author: FRIEDLANDER, Judge.'

text:
    In the Matter of Mental Health Actions for A.S. Sara Townsend, Appellant.
    No. 10A01-1211-MH-501.
    Court of Appeals of Indiana.
    Oct. 11, 2013.

      Matthew J. McGovern, Anderson, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Elizabeth Rogers, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee State of Indiana.
    Steven A. Gustafson, The Law Offices of Richard R. Fox, New Albany, IN, Attorney for Appellee A.S.
   OPINION

FRIEDLANDER, Judge.'

Sara Townsend appeals a finding of indirect civil contempt against her issued by the Clark Circuit Court in conjunction with a mental health detention proceeding initiated by Townsend against A.S. Townsend presents the following restated issues for review:

1. Did the trial court err in finding Townsend in indirect civil contempt?
2. Did the trial court err in ordering Townsend to pay A.S.’s attorney and medical expenses?

We affirm in part, reverse in part, and remand.

The facts favorable to the judgment are that Townsend and A.S. were nurses and coworkers at Jewish Hospital in Louisville, Kentucky. A.S. was experiencing marital problems and the two spoke occasionally about those problems, as well as other stressful situations in A.S.’s life. On August 31, 2012, Townsend filed an Application For Emergency Detention (the Application) at the Lifespring Hospital, a mental health facility, seeking a seventy-two-hour emergency detention of A.S. on grounds that A.S. was dangerous and gravely disabled. On the Application, Townsend indicated that A.S. was dangerous to herself or others for the following reasons: “Distraught over marital troubles. Told friends & coworkers that she wanted to end it all. Carrying a loaded gun under seat of car. Made a list of people to take care of others when she’s gone.” Appellant’s Appendix at 7. She also indicated that immediate emergency detention was necessary for the following reasons: “[W]ill harm himself/kill herself. Clinically depressed. Suicidal thoughts. Means to harm self. Refused to seek help voluntarily. Off her medicine (antidepressants)!.] Will not talk to her therapist.” Id. This triggered emergency detention proceedings under Ind.Code Ann. § 12-26-5-1 (West, Westlaw current with all 2013 legislation). Pursuant to that provision, on the strength of the Application, and without having met or evaluated A.S., Dr. Ahmad Ismail signed a “Physician Statement — Emergency Detention”, recommending that A.S. be detained for seventy-two hours. Id. at 9-10. This document was presented to Judge Daniel E. Moore of the Clark Circuit Court. Based upon the representations in the physician statement, Judge Moore signed a document entitled, “Endorsement and Authorization by Judicial Officer Authorized to Issue Warrants for Arrest” (the detention warrant). Appellee’s Appendix at 6-7. This detention warrant authorized police officers to arrest and detain A.S.

While these events were unfolding, A.S. was visiting a friend, Officer Tom Mitchell of the Jeffersonville Police Department. Mitchell was a patient at Floyd Memorial Hospital at the time. During her visit with Officer Mitchell, A.S. received a phone call from her husband informing her that police officers had arrived to take her into custody. She drove home immediately. A.S. knew one of the officers on the scene, Tom Higdon. Officer Higdon told her that everything would be okay. When they arrived at Wellstone Memorial Hospital (Wellstone), Officer Higdon stated to hospital personnel, “I highly doubt that they’ll keep her. She doesn’t need to be here. We know her[.]” Transcript at 152. A.S. was informed that she could not be discharged until she was examined and cleared by a physician. Because no physician was available, she was admitted.

On Saturday, Officer Mitchell telephoned Judge Moore and stated his opinion that there was nothing wrong with A.S. Officer Mitchell told the judge he believed “there was something wrong with the paperwork and that [A.S.] wasn’t exhibiting any of the problem signs that would lend themselves to an emergency detention.” Appellee’s Appendix at 6. Officer Mitchell asked the judge to look into the situation. This prompted Judge Moore to telephone Wellstone and inquire into the situation. He spoke with a nursing supervisor who also shared her own concerns and wondered why A.S. was detained. Judge Moore asked the supervisor to have the doctor making rounds that day call him. That doctor was psychiatrist Dr. Irfan Afaq. Dr. Afaq telephoned Judge Moore, who explained his concerns about A.S.’s detention. Dr. Afaq agreed to examine A.S. and report back to the judge. Dr. Afaq did this and informed the judge that he found “no clinical problems or symptoms that would indicate a mental illness condition ... or disability.” Id. at 15. Dr. Afaq suggested that A.S. remain at the facility for another twenty-four hours, after which she would be released if Dr. Afaq did not observe indicia of mental illness justifying continued detention throughout the Labor Day weekend. Judge Moore agreed. A.S. was released the next day when, following continued monitoring, the doctor “found no probable cause to believe that this patient meets the criteria for involuntary commitment.” Id. at 9.

On September 21, 2012, on its own motion and after an independent investigation, the trial court issued a Citation and Order to Appear and Rule to Show Cause (the show-cause order) to Townsend. The show-cause order directed her to appear and show cause why she should not be held in contempt for “willfully hindering and delaying or disobeying lawful process of this court and directly making false and inaccurate statements to the Court, by way of her written and signed documents, pertaining to [A.S.] on, and around, the above dates, which require truthful and accurate statements in a commitment proceeding.” Appellant’s Appendix at 20-21. This was based upon the court’s representation that it

received information ... questioning the allegations and reasons that led to an Emergency Detention Order pertaining to [A.S.]. The Court then spoke with medical professionals at Wellstone Regional Hospital. On the same date the Court was contacted by a Jeffersonville Police Department Officer, tendering information and facts that raise concerns and questions as to the necessity and reasons offered in support of the Emergency Detention Order granted against [A.S.],

Id. at 19. The court also ordered A.S. to appear at the hearing. On October 5, 2012, Townsend filed a motion to dismiss, arguing there was not sufficient evidence to support the show-cause order, that she had immunity pursuant to I.C. § 12-26-2-6 (West, Westlaw current with all 2013 legislation), and that a show-cause order was not an appropriate remedy for A.S. The trial court denied that motion and, following a hearing, found Townsend in indirect civil contempt of court under Ind. Code Ann. § 34-47-3-2 (West, Westlaw current with all 2013 legislation). The court ordered Townsend to pay: (1) A.S.’s uninsured hospital bills resulting from the detention; (2) $500 to Wellstone; and (3) $1000 toward whatever attorney fees A.S. incurred as a result of the contempt hearing. The court also ordered Townsend to write a letter of apology to Wellstone, and to write a letter of apology to A.S.

Finally, we note that Townsend filed her notice of appeal on November 9, 2012, serving notice thereof on A.S. Eight days after filing her notice of appeal, Townsend served all filings in the case upon the State. After receiving these materials, the State filed a Notice of Non-Involvement, informing this court that the State’s interests were not involved and declining to participate. Upon appeal, A.S. contended the State was a necessary party because the matter under appeal was a sua sponte order issued by a trial court in connection with an involuntary commitment proceeding, which represented an action undertaken by the trial court to protect the integrity of the judicial system.

At the time Townsend filed her notice of appeal, A.S. had appeared in this action only because she was ordered to do so by the Clark Circuit Court in conjunction with the contempt hearing. At that point, A.S. had filed no motions in connection with these proceedings. As A.S. notes in her appellate brief, she “has no personal stake in defending the State’s action here, and appears only to argue that her award of attorney fees and expenses be affirmed.” Appellee’s Brief at 15. We concluded that the State’s interests are sufficiently involved such that it should offer argument concerning the trial court’s order. We therefore ordered the State to file an appellate brief responding to Townsend’s Appellant’s Brief. Having received and considered the State’s brief, we proceed to resolve the issues presented in this appeal.

1.

Townsend contends the trial court erred in finding her in indirect civil contempt.

When reviewing a finding of contempt, we accept as true the statement entered by the trial court. This Court will interfere with the judgment only where it clearly appears the acts do not constitute contemptuous acts. Contemptuous acts are those in opposition to a court’s authority, justice, and dignity. Any act related to a current or pending proceeding that tends to deter the court from the performance of its duties may support a finding of contempt.

Bellamy v. State, 952 N.E.2d 263, 266 (Ind.Ct.App.2011) trans. denied, 962 N.E.2d 647 (Ind.2011) (quoting In re Nasser, 644 N.E.2d 93, 95 (Ind.1994)) (internal citations to authority omitted).

Generally, contempt proceedings may be categorized as civil or criminal. Wilson v. State, 988 N.E.2d 1211 (Ind.Ct.App.2013). Criminal contempt is an act that obstructs the administration of justice, is directed against the dignity and authority of the court, or tends to bring the court into disrepute. Id. As a result, a sanction for criminal contempt is punitive in nature because its purpose is to vindicate the authority of the court; it benefits the State rather than the aggrieved party. Id. On the other hand, civil contempt is a violation of a court order, which results in a proceeding for the benefit of the aggrieved party. Id. Accordingly, the penalty in a civil-contempt proceeding must be coercive or remedial in nature. Id. Contempt may also be classified as direct or indirect. Id. Direct contempt involves action in the court’s presence, such that the court has personal knowledge of it. Id. On the other hand, indirect contempt involves action outside the trial court’s personal knowledge that undermines the court’s orders or activities. Id.

The trial court found Townsend to be in indirect civil contempt of court because she submitted false statements in order to obtain a court order authorizing detention of A.S. As the trial court phrased it, “Townsend’s actions hindered and delayed the lawful execution of a Court Order in that she used false statements to obtain such Order.” Appellee’s Appendix at 20. Although we understand the point the trial court was expressing, we believe it mischaracterized the causal relationship between Townsend’s action and the court’s order. The court’s language conveys the idea that an order existed at the time Townsend submitted the perjurious affidavit, and therefore that the affidavit postdated the order. In point of fact, however, the perjurious Application completed by Townsend caused the issuance of the detention warrant — the warrant did not pre-date the perjury. Ind. Code Ann. § 34-47-3-1 (West, Westlaw current with all 2013 legislation) provides:

A person who is guilty of any willful disobedience of any process, or any order lawfully issued:
(1)by any court of record, or by the proper officer of the court;
(2) under the authority of law, or the direction of the court; and
(3) after the process or order has been served upon the person; is guilty of an indirect contempt of the court that issued the process or order.

(Emphasis supplied.) Clearly, this provision contemplates that the order upon which a civil contempt finding is based must predate the contemnor’s offending action. Therefore, we conclude that a finding of civil contempt under I.C. § 34-47-3-1 must be premised upon an action that disobeys or in some other way impedes or is inconsistent with an existing court order or action. See, e.g., In re Guardianship of C.M.W., 755 N.E.2d 644, 650 (Ind.Ct.App.2001) (“Grandfather did not fail to conform to a court order issued for Mother’s benefit. Indeed, the trial court had not issued any orders beyond the granting of the temporary guardianship at the time. Thus, the trial court abused its discretion in finding Grandfather in civil contempt”). The detention warrant did not exist at the time Townsend completed the Application. In the absence of a court order or directive, there can be no disobedience thereof, which is the gravamen of a civil-contempt finding.

As noted previously, direct criminal contempt involves actions within the judge’s personal knowledge that interfere with the business of the court. See In re Guardianship of C.M.W.,755 N.E.2d 644. Any act that “manifests a disrespect and defiance of a court” may justify a finding of direct criminal contempt. Id. at 650. In the present case, the court essentially found that Townsend lied to the court in completing the Application, for the purpose of inducing the court to issue a groundless warrant. It follows from the foregoing discussion that this matter should have been pursued as an action for criminal contempt and tried accordingly. Therefore, the trial court erred in finding Townsend in indirect civil contempt. That judgment must be reversed. Upon remand, the State may decide whether to pursue a charge of direct criminal contempt. Cf. La Grange v. State, 238 Ind. 689, 697, 153 N.E.2d 593, 598 (1958) (the court decided that the appellant’s conviction of direct contempt “should have been treated as an action for indirect contempt and tried accordingly. This was not done in the instant case. Therefore, judgment must be reversed and a new trial ordered”).

2.

Having determined that the finding of indirect civil contempt must be reversed, we must now determine whether the order directing Townsend to pay A.S.’s and Well-stone’s expenses can stand. A.S. contends that the order to pay the expenses she incurred as a result of the false information provided by Townsend on the Application was a legitimate exercise of the court’s power to sanction unseemly behavior.

Our Supreme Court discussed this sanctioning power extensively in Noble Cnty. v. Rogers, 745 N.E.2d 194 (Ind.2001). In that case, Noble County issued a stop-work order to a homeowner who was adding a second story to her home. The county did so on the basis that the homeowner had failed to obtain a building permit. When the homeowner continued construction, the county obtained a temporary restraining order, forbidding the homeowner from further construction. The homeowner appealed the temporary restraining order and the Court of Appeals reversed, holding that the applicable codes amounted to “building codes”, not “housing codes”. As such, building codes did not apply to private homes and could not serve as a basis for the stop-work order or the temporary restraining order. Upon remand, the homeowner asserted that she was entitled to damages, including compensation for the cost of finding another place to live while the temporary restraining order was in place, as well as for damages to the house caused by exposure to the elements during the cessation of construction.

Ultimately, the case made its way to our Supreme Court, which addressed the question of whether the costs the homeowner sought were recoverable under Indiana Trial Rule 65(C), which pertains to temporary restraining orders. The Court took the occasion to discuss the sanctioning power of the courts. It clarified that “[n]o statutory sanction is needed” to exercise a court’s inherent power to enforce compliance with its orders and decrees, to protect the proper functioning of judicial proceedings, and “to sanction litigants for improper or untoward behavior in judicial proceedings.” Id. at 197.

In Allied Prop. & Cas. Ins. Co. v. Good, 919 N.E.2d 144 (Ind.Ct.App.2009), trans. denied, this court addressed the question of whether our courts possess the inherent power to sanction parties and attorneys for violating orders in limine and causing mistrials. In Allied, a husband and wife’s home and its contents were damaged by a fire. The wife submitted a claim to Allied, which had issued a homeowners insurance policy to cover that property. When Allied refused to act on wife’s claim, she filed a complaint in Wabash Circuit Court. Allied asserted an affirmative defense of common-law arson, as well as application fraud, and other contractual defenses based upon the insurance policy’s intentional act and fraud exclusions. The matter ultimately proceeded to a bifurcated trial.

The trial court had issued pretrial orders in limine concerning husband’s prior convictions and previous fires at the home. When one of Allied’s witnesses violated this order, the trial court admonished counsel that any future violations might result in a mistrial and a finding of contempt. Shortly thereafter, another Allied witness mentioned husband’s prior convictions. Following an objection, the trial court excused the jury and asked counsel why he should not be held in contempt. Counsel responded that he had conferred with the witness as the jury was leaving, and the witness confirmed she had been instructed not to bring up that matter but had forgotten. After further discussion and deliberation, the court declared a mistrial and ordered Allied to pay the fees associated with wife’s costs incurred as a result of the now aborted trial. Allied appealed that ruling, arguing that such sanctions were not permitted for the violation of a motion in limine.

We noted that a trial court’s inherent power to issue reasonable sanctions is incident to its interest in “maintaining its dignity, securing obedience to its process and rules, rebuking interference with the conduct of business, and punishing unseemly behavior.” Id. at 152 (quoting City of Gary v. Major, 822 N.E.2d 165, 169 (Ind.2005)). Although the scope of this inherent power has been discussed in the foregoing cases, among many others, its parameters have never been clearly delineated. Nor, it seems, could they be. This power is premised upon and vital to the very independence of the judiciary and thus must be flexible enough to address the great variety of situations that confront our courts. See Noble Cnty. v. Rogers, 745 N.E.2d 194; see also Allied Prop. & Cas. Ins. Co. v. Good, 919 N.E.2d at 153 (“[a]s old as the judiciary itself, the inherent power enables courts to protect their institutional integrity and to guard against abuses of the judicial process with contempt citations, fines, awards of attorneys’ fees, and such other orders and sanctions as they find necessary, including even dismissals and default judgments”) (quoting Shepherd v. Am. Broad. Cos., Inc., 62 F.3d 1469, 1472 (D.C.Cir.1995)). Nevertheless, courts must use restraint in the use of inherent powers, “because of their very potency.” Id. (quoting Shepherd v. Am. Broad. Cos., Inc., 62 F.3d at 1475). We review a trial court’s use of its sanctioning power for an abuse of discretion. Allied Prop. & Cas. Ins. Co. v. Good, 919 N.E.2d 144.

We conclude that the order to reimburse A.S. and Wellstone was not improper. As we have indicated, these powers are properly exercised where they are necessary to protect the court’s integrity and guard against abuses of judicial process. In the present case, the court determined that Townsend filed a document containing what she knew to be false information, which she knew in turn would engage the judicial machinery and trigger the issuance of a groundless detention order. This resulted in a needless expenditure of the court’s time and effort, not only in issuing the order but also in investigating A.S.’s actions and conducting remedial proceedings. All of this was to the detriment of the court’s integrity. Townsend’s actions also had significant detrimental effects upon A.S., financially and otherwise. Appropriately, the sanctions imposed against Townsend were compensatory in nature to reimburse A.S. and her attorney for costs incurred as a direct result of Townsend’s falsified Application. See id.

Finally, we note as an aside that before a trial court may impose sanctions in this manner, the party or attorney that is the subject of the sanctions is entitled to due process, which includes notice and the opportunity to be heard. Id. “These minimal procedural requirements give the party ... an opportunity to argue that its actions were acceptable, present mitigating circumstances, or apologize to the court for its conduct.” Id. at 156. In the present case, notwithstanding that the order issued from a contempt hearing, Townsend had notice of the allegations of misconduct against her and was given an opportunity to be heard on those matters, including presenting evidence on her behalf. Thus, Townsend was afforded adequate due process.

In conclusion, this trial court erred in finding Townsend to be in indirect civil contempt of court because the deceptive actions upon which the ruling was based were undertaken in the absence of a court order and thus cannot be regarded as an act of disobedience. The actions that caused the trial court to issue its order for rule to show cause form the basis for a charge of criminal contempt, not civil contempt. We leave it for the State to decide whether to file such charges upon remand. Finally, we affirm the order directing Townsend to pay A.S.’s uninsured medical expenses and $1000 toward her attorney fees, as well as to pay $500 to Wellstone, because such was a legitimate exercise of the court’s inherent power to impose sanctions.

Judgment affirmed in part, reversed in part, and remanded.

BAKER, J., and VAIDIK, J., concur.

      . We note the Attorney General continues to argue that the State has no dog in this fight. Indeed, the Attorney General argues with notable conviction that this court erred in ordering it to file a brief on behalf of the trial court's order. Although we disagree with the State’s claim that its interests are not implicated and that there is no authority to order the Attorney General to participate in this case, we will leave discussion of that issue for another day. For our purposes, it is enough to note that the State offered a brief argument in support of Townsend's position with respect to the contempt finding. The State opted not to address the second issue, i.e., whether the sanctions should be affirmed.


source: Caselaw Access Project

author: BAILEY, Judge.

license: Public Domain

text:
    Audie WILSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1210-CR-846.
    Court of Appeals of Indiana.
    Oct. 18, 2013.

      Hilary Bowe Ricks, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAILEY, Judge.

Case Summary

Audie Wilson (“Wilson”) was convicted, following a jury trial, of Sexual Misconduct with a Minor, as a Class B felony; Attempted Sexual Misconduct with a Minor, as a Class B felony; and Sexual Misconduct with a Minor, as a Class C felony. He now appeals.

We affirm.

Issues

Wilson raises two issues for our review, which we restate and revise as:

I. Whether the trial court abused its discretion when it admitted evidence of Wilson’s use of aliases; and
II. Whether the trial court committed fundamental error when it gave Jury Instruction 23.

Facts and Procedural History

During the week of June 17, 2011, as C.C. was walking home with a friend, J.D., from summer class at John Marshall High School, the two were approached by Wilson, who was driving a gold-colored van with tinted windows. Wilson asked if the two needed a job; he said his name was “Mike” and gave them his cell phone number.

C.C. got permission from his mother to work and called Wilson, who picked up C.C. and J.D. at the Family Dollar store on Shadeland Avenue and 38th Street. Wilson had a power washer in the van, and they drove around looking for cars to wash. At one point, C.C. and Wilson had a conversation alone. The topic of C.C.’s age came up, and C.C. told Wilson that he was 15 years old and attending John Marshall High School. After they had finished washing cars for the day, Wilson gave C.C. and J.D. $5 or $6 to split between themselves.

On June 17, 2011, J.D. could not join C.C., but C.C. called Wilson nonetheless. Wilson picked up C.C. in front of C.C.’s house in a different car and drove to the gold-colored van, which was parked at a Safeway parking lot near Shadeland Avenue. After they finished washing cars for the day, “[Wilson] discussed about a job [C.C.] could do, a little job,” but he would not tell C.C. what the job was. (Tr. at 53.) As compensation, Wilson offered C.C. shoes, “grills,” and necklaces. (Tr. at 54.) After C.C. agreed, Wilson drove to the interstate, and eventually into a downtown Indianapolis neighborhood with which C.C. was unfamiliar.

Once in the neighborhood, Wilson told C.C. “I want to go in this alley and suck your dick so you can get them things I said you could get.” (Tr. at 58.) C.C. was shocked and terrified; Wilson eventually arrived at a house, and told C.C. to get out of the van. C.C. got out of the van, but was scared, and did not know what to do; he did not feel like he could run away because he was in an unfamiliar neighborhood, and he was afraid Wilson would hurt him.

Wilson and C.C. went inside the house, which had no furnishings, and had blankets covering the windows. They went upstairs; Wilson took his clothes off, and told C.C. to take his clothes off, which he did. Wilson told C.C. “to lay down so he could do the job that he said he wanted to do.” (Tr. at 62.) Wilson touched C.C.’s penis, and gave C.C. oral sex. Wilson had C.C. lay on his stomach and tried to insert his penis into C.C.’s anus, but C.C. resisted, so Wilson rubbed his penis between C.C.’s legs until Wilson ejaculated.

Wilson then wiped “some clear stuff’ from C.C.’s back, and they got dressed, left the house, and got back into the van. (Tr. at 65.) After stopping at a gas station to buy both of them a drink, Wilson dropped C.C. three blocks from his house.

After walking home, C.C. said “I don’t feel right,” and took a shower. (Tr. at 67.) When his mother asked him what was wrong, he told her what had happened, and she called the police.

On August 26, 2011, the State charged Wilson with Count I, Sexual Misconduct with a Minor, as a Class B felony; Count II, Attempted Sexual Misconduct with a Minor, as a Class B felony; and Count III, Sexual Misconduct with a Minor, as a Class C felony.

A jury trial was conducted on September 10 and 11, 2012. During direct examination, Wilson testified that he was known by the nickname “Mike.” (Tr. at 285-86.) During cross-examination, the State asked Wilson about other nicknames he had used. Wilson’s attorney lodged an objection, which the trial court overruled, permitting the State to continue the line of questioning. Wilson thus testified that, while he did not go by the name “Audie Poston,” his mother’s last name was “Po-ston.” (Tr. at 297-98.) He further testi-fled that he went by the name “Mr. CEO” in conjunction with a Facebook account. (Tr. at 298.) He denied ever using the names Nathan Alexander or James Wright. (Tr. at 298.)

Also during the trial, Wilson tendered a proposed jury instruction which stated:

It is a defense to a charge of sexual misconduct with a minor that the Defendant reasonably believed that the child was at least sixteen (16) years of age at the time of the charged conduct.
The burden is upon the State to prove beyond a reasonable doubt that the Defendant did not reasonably believe that [C.C.] was at least sixteen (16) years of age.

(App. at 65-66.)

At the close of the State’s case-in-chief, the following colloquy occurred about Wilson’s proposed jury instruction:

The Court: Okay. And then the defense proposed final was the reasonable belief instruction.
[Wilson]: And I have no objection to the State’s proposed, or I mean, excuse me, the Court’s proposed final in regards to the defense.
The Court: Okay. So we will put that in. “It is a defense that the Defendant reasonably believed that C.C. was 16 years of age or older. If the Defendant proved this by a preponderance of the evidence, you must find the Defendant not guilty of sexual misconduct with a minor.”
[Wilson]: No objection.

(Tr. at 278) (emphasis in original).

After the close of Wilson’s case-in-chief, the parties discussed the applicability of Moon v. State, 823 N.E.2d 710 (Ind.Ct.App.2005), trans. denied, out of the hearing of the jury. (Tr. at 308-24.) The trial court decided to follow the pattern instruction. (Tr. at 322-24.)

Among the Final Instructions given by the trial court to the jury was the following:

Instruction Number 23
It is a defense that the Defendant reasonably believed that [C.C.] was sixteen years of age or older. If the Defendant proved this by a preponderance of the evidence, you must find the [Defendant not guilty of sexual misconduct with a minor.

(App. at 70.)

At the conclusion of the trial, the jury found Wilson guilty as charged of all three counts. On October 5, 2012, the trial court entered judgment of conviction and sentenced Wilson to sixteen years imprisonment with six years suspended for Count I, six years imprisonment for Count II, and four years imprisonment for Count III, with the sentences to be served concurrently.

Wilson now appeals.

Discussion and Decision

Cross-Examination

Wilson contends that the trial court abused its discretion when it ruled as admissible on cross-examination evidence as to his use of nicknames. The decision to admit or exclude evidence at trial is squarely within a trial court’s discretion, and we afford it great deference on appeal. VanPatten v. State, 986 N.E.2d 255, 260 (Ind.2013). We will not reverse such a decision unless it is clearly contrary to the logic and effect of the facts and circumstances of the case or misinterprets the law. Id.

In general, all relevant evidence is admissible. Ind. Evidence Rule 402. “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Evid. R. 401. Relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury[.]” Evid. R. 403. But, otherwise inadmissible evidence may become admissible where the defendant “opens the door” to questioning on that evidence. Jackson v. State, 728 N.E.2d 147, 152 (Ind.2000). The trial court has discretion to permit the admission of even marginally relevant evidence. Thompson v. State, 671 N.E.2d 1165, 1171 (Ind.1996).

Our Supreme Court has stated that the unnecessary, excessive, or unproved use of aliases could create a connotation of criminality sufficient to thwart the fairness of a trial. Edgecomb v. State, 673 N.E.2d 1185, 1194-95 (Ind.1996). The use of a nickname is questionable where there is no apparent reason not to use a defendant’s proper name, and even more so where the nickname itself carries at least the implication of wrongdoing. See McAbee v. State, 770 N.E.2d 802, 805 (Ind.2002).

Here, Wilson testified during direct examination as to his use of the nickname “Mike,” thus opening the door to questioning during cross-examination as to his use of other nicknames. Further, none of the nicknames explored by the State carry any implication of wrongdoing. Therefore, the use of nicknames here does not create a connotation of criminality sufficient to thwart the fairness of a trial. The trial court thus did not abuse its discretion when it admitted evidence on cross-examination as to Wilson’s use of nicknames.

Jury Instruction 23

Wilson contends that the trial court abused its discretion in giving to the jury Final Instruction 23. He argues that he is entitled to a new trial because the instruction improperly shifts to him the burden of proof as to whether he reasonably believed C.C. was at least sixteen years old.

Ordinarily, we review for an abuse of discretion a trial court’s decision to give or refuse to give a party’s tendered jury instruction. Kane v. State, 976 N.E.2d 1228,1231 (Ind.2012). An abuse of discretion occurs when the instructions, taken as a whole, mislead the jury as to the applicable law. Ham v. State, 826 N.E.2d 640, 641 (Ind.2005). We consider: (1) whether the instruction correctly states the law; (2) whether there is evidence in the record to support the giving of the instruction; and (3) whether the substance of the tendered instruction is covered by other instructions that are given. Kane, 976 N.E.2d at 1230-31.

Here, however, Wilson failed to object at trial to Final Instruction 23, and thus he has waived appellate review of that instruction. See Ind.Crim. Rule 8(B); Baker v. State, 948 N.E.2d 1169,1178 (Ind. 2011). Wilson seeks to avoid waiver by claiming fundamental error. The fundamental error doctrine has extremely narrow applicability. Carter v. State, 754 N.E.2d 877, 881 (Ind.2001). A fundamental error is a substantial, blatant violation of basic principles rendering the trial unfair to the defendant, and applies only when the actual or potential harm cannot be denied. Id. The error must be so prejudicial to the defendant’s rights as to have made a fair trial impossible. Id.

Final Instruction 23 provides:

It is a defense that the Defendant reasonably believed that [C.C.] was sixteen years of age or older. If the Defendant proved this by a preponderance of the evidence, you must find the [Defendant not guilty of sexual misconduct with a minor.

(App. at 70.) In a case involving a similar instruction, we concluded that “[t]he defendant’s knowledge of the victim’s age is not an element of the crime[.]” Moon, 823 N.E.2d at 715 (emphasis in original). We thus held that there was no error in assigning to the defendant the burden to prove by a preponderance of the evidence that he reasonably believed that the victim was at least 16 years old. Id. at 716.

Wilson asserts that the Moon Court erred in holding that it was proper to instruct the jury that the burden to prove the “reasonable belief’ defense was wholly on the defendant. He argues that the “reasonable belief’ defense negates a material element of the crime — the defendant’s knowledge of the victim’s age — and thus the defendant’s knowledge of the victim’s age must be proven beyond a reasonable doubt by the State.

We disagree.

“[I]n determining whether a statutory exception is a material element or an affirmative defense, we assess the location of the exception relative to the location of the definition of the principal offense.” Lyles v. State, 970 N.E.2d 140, 143 n. 3 (Ind.2012). “If the exception is closely connected with the clause creating the offense, the exception is a material element of [the] offense” that the State must prove. Id. (citing Russell v. State, 50 Ind. 174, 174 (1875)). But if “the exception is contained in a subsequent clause or statute, the exception is an affirmative defense that must be raised by the defendant.” Id. (citing Russell, 50 Ind. at 174). Furthermore, “[a] defendant bears an initial burden of proof by a preponderance of the evidence on any affirmative defense.” Adkins v. State, 887 N.E.2d 934, 938 (Ind.2008). However, the prosecution bears the ultimate burden of negating beyond a reasonable doubt any defense sufficiently raised by the defendant. Bradford v. State, 675 N.E.2d 296, 300 (Ind.1996); see also Blatchford v. State, 673 N.E.2d 781, 782-83 (Ind.Ct.App.1996).

Here, the statute that creates the offense does not, by its terms, include a knowledge requirement as to the victim’s age. See I.C. § 35-42-4-9(a). Further, the defense set forth by Section 35-42^1-9(c) is contained in a clause subsequent to that which defines the principal offense. Therefore, we conclude the defense does not negate an element of the crime, but instead is an affirmative defense that must be raised by the defendant and for which the defendant must bear the initial burden of proof. We thus agree with the result reached in Moon. And having so concluded, we hold that the giving of Final Instruction 23 was not fundamental error.

Conclusion

The trial court did not abuse its discretion when it permitted the State to cross-examine Wilson regarding his use of other nicknames. Additionally, there was no fundamental error in giving Final Instruction 23.

Affirmed.

KIRSCH, J., and PYLE, J., concur.

      . Ind.Code§ 35-42-4-9(a)(l).

      . I.C. §§ 35-42-4-9(a)(l), 35-41-5-1.

      . I.C. § 35-42-4-9(a).

      .We heard oral argument on this case at The Grand in New Albany, Indiana on September 10, 2013. We thank The Grand and their guests from the Sherman Minton American Inn of Court for their hospitality, and the parties for their able advocacy.

      . At trial, Wilson testified that C.C. had told him he was sixteen years old. (Tr. at 289.) However, C.C. testified that he had told Wilson that he was fifteen years old. (Tr. at 44.)

      . Wilson also asserts that the trial court admitted evidence of his use of aliases in contravention of Indiana Rule of Evidence 404(b), which prohibits admission of character evidence to prove action in conformity therewith. However, his argument is more properly characterized under Indiana Rule of Evidence 403.

      . Wilson also makes the bald assertion that the shifting of the burden violates "his rights to due process under the United States and Indiana Constitutions!.]” (Appellant’s Br. at 19.) However, because he has failed to support this assertion with cogent argument, he has waived this issue. See Ind. Appellate Rule 46(A)(8)(a).

      . I.C. § 35-42-4-9 provides that:
      (a) A person at least eighteen (18) years of age who, with a child at least fourteen (14) years of age but less than sixteen (16) years of age, performs or submits to sexual intercourse or deviate sexual conduct commits sexual misconduct with a minor, a Class C felony. However, the offense is:
      (1) a Class B felony if it is committed by a person at least twenty-one (21) years of age[J
      (c) It is a defense that the accused person reasonably believed that the child was at least sixteen (16) years of age at the time of the conduct. However, this subsection does not apply to an offense described in subsection (a)(2) or (b)(2).

      . Our conclusion does not address the propriety of Final Instruction 23 as given. Beyond the issue addressed, neither party challenged the language of this instruction. An instruction, when given, must correctly state the law. See Ham, 826 N.E.2d at 641; Kane, 976 N.E.2d at 1230-31. We believe the instruction as given was erroneous. However, any error in this instance inured to Wilson’s benefit.


author: BAKER, Judge.

text:
    Floyd WEDDLE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 73A01-1209-CR-452.
    Court of Appeals of Indiana.
    Oct. 18, 2013.

      Russell A. Johnson, Heath Y. Johnson, Suzy St. John, Johnson, Gray & MacAbee, Franklin, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Brian L. Reitz, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION ON REHEARING

BAKER, Judge.

In our original opinion reported as Weddle v. State, 989 N.E.2d 371 (Ind.Ct.App. 2013), we addressed Weddle’s claims regarding the propriety of the police officers’ protective sweep and subsequent search of his residence that led to the discovery of drugs and paraphernalia. We determined that the protective sweep of the residence was proper and the items seized during the subsequent search were properly admitted into evidence. Id. at 377-78. As a result, Weddle was convicted of

Count I — Manufacturing Methamphetamine, a class A felony
Count II — Possession of Methamphetamine, a class B felony
Count III — Possession of Drug Lab Precursors, a class D felony
Count IV — Maintaining a Common Nuisance, a class D felony
Count V — Possession of Marijuana a class A misdemeanor
Count VI — Possession of Marijuana, a class A misdemeanor

Id. at 375. The trial court sentenced Weddle to concurrent sentences on all counts that resulted in an aggregate term of thirty-five years. Id.

We now grant Weddle’s petition for rehearing for the limited purpose of addressing an omitted issue regarding his convictions for both manufacturing methamphetamine and possession of methamphetamine. Weddle maintains that convicting him of both offenses violated the Indiana Constitution’s prohibition against double jeopardy.

In support of his claim, Weddle argues that

The charging information for Counts 1 and 2 does not specify different modes of conduct. App. 24. Additionally, it appears the only evidence to support the possession charge came from Jenna Crawford, who testified the Gatorade cooler tested positive for methamphetamine, and the presence of Ephedrine/Pseudoephedrine. Tr. 646; State’s Exh. 4. Moreover, during closing argument, the prosecutor pointed to the same evidence to support counts 1 and 2. Id. at 834-35.
The prosecutor then moved on to discuss the possession of precursors charge without specifically referencing Count 2. Id. at 836. The court’s instructions do not shed light on separate theories of conduct to support Counts 1 and 2, and neither does the charging information. App. 24.
Therefore, the State advanced the same evidence to support both charges, and there is a reasonable possibility the jury relied on the same evidence for both.

Appellant’s Br. p. 25-26.

We initially observe that determining whether multiple convictions violate the prohibition against double jeopardy is a question of law that this Court reviews de novo. Sloan v. State, 947 N.E.2d 917, 920 (Ind.2011). One way by which punishment for two or more offenses is punishment for the “same offense” in violation of Article 1, Section 14 of the Indiana Constitution is where the actual evidence used to convict one challenged offense also establishes the elements of another challenged offense. Richardson v. State, 717 N.E.2d 32, 49 (Ind.1999).

To show a violation under the actual evidence test, Weddle “must demonstrate a reasonable possibility that the evi-dentiary facts used by the factfinder to establish the essential elements of one offense may also have been used to establish the elements of a second challenged offense.” Id. at 53. The possibility must be reasonable, not speculative or remote. Lee v. State, 892 N.E.2d 1231, 1236 (Ind.2008). Additionally, as long as “each conviction require[s] proof of at least one unique evidentiary fact,” no violation of the actual evidence test occurs. Bald v. State, 766 N.E.2d 1170, 1172 (Ind.2002). As our Supreme Court observed in Spivey v. State:

[U]nder the Richardson actual evidence test, the Indiana Double Jeopardy Clause is not violated when the eviden-tiary facts establishing the essential elements of one offense also establish one or even several, but not all, of the essential elements of a second offense.

761 N.E.2d 831, 833 (Ind.2002); see also Redman v. State, 743 N.E.2d 263, 267 (Ind.2001) (stating that under Richardson it is “necessary to show a possibility that the same evidentiary facts were used to prove the body of essential elements that comprise each” of the two offenses).

In this case Weddle was found in possession of methamphetamine. Tr. p. 643, 645-46; Exs. 2-4. The police also found numerous accoutrements in the residence that are used to manufacture additional methamphetamine. These items included a Gatorade cooler containing a white plastic jar with coffee filters and an off-white substance, several plastic funnels, a one gallon bottle of Crown Toluol, an organic solvent, pseudoephedrine, and anhydrous ammonia. Tr. p. 593, 597, 602, 609, 612; Exs. 2-3,14-32, 35-36, 44, 48-50; Exs. 34-50. An Indiana State Police chemist testified at trial that such items were indicative of a methamphetamine laboratory. Tr. p. 610.

Convictions for manufacturing methamphetamine and possession of methamphetamine may be sustained, specifically with the finished product supporting the possession conviction and the unfinished product supporting the manufacturing conviction. Storey v. State, 875 N.E.2d 243, 248-50 (Ind.Ct.App.2007). It has also been established that the evidence need only show that the manufacturing process has begun to sustain a conviction for manufacturing methamphetamine. Dawson v. State, 786 N.E.2d 742, 747-48 (Ind.Ct.App.2003).

In light of our discussion above, the jury could have reasonably concluded that Wed-dle was in possession of methamphetamine and was in the process of manufacturing an additional amount of the drug. See Iddings v. State, 772 N.E.2d 1006, 1017 (Ind.Ct.App.2002) (finding no double jeopardy violation for convictions of possession of precursors and manufacturing methamphetamine when completed methamphetamine was found in addition to various chemical precursors to manufacture additional methamphetamine). As a result, we reject Weddle’s argument that convicting him of both manufacturing methamphetamine and possession of methamphetamine violated the prohibition against double jeopardy.

In conclusion, we grant Weddle’s petition for rehearing for the purpose of addressing his double jeopardy claim. In all other respects, we reaffirm our original opinion.

MAY, J., and BRADFORD, J., concur.

      . The trial court subsequently vacated the conviction in Count V.


author: BARNES, Judge.

text:
    ALLEN COUNTY PUBLIC LIBRARY, Appellant, v. SHAMBAUGH & SON, L.P., Hamilton Hunter Builders, Inc., W.A. Sheets & Sons, Inc., and MSKTD & Associates, Inc., Appellees.
    No. 02A04-1302-PL-78.
    Court of Appeals of Indiana.
    Oct. 22, 2013.

      Jonathan H. Nusbaum, Beers Mailers Backs & Salin, LLP, Fort Wayne, IN, Attorney for Appellant.
    Brian P. Clifford, Michael L. James, Faegre Baker Daniels, LLP, Fort Wayne, IN, Attorneys for Appellee, Shambaugh & Son. L.P.
    James J. Shea, Timothy W. Degroote, Andrew S. Williams, Hunt Suedhoff Enla-maros, LLP, Fort Wayne, IN, Attorneys for Appellee, Hamilton Hunter Builders, Inc.
   OPINION

BARNES, Judge.

Case Summary

Allen County Public Library (“the Library”) appeals the trial court’s grant of summary judgment in favor of Shambaugh & Son, L.P. (“Shambaugh”), Hamilton Hunter Builders, Inc. (“Hamilton Hunter”), W.A. Sheets & Sons, Inc. (“Sheets”), and MSKTD & Associates, Inc. (“MSKTD”) (collectively “the Defendants”). We reverse and remand.

Issue

The Library raises two issues, which we combine and restate as whether the trial court properly concluded that the Library was contractually prohibited from seeking recovery from the Defendants for pollution remediation costs related to construction work that the Library hired the Defendants to perform.

Facts

In 2004, the Library undertook a capital improvement project to renovate and add to its main library branch building in Fort Wayne. The Library hired Sheets to act as construction project manager and MSKTD to act as project architect. The Library also contracted directly with Shambaugh to perform the project’s mechanical, electrical, and fire protection work, and with Hamilton Hunter to perform the project’s concrete work.

The Library’s contracts with the Defendants were based on a form construction project contract prepared by the American Institute of Architects (“AIA”). The contracts contained various provisions related to insurance and subrogation. Sections 11.3.1, 11.3.1.1, and 11.3.1.2 of the contracts provided:

11.3.1 Unless otherwise provided, the Owner [THE LIBRARY] shall purchase and maintain ... property insurance in the amount of the initial Contract Sum as well as subsequent modifications thereto for the entire Work at the site on a replacement cost basis without voluntary deductibles. Such property insurance shall be maintained, unless otherwise provided in the Contract Documents or otherwise agreed in writing by all persons and entities who are beneficiaries of such insurance, until final payment has been made ... or until no person or entity other than the Owner has an insurable interest in the property required by this Paragraph 11.3 to be covered, whichever is earlier. This insurance shall include interests of the Owner, the Contractor, Subcontractors and Sub-subcontractors in the Work.
11.3.1.1 Property insurance shall be on an “all-risk” policy form and shall insure against the perils of fire and extended coverage and physical loss or damage including, without duplication of coverage, theft, vandalism, malicious mischief, collapse, falsework, temporary buildings and debris removal including demolition occasioned by enforcement of any applicable legal requirements, and shall cover reasonable compensation for Architect’s services and expenses required as a re-suit of such insured loss. Coverage for other perils shall not be required unless otherwise provided in the Contract Documents.
11.3.1.2 If the Owner does not intend to purchase such property insurance required by the Contract and with all of the coverages in the amount described above, the Owner shall so inform the Contractor in writing prior to commencement of the Work. The Contractor may then effect insurance which will protect the interests of the Contractor, Subcontractors and Sub-subcontractors in the Work, and by appropriate Change Order the cost thereof shall be charged to the Owner. If the Contractor is damaged by the failure or neglect of the Owner to purchase or maintain insurance as described above, without so notifying the Contractor, then the Owner shall bear all reasonable costs properly attributable thereto.

App. p. 317. Section 11.3.7 of the contracts further provided:

Waivers of Subrogation. The Owner and Contractor waive all rights against each other and against the Construction Manager, Architect, Owner’s other Contractors and own forces described in Article 6, if any, and the subcontractors, sub-subcontractors, consultants, agents and employees of any of them, for damages caused by fire or other perils to the extent covered by property insurance obtained pursuant to this Paragraph 11.3 or other property insurance applicable to the Work, except such rights as the Owner and Contractor may have to the proceeds of such insurance held by the Owner as fiduciary....

Id. at 317.

As indicated by its capitalization, “the Work” was a term of art specifically defined by the AIA contract and referred to “the construction and services required by the Contract Documents, whether completed or partially completed, and includes all other labor, materials, equipment and services provided or to be provided by the Contractor to fulfill the Contractor’s obligations. The Work may constitute the whole or part of the Project.” Id. at 315. Also, in addition to the Library’s obligation to procure property insurance under the contract, each of the Defendants was obligated to:

purchase ... such insurance as will protect the Contractor from claims set forth below which may arise out of or result from the Contractor’s operations under the Contract and for which the Contractor may be legally liable, whether such operations be by the Contractor or by a Subcontractor or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable:
5. claims for damages, other than to the Work itself, because of injury to or destruction of tangible property, including loss of use resulting therefrom....

Id. at 316.

Before work on the project began, the Library obtained a “Builders Risk Plus” insurance policy from Great American Insurance Group (“Great American”) to specifically cover the library renovation and addition jobsite. Id. at 360. The property covered by the policy included:

building materials and supplies, equipment, machinery and fixtures fences, foundations, excavations, underground pipes, drains, paving, and/or pilings at any construction job-site covered by this Coverage Form ... which is, or intended to become, a permanent part of the structure(s) at the job-site(s) described in the Declarations.

Id. at 369. Excluded from the scope of the policy’s coverage was “water, land (including land on which the property is located), grading or fill....” Id. The policy’s general limit of coverage was $54,920,000. However, the policy also contained a specific “coverage extension” for “Pollutant Clean Up and Removal” to cover expenses to extract pollutants “from land or water at a job-site” resulting in loss to “Covered Property.” This coverage carried its own separate policy limit of $5,000. Id. at 371.

One part of the library renovation and addition project required Shambaugh to permanently install an emergency diesel generator and two diesel fuel storage tanks — one 1,000 gallon tank and one fifty gallon “day” tank — in the library’s basement. Hamilton Hunter poured the concrete floor supporting the generator and tanks, and which also covered copper piping connecting the “day” tank and generator. Part of the concrete pouring process required Hamilton Hunter workers to create a wooden form for the concrete and drive steel stakes into the ground. In December 2007, the Library discovered that a hole in the copper piping had caused approximately 3,000 gallons of diesel fuel to leak into the ground underneath the library. The Library believes that the hole was caused by a Hamilton Hunter employee having driven a steel stake through the pipe. The Library undertook to investigate and clean up the leaked fuel. The Library filed a claim with Great American related to the cleanup. Great American covered the claim and paid the Library $5,000, in accordance with the policy limits for pollution cleanup.

In 2010, the Library sued the Defendants to recover costs associated with the diesel fuel cleanup. The Library asserted in its complaint that it had incurred approximately $490,000 in cleanup-related expenses thus far, with the costs expected to increase. On July 9, 2012, Shambaugh moved for partial summary judgment, which was joined by Hamilton Hunter. The motion asserted that the Library had waived its ability to seek recompense for the diesel fuel cleanup by the ALA contract’s provisions quoted above — in particular Section 11.3.7 — and its obtaining of pollution cleanup insurance coverage from Great American and payment from Great American.

On September 26, 2012, the trial court granted Shambaugh’s and Hamilton Hunter’s motion for partial summary judgment. On January 22, 2013, the trial court entered an order finding that Sheets and MSKTD also were entitled to summary judgment and that it was entering final judgment in favor of all of the Defendants. The Library now appeals.

Analysis

We review a trial court’s summary judgment ruling de novo. Miller v. Dobbs, 991 N.E.2d 562, 564 (Ind.2013). We will affirm a grant of summary judgment “ ‘only if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.’ ” Id. (quoting Overton v. Grillo, 896 N.E.2d 499, 502 (Ind.2008)); see also Ind. Trial Rule 56(C). We must construe all evidence and resolve all doubts in favor of the non-moving party, so as to avoid improperly denying that party’s day in court. Id.

Resolution of this case turns primarily upon interpretation of the parties’ contracts. “The construction of a contract is particularly well-suited for de novo appellate review, because it generally presents questions purely of law.” Holiday Hospitality Franchising, Inc. v. AMCO Ins. Co., 983 N.E.2d 574, 577 (Ind.2013). The primary goal of contract interpretation is “ ‘to determine the intent of the parties at the time the contract was made as disclosed by the language used to express their rights and duties.’ ” Id. at 577-78 (quoting First Fed. Sav. Bank of Ind. v. Key Markets, Inc., 559 N.E.2d 600, 603 (Ind.1990)). Clear, plain, and unambiguous language is conclusive of the parties’ intent, and we will neither construe unambiguous contract language nor add provisions not agreed to by the parties. Vincennes University ex rel. Bd. of Trustees of Vincennes v. Sparks, 988 N.E.2d 1160, 1165 (Ind.Ct.App.2013), trans. denied. “A contract is not ambiguous merely because the parties disagree as to its proper construction; rather, a contract will be found to be ambiguous only if reasonable persons would differ as to the meaning of its terms.” Id. We must attempt to interpret a contract by reading it as a whole and construing its language so as not to render any words, phrases, or terms ineffective or meaningless. Id. When reading all the terms of a contract together, more specific terms control over any inconsistent general statements. Id.

This court has been asked on several prior occasions to analyze the insurance and subrogation provisions of the AIA standard construction contract that are at issue here. In South Tippecanoe School Building Corporation v. Shambaugh & Son, Inc., 182 Ind.App. 350, 395 N.E.2d 320 (1979), we addressed a situation in which a gas explosion and fire damaged a high school that was under construction. The school corporation sued various contractors, alleging negligence among other theories of recovery. After the school corporation’s insurer paid the corporation for the damages under a builder’s risk policy it had issued, it continued a subrogation action against the contractors. On appeal, the insurer claimed that the AIA contract’s waiver of subrogation provision did not bar recovery of amounts covered by the builder’s risk policy.

We disagreed and held that “ ‘an agreement to provide insurance constitutes an agreement to limit recourse of the party acquiring the policy solely to its proceeds even though the loss may be caused by the negligence of the other party to the agreement.’ ” South Tippecanoe, 182 Ind.App. at 361, 395 N.E.2d at 326-27 (quoting Morsches Lumber, Inc. v. Probst, 180 Ind.App. 202, 203, 388 N.E.2d 284, 285 (1979)). We also stated that the insurance provisions of the AIA standard contract “reveal a ‘studied attempt’ by the parties to require construction project risks to be covered by insurance and to ‘allocate among the parties the burden of acquiring such insurance.’ ” Id. at 360, 395 N.E.2d at 326. We further noted that if a construction project owner failed to take out sufficient insurance “ ‘to cover the cost of the undertaking,’ ” the owner — not the contractors— was required to bear the loss caused by such a miscalculation. Id. at 373, 395 N.E.2d at 334 (quoting Morsches, 180 Ind. App. at 206, 388 N.E.2d at 287). There does not appear to have been any question in South Tippecanoe that the full extent of the property damaged by the explosion and fire was the under-construction school building and not any property outside of the construction project.

In Midwestern Indemnity Company v. Systems Builders, Inc., 801 N.E.2d 661 (Ind.Ct.App.2004), trans. denied, after completion of a construction project to add onto a factory, the roof of the new addition collapsed after a snowstorm, causing the loss of the building itself as well as the contents of the building. The factory owner’s insurer paid $1,391,818.90 in total to the owner, of which $44,971.21 was for the building’s contents. The insurer then brought a subrogation action against the subcontractor who designed and built the addition. We held that the waiver of sub-rogation provision of the AIA standard contract — section 11.3.7, as here — applied even though construction had already been completed, and also that the waiver applied to negligence claims against the subcontractor. Midivestem, 801 N.E.2d at 671-72.

Having established that section 11.3.7 applied to the factory owner/insurer’s claims against the subcontractor, we went on to analyze whether the factory owner/insurer was prohibited from seeking recovery from the subcontractor for the loss of the contents of the building. Ultimately, we held there was no such prohibition, observing that “the waiver of subrogation is limited in scope as to what property is covered.” Id. at 672. We explained:

[T]he construction contract provides that the scope of the waiver of subrogation is limited to the work performed under the contract. Specifically, the construction contract requires the Owner to purchase insurance “for the entire Work.” The construction contract defines “Work” to mean “the construction and services required by the Contract Documents, whether completed or partially completed, and includes all other labor, materials, equipment and services provided or to be provided by the Contractor to fulfill the Contractor’s obligations. The Work may constitute the whole or part of the Project.” By definition, “Work” does not include the contents that were placed in the building after it was completed. Further, the waiver of subrogation applies to damage caused by perils insured against by the “property insurance obtained pursuant to this Paragraph 11.3 or other property insurance applicable to the Work....” Accordingly, the scope of the waiver of subrogation is limited to the value of the Work performed under the contract, i.e., the building addition. Because the contents are not part of the Work or completed building addition and because there was no requirement to waive subrogation rights as to property damage to property other than the Work, we hold that the waiver of subrogation does not bar recovery for damage to the contents of the building.

Id. at 672-73 (citations omitted). Thus, we permitted the insurer to attempt to recover from the contractor the $44,971.21 it paid to the property owner for the contents of the building.

After careful consideration, we conclude that this case is in line with Midwestern and cases from other jurisdictions that we cited in support of our holding, including Town of Silverton v. Phoenix Heat Source System, Inc., 948 P.2d 9 (Colo.Ct.App.1997), and S.S.D.W. Co. v. Brisk Waterproofing Co., Inc., 76 N.Y.2d 228, 557 N.Y.S.2d 290, 556 N.E.2d 1097 (1990). To be clear, the Library is alleging that the diesel fuel leak spread beyond the strict confines of the library construction project and seeped into the surrounding land, and that the Library has incurred and will continue to incur significant costs associated with remediating that seepage from the land. The Library was only required by Section 11.3.1 of the AIA contract to cover the cost of “the entire Work at the site on a replacement cost basis,” just as in Midwestern. The definition of “the Work” likewise is identical to the definition in Midwestern — “the construction and services required by the Contract....” App. at 315. This evidences an intent that the Library was under no obligation to procure insurance for damage to property surrounding the jobsite or to property outside of the building project itself. Such damages could well exceed and be completely unrelated to the total replacement cost of “the Work.” As such, the waiver of subrogation provision in Section 11.3.7 does not apply to damaged, contaminated land outside of “the Work” — i.e., the library building addition and renovation.

The trial court stated and the Defendants argue that the leakage of diesel fuel into land surrounding the library merely represented “consequential damages” flowing from a mishap related to “the Work.” However, the same could have been just as easily said with respect to the damaged contents of the factory in Midwestern, which we held were not subject to the waiver of subrogation clause. Nor did the fact that the factory owner in Midwestern had procured insurance coverage for the contents of the building have any impact upon the effect of the waiver of subrogation clause.

We also reject the Defendants’ attempt to argue that, as interpreted by Midwestern, the waiver of subrogation clause would only permit the Library to seek recovery for any loss of the contents of the fuel tanks. The Defendants’ reading of Midwestern is too narrow. Although the contents of a building was the particular loss at issue in that case, the language of the opinion is clear that under Section 11.3.7 of the standard AIA construction contract, “there [is] no requirement to waive subrogation rights as to property damage to property other than the Work....” Midwestern, 801 N.E.2d at 673. Our holding was not limited just to damages to the contents of a building, but any property outside the scope of “the Work.”

We also note that in Town of Silverton, a faulty snow melting system that was installed as part of a new roof construction for a town hall was alleged to have caused a fire that damaged not only the new roof, but other parts of the town hall as well. The Colorado Court of Appeals held, “the scope of the waiver of subrogation [under section 11.3.7 of the AIA form contract] is limited to the value of the work performed under the contract, i.e., the new roof, and is inapplicable to other parts of the town hall damaged in the fire.” Town of Silverton, 948 P.2d at 12. These facts are even more similar to the present case than those in Midwestern, in that they concern damagé to property immediately surrounding “the Work” and not the contents of a building. As we found Town of Silverton persuasive in Midwestern, we do likewise here.

Finally, we find additional guidance in S.S.D.W. Co. In that case, an apartment building owner alleged that a contractor who was hired to do some corrective work caused a fire that caused extensive damage not only to parts of the building covered by the contract but to other areas as well. The Court of Appeals of New York held that under the standard AIA insurance and waiver of subrogation provisions— again, virtually identical to the provisions here (though differently numbered) — the waiver of subrogation provision did not preclude the apartment building owner or its insurer from seeking recovery from the contractor for damages to the building that went beyond the parts of the building covered by “the Work.” S.S.D.W., 557 N.Y.S.2d 290, 556 N.E.2d at 1100-01. Among other parts of its analysis, the court observed that, while the apartment building owner was required by the contract to procure insurance covering “the Work,” the contractor was obligated to procure insurance “covering whatever property damage it may cause other than to the Work itself.” Id., 557 N.Y.S.2d 290, 556 N.E.2d at 1099. The court stated that if it permitted the contractor — and its liability insurer — to escape liability for damages it caused beyond the scope of the “the Work,” it would upset the balancing of insurance responsibilities set forth by the contract, effectively transforming the property owner’s insurer into the insurer of the contractor. The court found such a construction to be inconsistent “with either the natural and obvious meaning” of the contract’s insurance provisions “or with what seems to be the over-all sense of the arrangement” of those provisions. Id., 557 N.Y.S.2d 290, 556 N.E.2d at 1100.

We find this reasoning persuasive as well. As in S.S.D.W., under the standard AIA contract, the Defendants were required under Section 11.1.1 to procure liability insurance that would provide coverage for damage to property “other than to the Work itself-” App. p. 316. In other words, we believe the AIA standard contract generally divides responsibility for providing insurance as follows: the project owner is required to provide insurance covering any mishaps that cause harm to “the Work” itself, while contractors are required to provide insurance covering mishaps that cause harm outside of “the Work.” Moreover, a project owner cannot seek reimbursement from a contractor for any mishaps resulting in harm to the project itself, because it was obligated to purchase insurance for such mishaps. However, a project owner can seek recovery from a contractor (or its insurer) for construction mishaps resulting in harm to non-construction work property, consistent with the contractor’s obligation to purchase liability insurance to cover those kind of mishaps. For this reason, we are unmoved by the Defendants’ argument that they were unaware that the Library had only procured $5,000 worth of insurance coverage for pollution cleanup, suggesting that they might have procured additional pollution cleanup insurance under Section 11.3.1.2 of the AIA contract if they had known the Library had procured such a small amount of coverage. This is because the Defendants already clearly were obligated under Section 11.1.1 to purchase liability insurance for harm to property outside the scope of “the Work” and they could have planned accordingly.

Conclusion

Consistent with our holding in Midwestern, we conclude that the Library is not precluded by Section 11.3.7 of the standard AIA contract from seeking recovery for pollution cleanup costs for property contaminated by the Defendants’ allegedly faulty construction that is outside the scope of “the Work” for which the Defendants were contracted to perform. Namely, the Defendants may be required to reimburse the Library for cleanup costs of the land outside of the library building itself. We reverse the grant of summary judgment to the Defendants and remand for further proceedings consistent with this opinion.

Reversed and remanded.

CRONE, J., and PYLE, J., concur.

      . Hamilton Hunter denies any responsibility for the hole in the pipe, but for purposes of summary judgment is not contesting the Library’s claim that it caused the hole.

      . At the time, this provision was numbered 11.3.6, but it was worded nearly identically to the current provision numbered 11.3.7 in the version of the AIA contract utilized by the parties here.

      . In so holding, we acknowledged the existence of contrary authority holding that the standard AIA waiver of subrogation provision precludes recovery by a property owner against a contractor anytime the property owner is reimbursed by insurance for a loss, regardless of whether the contractor damaged "Work” or "non-Work” property. See Lloyd’s Underwriters v. Craig & Rush, Inc., 26 Cal.App.4th 1194, 32 Cal.Rptr.2d 144 (1994). We declined to follow this authority in Midwestern and we see no reason to second-guess that decision.

      . In resolving this case, we have deemed it unnecessary to address the Library's argument that it was under no obligation to purchase pollution cleanup insurance coverage. Our analysis regarding Section 11.3.7 and the scope of "the Work" would be the same regardless of whether the Library was required to purchase such coverage. We also need not address the Library’s argument regarding a supplementary condition added to the AIA contract regarding indemnification of it by the Defendants for claims related to hazardous materials cleanup, which the Defendants argue is only a "third party" indemnification provision that does not permit direct “first party” recovery by the Library from the Defendants for such cleanup. See Flaherty & Collins. Inc. v. BBR-Vision I, L.P., 990 N.E.2d 958, 967 (Ind.Ct.App.2013).