
abused its discretion by failing to allow Anthem to complete discovery on
Tenet’s parent/subsidiary relationships.