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Baker v. BP America Production Co.3/31/2005
and the county where the action originated. As previously noted, Subsection F does not contain the same language in Subsection A that allows the residency of any one defendant to establish venue for all.
As we read the venue statute, Toscano's conclusion that venue for one is venue for all is overly broad as applied in Toscano, and as applied in these circumstances. The statute instructs that if an action is against a resident defendant, then venue based on that defendant's residence is proper for all resident defendants. See § 38-3-1(A). Venue based on a defendant's residence would certainly be proper for a non-resident defendant, including a foreign corporation without a statutory agent, because venue is proper for such defendants in any New Mexico county. See § 38-3-1(F). However, the statute does not authorize venue for residents and foreign corporations with statutory agents based on proper venue for a non-resident, including a foreign corporation without a statutory agent. See § 38-3-1. Thus, when the only defendants are foreign corporations, Subsection F clearly designates the limited venues where a foreign corporation with a statutory agent can be sued. To rule otherwise would allow a plaintiff to subvert the distinct rules the legislature has designed for both resident defendants and foreign corporations with statutory agents.
In Toscano, the Court of Appeals candidly recognized that its broad interpretation of the venue statute appeared contrary to legislative intent. 2002-NMCA-022, 27 ("This result might not comport with the intent of the legislature in drafting the venue statute. Subsection F is designed to protect foreign corporations from being subject to suit anywhere in the state by limiting the options available to plaintiffs."). Nevertheless, the Court of Appeals felt compelled to reach the opposite result based on the special situation of insurance companies, which like banks are excluded from the Business Corporation Act. Id. 21-22 (relying on Sunwest Bank, 1998-NMSC-012, 15-16). We also acknowledge that the Court of Appeals was driven to its result based on the unusual joinder rule for insurers providing mandatory automobile insurance. See id. 1 (framing the opinion as addressing the implications of Raskob on the issue of venue). While we understand the rationale behind the Court of Appeals' holding, we find that those policy considerations do not justify the court's overly broad interpretation of the venue statute and of our precedent.
In reaching its decision in Toscano, the Court of Appeals relied on Teaver v. Miller, 53 N.M. 345, 208 P.2d 156 (1949). In Teaver, this Court stated that "the residence of one of the defendants determines the venue of the action against all." Id. at 349, 208 P.2d at 159 (quoted authority omitted) (emphasis added). Unlike the case before us, Teaver involved multiple resident defendants, a situation expressly addressed by the plain terms of what is now Section 38-3-1(A) of the statute. We find the application of Teaver to the situation in Toscano unsupported by the express terms of Subsection F and contrary to legislative intent. Nothing in the statute indicates that the legislature intended plaintiffs to be able to overlook the residency of the parties to an automobile accident, and instead base venue for all solely on a proper venue for an insurance company.
As a direct result of Toscano, a litigant can file an action in a county different from the scene of an accident and from the residency of any party. Even heeding the expansive nature of our venue statute, we cannot conclude that the legislature intended to give any party such unbridled discretion. As we noted previously, our venue rules attempt t
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