author: MAY, Judge. BAKER, Judge,

text:
    Jack MESSER, Appellant-Petitioner, v. NEW ALBANY POLICE DEPARTMENT, Appellee-Respondent.
    No. 22A05-1104-MI-179.
    Court of Appeals of Indiana.
    March 16, 2012.

      Bart M. Betteau, Betteau Law Office, LLC, New Albany, IN, Attorney for Appellant.

      Brandon W. Smith, Stanley 0. Faith, Faith Ingle Smith LLC, New Albany, IN, Attorneys for Appellee.
   OPINION

MAY, Judge.

Jack Messer was a New Albany police officer who made a racially-charged remark while talking with other officers after roll call. The comment was leaked to the press. The New Albany Police Merit Commission found Messer’s statement was conduct unbecoming an officer and suspended him. On judicial review, the trial court granted the New Albany Police Department’s motion for summary judgment, finding there was no issue of fact as to whether Messer’s conduct was unbecoming an officer and provided a basis for his discipline.

We affirm.

FACTS AND PROCEDURAL HISTORY

The facts most favorable to Messer, the non-moving party, are that Messer worked for the New Albany Police Department for twenty-seven years. The Department conducts roll call in an area where the public is not permitted, and matters discussed at roll call are not disseminated to the public. After formal roll call it was typical for small groups of officers to engage in private conversations and discuss matters they believed would never become public.

After roll call in January 2010, Messer joined in a conversation with some other officers about public housing. During the conversation Messer said, “the biggest mistake that government made was giving those people civil rights.” (App. at 126.) Other officers challenged Messer’s statement, and Messer explained that he misspoke and did not mean what he said. No officer filed a complaint, and Messer’s supervising officer did not believe a violation had occurred so he took no action.

Several days later the comment was leaked to the public. The Police Department conducted an internal investigation and cleared Messer of wrongdoing, but the Police Merit Commission issued a complaint. It found Messer’s statement caused offense to members of the community, raised suspicions of racism in the Department, and was conduct unbecoming an officer. The Merit Commission suspended Messer for thirty days. Messer petitioned for judicial review, and the trial court granted the Department’s motion for summary judgment.

DISCUSSION AND DECISION

The purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which may be determined as a matter of law. Deuitch v. Fleming, 746 N.E.2d 993, 997 (Ind.Ct.App.2001), reh’g denied, trans. denied. When reviewing a summary judgment, we apply the same standard as the trial court. Id. Summary judgment should be granted only if the designated eviden-tiary material establishes there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. On review, we construe the pleadings, affidavits, and designated materials in a light most favorable to the non-movant. Id. Where there are material disputed facts, or if undisputed facts give rise to conflicting reasonable inferences that affect the outcome, they must be resolved in favor of the non-movant. Id. We give careful scrutiny to assure that the losing party is not improperly prevented from having its day in court. Id.

Messer argues his statement was speech protected by the First Amendment, so the Department should not have subjected him to discipline for making it. The parties agree the First Amendment question before us is governed by the analysis in Pickering v. Board of Education, 391 U.S. 563, 566, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). In Pickering, the United States Supreme Court held the First Amendment protected a public school teacher who wrote a letter to a newspaper in which he criticized the allocation of school funds and the manner by which the school board raised such funds. Pickering did not establish a general constitutional standard applicable to all government-employee-speech cases, but held the government’s interest as employer must be balanced on a case-by-case basis against the individual and societal First Amendment interests. Love v. Rehfus, 946 N.E.2d 1, 9 (Ind.2011), reh’g denied.

Pickering provides a two-step analysis for determining whether the First Amendment protects an employee’s speech. First, the employee must have been speaking as a citizen on a matter of public concern. Id. The Department concedes Messer was speaking as a citizen on a matter of public concern. If the employee satisfies this threshold, a balancing test must be applied to determine if the government was justified in treating the employee differently from any other member of the general public. Id.

Even if an employee speaks as a citizen on a matter of public concern, the government employer can restrict the speech if it can prove the First Amendment interests of the employee and society are outweighed by the employer’s interest in operational effectiveness and efficiency. Id. at 10. Government employees who speak as citizens on matters of public concern are subject only to speech restrictions that are necessary for their employers to operate efficiently and effectively. Id. Therefore, to justify a retaliatory action, the government must show the speech had the potential to disrupt the efficiency and effectiveness of its operations. Id.

Factors to consider in a Pickering balancing include (1) whether the speech would create problems in maintaining discipline or harmony among co-workers; (2) whether the employment relationship is one in which personal loyalty and confidence are necessary; (3) whether the speech impeded the employee’s ability to perform his responsibilities; (4) the time, place and manner of the speech; (5) the context in which the underlying dispute arose; (6) whether the matter was one on which debate was vital to informed decision making; and (7) whether the speaker should be regarded as a member of the general public. Greer v. Amesqua, 212 F.3d 358, 371 (7th Cir.2000), reh’g denied, cert. denied 531 U.S. 1012, 121 S.Ct. 568, 148 L.Ed.2d 487 (2000) (cited in Love, 946 N.E.2d at 13).

The government employer must establish potential disruptiveness or harmful effects of the speech, but is not required to produce actual evidence of disruption. Id. “Substantial weight is given to the government’s reasonable predictions of disruption when it acts as an employer.” Id. at 11. The government employer does not need to wait for the actual disruption of the office and the destruction of working relationships to manifest before taking action. Id. Still, there must be evidence supporting the threat of harm to the government entity — the government’s concerns are not to be taken at face value. Id. Thus, mere allegations of disruption are not sufficient to sustain the government’s burden of showing that the speech threatened the efficiency and effectiveness of its operations. Id.

Applying the Pickering balance “is not an exercise in judicial speculation.” Id. (quoting Gustafson v. Jones, 290 F.3d 895, 909 (7th Cir.2002)). Rather, courts must examine the ordinary or foreseeable effect of the conduct to determine whether it would be reasonably calculated to create division or to have impaired discipline. Id. The government must therefore provide sufficient evidence that the employee’s speech had the potential to disrupt or harm its operations had the retaliatory action not been taken. Id.

If the government carries that burden, the nature and extent of the potential disruption must be weighed against the First Amendment value of the speech. Id. The government’s burden under Pickering varies depending on the nature of the employee’s expression. Id. The stronger the First Amendment value of the speech, the stronger showing of harm the government' must make to justify its action. Id.

In Love, a fire chief, Rehfus, terminated Love, a firefighter, for sending to a small group of citizens a private email supporting a candidate for township trustee. The candidate pledged that, if elected, he would hire a new fire chief. The chief believed Love’s email contained false statements of fact regarding different issues involving the fire department and a public park. Chief Rehfus terminated Love’s employment for “conduct unbecoming a firefighter and failure to be truthful.” 946 N.E.2d at 7. Our Indiana Supreme Court found the email was constitutionally protected speech under the Pickering test.

The Court noted competing interests:

The government ... has broader discretion to regulate the speech of its employees, because there are different interests at stake when it acts as employer than when it acts as sovereign. When the government acts as an employer, its interest “in achieving its goals as effectively and efficiently as possible” is given greater value. Similar to a private employer, the government must exercise some control over its employees’ words and actions to fulfill its public duties. Thus, citizens who become government employees must accept certain limitations on their freedom.
Nevertheless, citizens who work for the government remain citizens and do not completely forfeit them fundamental liberties by virtue of their public employment. Moreover, there is a strong societal interest in allowing public employees to contribute their well-informed ideas and opinions to public debate.

Id. at 9 (citations omitted).

Messer’s statement was more like that addressed in City of Indianapolis v. Heath, 686 N.E.2d 940 (Ind.Ct.App.1997), trans. denied, and it was therefore permissible to discipline him for it. Heath, a police officer and leader of a militia group, was addressing a public meeting while dressed in a police uniform as a representative of the Indianapolis Police Department. He intentionally referred to Indianapolis Mayor Stephen Goldsmith as “Goldstein” while commenting on the May- or’s fiscal policies. The police chief told Heath his comments violated police rules and regulations because he had made antiSemitic remarks about the Mayor, and Heath was demoted and suspended for thirty days.

The Merit Board affirmed. Heath then appealed to the Marion Superior Court. It reversed, finding the statement was protected speech, there was no evidence to support the Merit Board’s finding Heath’s conduct was detrimental to the efficient operation and the general discipline of the police department, the Merit Board did not show a compelling reason for the disciplinary action against Officer Heath when balanced against his free speech guarantees, and the decision was arbitrary and capricious. Id. at 942.

We reversed the trial court and reinstated the Merit Board’s decision:

[W]hile we concede Officer Heath’s right to make the remarks in question, the likely effect of the remarks on the Indianapolis Jewish community were, or should have been, obvious. Heath himself evinced knowledge of the potentially inflammatory nature of the remark by prefacing it with the comment, “I better not say it, ah well.... ” Record at 9. This occurred while Heath was delivering, in his words, “an official talk ... as a police officer,” Merit Board Transcript at 68, in a public place while dressed in his police uniform. In view of the difficult and critical role played by the Indianapolis Police Department in the local community, and the importance of fostering confidence in and trust of that agency among members of the community, we conclude that the interest of the City of Indianapolis, specifically the IPD, outweighed the interests of Officer Heath under the Connick [v. Myers, 461 U.S. 138, 145, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) ] balancing test.

Id. at 945-46 (footnote omitted).

Police departments are entitled to special deference under the Pickering analysis:

Deference to the employer’s judgment regarding the disruptive nature of an employee’s speech is especially important in the context of law enforcement. “[T]here is a particularly urgent need for close teamwork among those involved in the ‘high stakes’ field of law enforcement. Speech that might not interfere with work in an environment less dependent on order, discipline, and esprit de corps could be debilitating to a police force. Such considerations are permissible in weighing constitutional violations.”

Kokkinis v. Ivlcovich, 185 F.3d 840, 845 (7th Cir.1999) (quoting Breuer v. Hart, 909 F.2d 1035,1040 (7th Cir.1990)).

In Kokkinis, unlike in the case before us, the statements did not address a matter of public concern — they simply “expressed the plaintiffs personal opinion as to the Chiefs vindictiveness.” Id. at 844. Kokkinis appeared on a television news report on another officer’s allegation of sex discrimination in the police department. Kokkinis, wearing a ski mask and with his voice electronically modified, said, “Everybody is so afraid of the Chiefs vindictiveness. If you even dare to question any decision he makes, basically your life will be made miserable.” Id. at 842. However, Kokkinis indicated in his interview did not know why the other officer had been treated differently when the Chief ordered her to take an assignment that other officers had been allowed to decline. The Chief thought Kokkinis’ comments were untrue and reflected negatively on the department. He viewed the broadcast as an embarrassment to himself and to the department as a whole and worried that the broadcast would adversely affect morale among the officers by undermining his efforts to build the department’s esteem. Id.

Even if Kokkinis’ speech had addressed a matter of public concern, the court found, his claim could not survive the Pickering analysis. Id. at 845. The speech at issue adversely affected harmony and loyalty among co-workers. Kokkinis’ television appearance damaged his superiors’ and fellow officers’ confidence in him and potentially endangered their working relationships. The statements caused embarrassment to his superiors and co-workers and his relationships with them deteriorated after the broadcast. They believed his appearance cast a negative light on the department and made the department look like a “bunch of clowns” in the eyes of the surrounding communities. Id. at 846. “In sum, Mr. Kokkinis’ superiors and co-workers thought that his television appearance was inappropriate and damaged the department’s collective efforts to portray professionalism.” Id.

Messer’s speech similarly caused disruption to the Department. Messer was on duty and in uniform when he made the statement, and he was a member of the city council. He was not “anonymous or in the privacy of his own home,” (Br. of Ap-pellee at 12), and other officers heard the statement. The value of the speech was low — Messer later characterized it as “stupid” and acknowledged it offended some of the African-American community. (App. at 314.) The statement brought a “potential to disrupt the efficiency and effectiveness of [the Department’s] operations,” Love, 946 N.E.2d at 10, and after it was disseminated in the media, it caused public outcry and damaged the relationship of the department with the African-American community and the general public.

Messer argues the Department did not meet its burden to show its interests in operational efficiency outweighed his First Amendment rights, as he “simply misspoke” in a private place where he had “every expectation the conversation would not go farther.” (Br. of Appellant at 8.) He distinguishes Heath, where the offending comments were made in a public speech. In Dixon, our Indiana Supreme Court said “we think that it is important to note that Dixon’s statements were made off-duty, in a private conversation. ‘A purely private statement on a matter of public concern will rarely, if ever, justify discharge of a public employee.’ ” 541 N.E.2d at 881 (quoting Rankin v. McPher son, 483 U.S. 378, 388 n. 13, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987), reh’g denied).

It does not appear, however, that Dixon’s statements ever became public as did Messer’s. The Dixon court accordingly found the Department of Highways did not show it was actually harmed by Dixon’s statements. “The State has the burden of justifying the discharge on legitimate grounds.... The State cannot base a discharge on possible bad effects or potential harm. To justify its actions, it must make a stronger showing of harm or disruption.” Id. at 881. While “the time, place and manner of the speech” is a factor to be considered in the Pickering analysis, Greer, 212 F.3d at 371, we decline Mes-ser’s invitation to find determinative an employee’s subjective belief the public would never become aware of his statement.

As there is no genuine issue of material fact as to whether Messer’s statement had the potential to disrupt the efficiency and effectiveness of the Department’s operations, Love, 946 N.E.2d at 10, we affirm the trial court.

Affirmed.

NAJAM, J., concurs.

BAKER, J., dissents with separate opinion.

BAKER, Judge,

dissenting.

I respectfully dissent and part ways with the majority’s decision to affirm the trial court’s grant of summary judgment in favor of the New Albany Police Department (Department) as to Messer’s thirty-day suspension.

As the majority acknowledges, the court in Greer v. Amesqua, 212 F.3d 358, 371 (7th Cir.2000), applied the rationale espoused in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and determined that the government must provide sufficient evidence that the employee’s speech had the potential to disrupt or harm its operations had the retaliatory action not been taken. Op. at 57-58.

The cases that the majority cites and discusses upholding disciplinary or termination actions involved statements by the employees that were made public. See City of Indianapolis v. Heath, 686 N.E.2d 940, 945 (Ind.Ct.App.1997) (holding that discipline was warranted when the police officer, and leader of a militia group, was addressing the public while dressed in a police uniform as a representative of the Indianapolis Police Department and referred to Mayor Goldsmith as “Goldstein” while commenting on the mayor’s fiscal policies).

In light of the circumstances here, I cannot agree that the Department met its burden of establishing that its interests in operational efficiency outweighed Officer Messer’s First Amendment rights. Moreover, I agree with Officer Messer’s contention that he had every expectation that his remarks would go no further. Unlike the circumstances in Heath, Officer Messer made these comments during a private conversation with the expectation that his comments would not be made public. Indeed, the fact that the comment became public was because it was leaked to the public. Officer Messer was speaking as a citizen about issues of public concern and when questioned by other officers regarding the civil rights of blacks, Officer Mes-ser consistently maintained that he “misspoke,” admitted that his statement was “stupid,” and did not mean what he actually said. Tr. p. 165.

In sum, I do not believe that the Department successfully established that Officer Messer’s comments had the potential to disrupt the efficiency and effectiveness of its operations. As a result, it is my view that Officer Messer’s comment was protected by the First Amendment, and the trial court erred in granting the Department’s motion for summary judgment.

      . We heard oral argument February 8, 2012, at Silver Creek High School in Sellersburg. We thank the School for its hospitality and commend counsel on the quality of their advocacy.

      . The Department includes in its statement of facts a number of citations to evidence favorable to the Department, and does not acknowledge much of the evidence favorable to Messer. For example, it cites testimony that things said at roll call were expected to be spread and repeated by officers, and Messer would not have reason to think his comment would remain private. On review of a summary judgment, we construe the pleadings, affidavits, and designated materials in a light most favorable to the nonmovant, here, Mes-ser. Where there are disputed material facts, or if undisputed facts give rise to conflicting reasonable inferences that affect the outcome, we resolve them in favor of the non-movant. Deuitch v. Fleming, 746 N.E.2d 993, 997 (Ind.Ct.App.2001), reh'g denied, trans. denied.

      . Much of Messer’s argument on appeal is based on the premise his remark was protected by the First Amendment, which premise the Department does not explicitly challenge. However, the Department argues Messer did not preserve the First Amendment issue for the trial court's review because he did not raise it before the Merit Commission.
      Claims of a constitutional nature need not necessarily be presented to an agency as a precondition to judicial review. Ind. Dep't. of Highways v. Dixon, 541 N.E.2d 877, 882 (Ind.1989). We decline to find waiver and choose to decide this appeal on the merits.

      . The Connick test is (1) the employee must be speaking on a matter of public concern about which free and open debate is vital to the decision making of the community; (2) the reviewing court must balance the interests of the employee, as a citizen, in commenting on matters of public concern and the State’s interest, as an employer, in running an efficient operation; and (3) the employee’s protected conduct must be a motivating factor in the State's decision to discipline the employee. 461 U.S. at 146 n. 4, 103 S.Ct. 1684.


source: Caselaw Access Project

author: BRADFORD, Judge.

license: Public Domain

text:
    INDIANA FARM BUREAU INSURANCE COMPANY as subrogee of Joseph Koors d/b/a Koors Amoco, Appellant-Plaintiff, v. HARLEYSVILLE INSURANCE COMPANY, Appellee-Defendant.
    No. 43A04-1109-PL-507.
    Court of Appeals of Indiana.
    March 16, 2012.

      Sean J. Quinn, Michelle L. Shirk, New-by, Lewis, Kaminski & Jones, LLP, La Porte, IN, Attorneys for Appellant.
    Ginny L. Peterson, Kightlinger & Gray, LLP, Indianapolis, IN, Attorney for Ap-pellee.
   OPINION

BRADFORD, Judge.

Appellant-Plaintiff Indiana Farm Bureau Insurance Company (“Farm Bureau”), as subrogee of Joseph Koors d/b/a Koors Amoco, appeals from the trial court’s denial of its summary judgment motion against Appellee-Defendant Har-leysville Insurance Company (“Harleys-ville”) and the trial court’s grant of Har-leysville’s summary judgment motion. Farm Bureau contends that the trial court erred in concluding that Harleysville was not obligated to defend and indemnify Koors in proceedings related to the remediation of contamination at its place of business. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

Koors Amoco is a service station owned and operated by Koors in Warsaw. (Appellant’s App. 47). On approximately April 2, 1998, Koors notified the Indiana Department of Environmental Management (“IDEM”) of his desire to remove an underground storage tank (“UST”) system at Koors Amoco. In June of 1998, a site assessment was conducted by Heartland Environmental Associates, and the resulting report was dated June 11, 1998, and issued to IDEM on June 15. The report detailed that testing of soil samples taken from Koors Amoco “indicate[d] that some release to the subsurface has occurred from the UST system, and water samples from the excavation pit contained BTEX[] compounds in excess of IDEM action levels.” Appellant’s App. pp. 48-49.

On August 30, 2004, IDEM contacted Koors and advised him that an Initial Site Characterization report was required to be completed within forty-five days. Heartland conducted a Limited Site Investigation at Koors Amoco and submitted a report to IDEM on December 22, 2004. In a letter dated August 28, 2005, IDEM requested further site investigation and testing to determine the extent of contamination. Neither of the letters indicated that actionable contamination existed at Koors Amoco or that remediation was required at that time.

On December 18, 2008, Koors tendered a demand to Farm Bureau and Harleys-ville for defense and indemnification related to IDEM’s actions, environmental testing, and remediation. Farm Bureau had insured Koors Amoco in 1998 when the initial soil testing was performed by Heartland. On June 8, 1998, Koors had submitted an insurance application with Harleysville, and coverage by Harleysville began on August 3, 1998. In the end, Harleysville issued six Commercial Property and Garage policies to Koors between August 3, 1998, and August 3, 2004. All six polices contained the following provisions:

SECTION II — LIABILITY COVERAGE
A. Coverage
“GARAGE OPERATIONS” — OTHER THAN COVERED “AUTOS” We will pay all sums an “insured” legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies caused by an “accident” and resulting from “garage operations” other than the ownership, maintenance or use of covered “autos.”
We have the right and duty to defend any “insured” against a “suit” asking for these damages. However, we have no duty to defend any “insured” against a “suit” seeking damages for “bodily injury” or “property damage” to which this insurance does not apply. We may investigate and settle any claim or “suit” as we consider appropriate. Our duty to defend or settle ends when the applicable Liability Coverage Limit of Insurance— “Garage Operations” — has been exhausted by payment of judgments or settlements.

Appellant’s App. pp. 275, 378, 490, 601, 719, 841.

The polices all contained the following language regarding Koors’s duty to provide notice of a loss:

2. Duties in the event of Accident, Claim, Suit, or Loss
We have no duty to provide coverage under this policy unless there has been full compliance with the following duties:
a. In the event of “accident”, claim, “suit” or “loss”, you must give us or our authorized representative prompt notice of the accident or “loss”.

Appellant’s App. pp. 284, 387, 499, 610, 851.

The policies in effect from August 3, 2002, through August 3, 2004, contained language concerning known losses:

A. COVERAGES
b.This insurance applies to “bodily injury” and “property damage” only if:
(3) Prior to the policy period, no “insured” listed under Who Is An Insured and no “employee” authorized by you to give or receive notice of an “accident” or claim, knew that the “bodily injury” or “property damage” had occurred, in whole or in part. If such a listed “insured” or authorized “employee” knew, pri- or to the policy period, that the “bodily injury” or “property damage” occurred, then any continuation, change or resumption of such “bodily injury” or “property damage” during or after the policy period will be deemed to have been known prior to the policy period.
c. “Bodily injury” or “property damage” which occurs during the policy period and was not, prior to the policy period, known to have occurred by any “insured” listed under Who Is An Insured or any “employee” authorized by you to give or receive notice of an “accident” or claim, includes any continuation, change of resumption of that “bodily injury” or “property damage” after the end of the policy period.
d. “Bodily injury” or “property, damage” will be deemed to have been known to have occurred at the earliest time when any “insured” listed under Who Is An Insured or any “employee” authorized by you to give or receive notice of an “accident” or claim:
(1) Reports all, or any part, of the “bodily injury” or “property damage” to us or any other insurer;
(2) Receives a written or verbal demand or claim for damages because of the “bodily injury” or “property damage”; or
(3) Becomes aware by any other means that “bodily injury” or “property damage” has occurred or has begun to occur.

Appellant’s App. pp. 719-20, 841-42.

Finally, the Harleysville policies with Koors all contained the following language concerning pollution:

B. Exclusions
This insurance does not apply to any of the following:
8. Pollution Exclusion Applicable to “Garage Operations” — Other Than Covered “Autos”
“Bodily injury”, “property damage” or loss, cost or expense arising out of the actual, alleged or threatened discharge, dispersal, seepage, release or escape of “pollutants”: a. At or from any premises, site or location that is or was at any time owned or occupied by, or rented or loaned to, any “insured”;
c. At or from any premises, site or location on which any “insured” or any contractors or subcontractors working directly or indirectly on any “insured’s” behalf are performing operations:
(1) To test for, monitor, clean up, remove, contain, detoxify or neutralize, or in any way respond to, or assess the effects of the “pollutants”; or
(2) If the “pollutants” are brought on or to the premises, site or location in connection with such operations by such “insured”, contractor or subeontractor[.]
Loss, cost or expense means those resulting from any:
(1) Request, demand or order that the “insured” or others test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to, or assess the effects of “pollutants”;
(2) Claim or suit by or on behalf of a governmental authority for damages because of testing for, monitoring, cleaning up, removing, containing, treating, detoxifying or neutralizing, or in any way responding to or assessing the effects of “pollutants”.
“Pollutants” means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned, or reclaimed.

Appellant’s App. pp. 277-78, 288, 380-81, 391, 492-93, 503, 603-04, 614, 721-23, 736, 843^5, 855.

On April 7, 2009, Harleysville notified Koors that it did not believe that it had a duty to defend and indemnify him on the bases that (1) any loss related to the IDEM action prior to the initiation of coverage on August 3,1998, (2) Koors breached the policy by failing to notify Harleys-ville as soon as practicable that a loss had occurred, and (3) the pollution exclusion of some, if not all, of the policies may bar coverage. On November 9, 2009, Farm Bureau filed a complaint for contribution against Harleysville seeking to recover a pro rata share of expenses related to the IDEM action. Both parties filed summary judgment motions. On August 24, 2011, the trial court granted Harleysville’s summary judgment motion and denied Farm Bureau’s.

DISCUSSION AND DECISION

When reviewing the grant or denial of a summary judgment motion, we apply the same standard as the trial court. Merchs. Nat’l Bank v. Simrell’s Sports Bar & Grill, Inc., 741 N.E.2d 383, 386 (Ind.Ct.App.2000). Summary judgment is appropriate only where the evidence shows there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Id.; Ind. Trial Rule 56(C). All facts and reasonable inferences drawn from those facts are construed in favor of the nonmoving party. Id. To prevail on a motion for summary judgment, a party must demonstrate that the undisputed material facts negate at least one element of the other party’s claim. Id. Once the moving party has met this burden with a prima facie showing, the burden shifts to the nonmoving party to establish that a genuine issue does in fact exist. Id. The party appealing the summary judgment bears the burden of persuading us that the trial court erred. Id.

I. The Known Loss Doctrine

Farm Bureau contends that the “known loss” doctrine does not excuse Harleysville from its obligation to defend and indemnify Koors. We first recognized the known loss doctrine in General Housewares Corp. v. National Surety Corp., 741 N.E.2d 408 (Ind.Ct.App.2000):

The “known loss” doctrine is a common law concept deriving from the fundamental requirement in insurance law that the loss be fortuitous. Pittston Co., Ultramar America Ltd. v. Allianz Ins. Co. (1997) 3d Cir., 124 F.3d 508, 516. Simply put, the known loss doctrine states that one may not obtain insurance for a loss that has already taken place. Id. Describing the known loss doctrine, commentators have noted that “losses which exist at the time of the insuring agreement, or which are so probable or imminent that there is insufficient ‘risk’ being transferred between the insured and insurer, are not proper subjects of insurance.” 7 LEE R. RUSS AND THOMAS F. SEGALLA, COUCH ON INSURANCE, § 102:8 at 20 (3d ed. 1997).
This principle has been referred to by various names, including “loss in progress,” “known risk,” and “known loss.” RUSS AND SEGALLA, supra, § 102:8 at 20. “Loss in progress” refers to the notion that an insurer should not be liable for a loss which was in progress before the insurance took effect. Id. Although the term “known loss” has been limited to those situations where a loss has actually occurred, see, e.g., Domtar, Inc. v. Niagara Fire Ins. Co. (1997) Minn., 563 N.W.2d 724, most courts have defined the doctrine to also include losses which are “substantially certain” to occur or which were a “substantial probability.” RUSS AND SE-GALLA, supra, § 102:8 at 21. Despite some differences between the various labels used, we agree with the Illinois Supreme Court, which noted that the term “ ‘known loss’ most adequately describes the doctrine.” Outboard Marine Corp. v. Liberty Mut. Ins. Co. (1992), 154 Ill.2d 90, 180 Ill.Dec. 691, 607 N.E.2d 1204, 1209-10. Therefore, we will use the term “known loss” to encompass the fortuity principle.
[W]e hold that if an insured has actual knowledge that a loss has occurred, is occurring, or is substantially certain to occur on or before the effective date of the policy, the known loss doctrine will bar coverage. This is not to say, however, that parties may not explicitly agree to cover existing losses. Indeed, the known loss doctrine is inapplicable “if the insurer also knew of the circumstances on which it bases the defense.” RUSS AND SEGALLA, supra, § 102:8 at 23.

Id. at 413-14. “The very term ‘known loss’ indicates that actual knowledge upon behalf of the insured is required before the doctrine will apply. This is ordinarily a question of fact.” (Id. at 413-14) (footnote omitted).

Farm Bureau contends that there remains a genuine issue of material fact regarding Koors’s actual knowledge of a loss prior to August 3, 1998, while Harleysville contends that the record supports the unavoidable inference that Koors had actual knowledge of the loss. On this point, we agree with Farm Bureau. While there is designated evidence that Heartland notified IDEM on Koors’s behalf of actionable contamination at Koors Amoco, there is no evidence that it notified Koors of the condition or that he learned of it some other way. Cf. Crawfordsville Square, LLC. v. Monroe Guar. Ins. Co., 906 N.E.2d 934, 936 (Ind.Ct.App.2009) (concluding that landowner had actual knowledge of loss based on letter indicating that “[c]lean up [sic] of both petroleum and cleaning agent contamination [on the parcel] must happen. The law requires it.”), trans. denied. Harleysville is not entitled to summary judgment on the basis that the known loss doctrine precludes coverage.

II. Failure to Give Timely Notice of Loss to Harleysville

Farm Bureau also contends that a genuine issue of material fact remains as to whether Harleysville received reasonable notice of the loss.

We have held that the notice requirement is “material, and of the essence of the contract.” London Guarantee & Accident Co. v. Siwy, 35 Ind.App. 340, 66 N.E. 481, 482 (1903). The duty to notify an insurance company of potential liability is a condition precedent to the company’s liability to its insured. Shelter Mut. Ins. Co. v. Barron, 615 N.E.2d 503, 507 (Ind.Ct.App.1993), trans. denied. When the facts of the case are not in dispute, what constitutes reasonable notice is a question of law for the court to decide. Id. Unlike other policy provisions requiring the cooperation of the insured, noncompliance with notice of claim provisions resulting in an unreasonable delay triggers a presumption of prejudice to the insurer’s ability to prepare an adequate defense. Miller v. Dilts, 463 N.E.2d 257, 265 (Ind.1984). The Indiana Supreme Court stated in Miller that:
The requirement of prompt notice gives the insurer an opportunity to make a timely and adequate investigation of all the circumstances surrounding the accident or loss. This adequate investigation is often frustrated by a delayed notice.

Askren Hub States Pest Control Services, Inc. v. Zurich Ins. Co., 721 N.E.2d 270, 277-78 (Ind.Ct.App.1999).

A. Unreasonably Late Notice

As previously mentioned, all of Koors’s policies with Harleysville provided that “[i]n the event of ‘accident’, claim, ‘suit’ or ‘loss’, you must give us or our authorized representative prompt notice of the accident or ‘loss’.” Appellant’s App. pp. 284, 387, 499, 610, 851. Farm Bureau argues that Koors did not have knowledge of the loss until December 2008, or, at the very least, that the question of when Koors had actual knowledge is one of fact for the jury. Harleysville argues that the 1998 Heartland report or the IDEM letters to Koors dated August 30, 2004, and August 23, 2005, provided Koors with actual knowledge of the loss such that his December 2008 notice to Harleysville was unreasonably late as a matter of law.

Under the facts of this case, we agree with Koors’s argument that the question of actual knowledge is one for the jury. As previously mentioned, there is no designated evidence that Heartland notified Koors that his property contained actionable contamination in 1998 or that he gained that knowledge from another source. Moreover, neither of the IDEM letters from 2004 and 2005 contains any indication that Koors Amoco’s contamination is actionable or that remediation will be required, providing only that Koors provide IDEM with required site assessments. We cannot conclude that this designated evidence inexorably leads to the conclusion that Koors had knowledge of the loss before December of 2008. Because the basic fact of Koors’s knowledge of the loss is in dispute, the question of unreasonable delay also becomes one for the jury. See Askren, 721 N.E.2d at 278.

B. Prejudice

Farm Bureau contends that the designated evidence establishes that, even if Koors’s delay in giving notice was unreasonable, Harleysville was not prejudiced by it. Harleysville counters by noting that Farm Bureau has not designated any evidence to rebut the presumption that it was prejudiced, if, in fact, Koors’s delay was unreasonable.

Prejudice to the insurance company’s ability to prepare an adequate defense can therefore be presumed by an unreasonable delay in notifying the company about the accident or about the filing of the lawsuit. This is not in conflict with the public policy theory that the court should seek to protect the innocent third parties from attempts by insurance companies to deny liability for some insignificant failure to notify. The injured party can establish some evidence that prejudice did not occur in the particular situation. Once such evidence is introduced, the question becomes one for the trier of fact to determine whether any prejudice actually existed. The insurance carrier in turn can present evidence in support of its claim of prejudice. Thus, both parties are able to put forth their respective positions in the legal arena.

Miller, 463 N.E.2d at 265-66.

Because we have already concluded that the question of unreasonably late notice must go to a jury, so too must the question of prejudice. If the jury finds that Koors’s notice was unreasonably late, prejudice will be presumed. Farm Bureau will then have the opportunity to rebut that presumption at trial. Harleysville is not entitled to summary judgment on the question of unreasonably late notice.

III. Pollution Exclusion

Finally, Farm Bureau contends that the pollution exclusion in Harleys-ville’s policies with Koors does not excuse Harleysville from its duty to defend and indemnify, while Harleysville contends that it does. This requires us to determine if gasoline can be considered a “pollutant” under Harleysville’s policies. As the Indiana Supreme Court has noted,

The interpretation of insurance policies is not a new task for this Court. See, e.g., Glens Falls Ins. Co. v. Michael, 167 Ind. 659, 74 N.E. 964 (1905). Where there is ambiguity, insurance policies are to be construed strictly against the insurer. Fidelity and Deposit Co. of Maryland v. Pettis Dry Goods Co., 207 Ind. 38, 190 N.E. 63 (1934). This is particularly true where a policy excludes coverage. See Asbury v. Indiana Union Mut. Ins. Co., 441 N.E.2d 232, 242 (Ind.Ct.App.1982). This strict construal against the insurer is driven by the fact that the insurer drafts the policy and foists its terms upon the customer. “The insurance companies write the policies; we buy their forms or we do not buy insurance.” American Economy Ins. Co. v. Liggett, 426 N.E.2d 136, 142 (Ind.Ct.App.1981).

Am. States Ins. Co. v. Kiger, 662 N.E.2d 945, 947 (Ind.1996), reh’g denied.

In Kiger, the Indiana Supreme Court interpreted a pollution exclusion with language literally identical to that in Harleys-ville’s policies and concluded that gasoline was not a “pollutant” under the policy. Id. at 949. The Kiger court noted that “since the term ‘pollutant’ does not obviously include gasoline and, accordingly, is ambiguous, we once again must construe the language against the insurer who drafted it” and concluded that “[i]f a garage policy is intended to exclude coverage for damage caused by the leakage of gasoline, the language of the contract must be explicit.” Id. at 949. Because the language of the pollution exclusion at issue here is identical to that at issue in Kiger, so is our holding. Harleysville is not entitled to summary judgment on the basis that the pollution exclusion applies to gasoline leaks.

The judgment of the trial court is reversed and we remand for further proceedings not inconsistent with this opinion.

KIRSCH, J., and BARNES, J., concur.

      . "BTEX is the term used for benzene, toluene, ethylbenzene, and xylene-volatile aromatic compounds typically found in petroleum product, such as gasoline and diesel fuel.” U.S. Geological Survey, http://toxics.usgs.gov/ definitions/btex.html. (last visited Feb. 29, 2012) (citation omitted).

      . Although the trial court’s order is unclear as to its reasons for granting Harleysville summary judgment, its comments at the hearing indicate that it was likely due to its conclusion that Koors provided Harleysville with late notice of the loss.

      . It may be that such requests for assessments invariably (or almost invariably) lead to site remediation, but, if they do, there is no designated evidence to that effect.


author: ROBB, Chief Judge.

text:
    Kelly Scott THOMAS, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
    No. 20A05-1111-PC-651.
    Court of Appeals of Indiana.
    March 19, 2012.
    Ordered Published April 12, 2012.

      Kelly Scott Thomas, Pendleton, IN, Appellant Pro Se.
    Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

ROBB, Chief Judge.

Case Summary and Issues

Kelly Scott Thomas was convicted of felony murder and sentenced to sixty-five years in prison. After this court affirmed Thomas’s convictions, he filed a petition for post-conviction relief, but thereafter the post-conviction court granted his motion to withdraw his petition without prejudice. Thomas filed a second petition for post-conviction relief. He then filed a motion for an indefinite continuance, which the post-conviction court denied, and a motion to withdraw his petition, which the post-conviction court also denied. The post-conviction court denied his petition for post-conviction relief. Thomas, pro se, raises four issues for our review, which we consolidate and restate as: (1) whether the post-conviction court abused its discretion in denying Thomas’s second motion to withdraw his petition; (2) whether the post-conviction court erred in concluding Thomas received effective assistance of trial and/or appellate counsel; and (3) whether Thomas’s due process rights were violated by the State’s nondisclosure of an alleged agreement with one of its witnesses, Stacey Orue.

Concluding the post-conviction court did not abuse its discretion by denying Thomas’s motion to withdraw his petition, Thomas has failed to meet his burden of establishing that either his trial or appellate counsel provided ineffective assistance, and Thomas’s due process rights were not violated because the evidence does not confirm a leniency agreement was made, we affirm the post-conviction court’s denial of Thomas’s motion to withdraw his petition and its denial of his petition for post-conviction relief.

Facts and Procedural History

In 2003, Gwendolyn Hunt was shot and killed in her home, and the State charged Thomas, Orue, and Kevin Taylor with felony murder. The three defendants were initially tried together, and a jury found all three guilty of felony murder. The trial court sentenced Thomas to sixty-five years in prison. Thomas appealed his conviction, and we reversed due to an instructional error and remanded to the trial court for a new trial. Brief of Appellee at 2 (citing Thomas v. State, No. 20A03-0503-CR-138, 844 N.E.2d 229 (Ind.Ct.App., Feb.3, 2006)). After a retrial of Thomas alone in 2007, the jury found Thomas guilty of felony murder again, and the trial court sentenced him to sixty-five years in prison. We affirmed Thomas’s conviction. Thomas v. State, No. 20A05-0709-CR-546, 887 N.E.2d 1031 at *3 (Ind.Ct.App., May 30, 2008), trans. denied.

In 2008, Thomas filed a petition for post-conviction relief. In April 2009, the post-conviction court granted Thomas’s motion for a continuance, and in October 2009, the post-conviction court granted Thomas’s motion to withdraw his post-conviction petition without prejudice. In June 2010, Thomas filed a second petition for post-conviction relief. In February 2011, Thomas filed a motion for an indefinite continuance. Following a hearing, the post-conviction court denied Thomas’s motion and reset the post-conviction hearing for October 2011. Thomas’s public defender withdrew in May 2011, and in June 2011, Thomas filed a motion to withdraw his post-conviction petition without prejudice. The State filed an objection to Thomas’s motion to withdraw. At a hearing on October 13, 2011, the post-conviction court denied Thomas’s motion and conducted the post-conviction hearing. The post-conviction court subsequently issued findings of fact and conclusions of law denying Thomas’s petition, including in pertinent part:

19. In his Petition for Post Conviction Relief, Petitioner alleged ineffective assistance of trial counsel for failure to impeach State’s witness, Stacy [sic] Orue; and, ineffective assistance of appellate counsel for failure to raise sufficiency of the evidence as an issue on direct appeal. Further review of the current Petition filed on June 29, 2010, reveals that said Petition is a duplicate copy of the Petition filed on December 18, 2008, which Petitioner, by counsel, moved to withdraw on October 13, 2009. No new meritorious grounds for relief were stated. Nonetheless, the court will address Petitioner’s claims.
22. On direct appeal, Petitioner raised the issue of whether he was denied the right to confrontation with respect to the testimony of Stacy [sic] Orue. The Indiana Court of Appeals found that the trial court gave Petitioner the opportunity to depose Ms. Orue and he did not avail himself of that opportunity. Moreover, Petitioner was able to challenge the credibility of Orue’s testimony in his cross-examination, and the record establishes that counsel for Petitioner did so. Additionally, the Court found that while Orue’s testimony was detrimental to Petitioner’s case, it was merely cumulative of a “wealth of additional evidence presented by the State.” In sum, in affirming his conviction, the Court of Appeals held that there was “plentiful evidence” against Petitioner....
23. As demonstrated above, the issues about which Petitioner complains in his Petition for Post Conviction Relief have been determined by the appellate court and are, therefore, unavailable for review in this post conviction proceeding. Even if raised in the context of an ineffective assistance of counsel claim, as Petitioner has done in the instant case, it has been determined that trial counsel did cross examine Ms. Orue. Accordingly, Petitioner’s ineffective assistance of trial counsel claim fails. Additionally, appellate counsel cannot be deemed ineffective for failing to raise a sufficiency of the evidence claim when the appellate court has already held that the evidence in this case against Petitioner was more than sufficient.... For this reason, Petitioner has not shown a reasonable probability that the outcome of his appeal would have been different if appellate counsel had raised any other issue. Accordingly, Petitioner did not receive ineffective assistance of appellate counsel.

Appellant’s Appendix at 31-33.

Thomas now appeals.

Discussion and Decision

I. Thomas’s Motion to Withdraw His Petition for Post-Conviction Relief

Thomas argues the post-conviction court abused its discretion by denying his second motion to withdraw his petition for post-conviction relief. Indiana Posl^Con-viction Rule l(4)(c) gives post-conviction courts the discretion to grant a petitioner’s motion to withdraw his petition. Specifically, it provides “[a]t any time prior to entry of judgment the court may grant leave to withdraw the petition.” Thus, we will overturn a post-conviction court’s grant or denial of a motion to withdraw a petition “only when the court reached an erroneous conclusion and judgment, one clearly against the logic and effect of the facts and circumstances before the court or the reasonable, probable and actual deductions to be drawn therefrom.” Tapia v. State, 753 N.E.2d 581, 585 (Ind.2001) (quotation and citation omitted).

Thomas argues that in order for a post-conviction court to deny a motion to withdraw a petition for post-conviction relief, there must be a showing that withdrawal would substantially prejudice the State, citing Tucker v. State, 786 N.E.2d 710 (Ind.2003), for support. There, Tucker’s motion to withdraw his petition for post-conviction relief was denied, and Tucker argued to our supreme court that he had a right to withdraw his petition without prejudice absent a showing of substantial prejudice to the State. Id. at 711. In discussing the petitioner’s proposed standard for a post-conviction court’s review of a motion to withdraw a petition, our supreme court discussed its prior case, Tapia, noting its statement that “[w]hile prejudice to the non-moving party is one indicia of an abuse of discretion, it is not a proxy for the post-conviction court’s discretion.... ” Id. at 712 (quoting Tapia, 753 N.E.2d at 585-86) (internal quotations omitted). Our supreme court then went on to discuss the difficulty the Indiana Public Defender’s Office faced in meeting its then-statutory obligation of representing every incarcerated indigent post-conviction petitioner, even when, as in that case, the actions of the Public Defender appeared to be diligent and timely. Id. (citing Ind.Code § 33-l-7-2(a) (repealed 2004)). The court in Tucker concluded that without a showing of an improper purpose for the motion to withdraw or of substantial prejudice to the State, the post-conviction court abused its discretion by denying the motion to withdraw. Id. at 713.

In Tapia, our supreme court reviewed a post-conviction court’s denial of a motion to withdraw a petition for post-conviction relief and concluded the court’s denial was not an abuse of discretion. 753 N.E.2d at 586. The court noted that Tapia “made little effort to explain what he would gain by delaying the proceedings” other than his claim that “he ‘recently discovered substantial errors which he verily believes warrant relief.’ ” Id. Our supreme court concluded “[t]he post-conviction court could balance what speculative benefit Ta-pia would derive from a delay against the costs to the court in wasted time, and conclude that Tapia was not entitled to withdraw his petition” because “[wjithout any valid explanation as to what would be gained from further delay, we cannot say that the post-conviction court abused its discretion by rejecting Tapia’s motion.” Id.

Here, Thomas had already filed an initial petition for post-conviction relief, and the post-conviction court granted both a motion to continue and then a motion to withdraw his petition. The petition at issue here is his second petition for post-conviction relief, and his stated reason for asking the court to withdraw his petition is that newly discovered evidence may come to light during Taylor’s retrial. Thomas is correct that the State’s only claim of prejudice if the post-conviction court were to grant Thomas’s motion to withdraw is that the State would have to use additional time and resources if Thomas filed a third petition for post-conviction relief after Taylor’s retrial. However, as our supreme court stated, prejudice to the non-moving party, or lack thereof, is one indicator, but it is not always determinative of whether the post-conviction court abused its discretion. We conclude the post-conviction court’s denial of Thomas’s motion to withdraw his petition was not clearly against the logic and effect of the facts and circumstances before the court. Any benefit Thomas could derive from the delay was speculative, and the post-conviction court could properly balance the speculative benefit against the costs to the court and the State in wasted time. See Tapia, 753 N.E.2d at 586. Further, Thomas already had ample opportunity to conduct discovery himself. It was not an abuse of the post-conviction court’s discretion to refuse Thomas’s request to withdraw his petition based on his hope of an evidentiary windfall from Taylor’s retrial.

II. Ineffective Assistance of Counsel

A. Standard of Review

The standard for gauging appellate counsel’s performance is the same as that for trial counsel. Allen v. State, 749 N.E.2d 1158, 1166 (Ind.2001), cert. denied, 535 U.S. 1061, 122 S.Ct. 1925, 152 L.Ed.2d 832 (2002). To succeed on a claim of ineffective assistance of counsel, a petitioner must show by a preponderance of the evidence that (1) his counsel’s representation fell below an objective standard of reasonableness, and (2) that, but for counsel’s unprofessional errors, the result would have been different. Stevens v. State, 770 N.E.2d 739, 746 (Ind.2002). A strong presumption exists that counsel rendered adequate assistance and used reasonable professional judgment. Id. In determining strategy and tactics, counsel is afforded considerable discretion, and isolated mistakes, poor strategy, inexperience, or instances of bad judgment do not necessarily render representation ineffective. Id. at 746-47.

B. Trial Counsel

Thomas argues he received ineffective assistance of trial counsel in two respects. First, he claims his counsel failed to adequately impeach one of the State’s witnesses, Stacey Orue, on cross-examination. Second, he claims his counsel should have objected to the State’s closing argument when the State allegedly vouched for its witnesses. As to his attorney’s impeachment of Orue, Thomas points to the fact that his counsel did not impeach Orue regarding a sworn petition for post-conviction relief wherein she stated she took no part in the crime even though, at Thomas’s trial, she testified she was present in Hunt’s apartment when Thomas robbed and shot Hunt.

However, as the State points out, Thomas’s counsel did impeach Orue in several ways, including inconsistent statements regarding her presence at the scene of the crime. First, counsel extracted information from Orue about her prior cocaine and prostitution habits, as well as her prior convictions, including felony murder for the robbery and death of Hunt. Second, Orue admitted that she lied to police when they initially interviewed her after the incident. Last, and most importantly, counsel succeeded in getting Orue to admit that she had repeatedly stated she was not present in Hunt’s residence when the crime occurred. We cannot say Thomas’s trial counsel performed in an unreasonable manner. The point Thomas argues should have been elicited at trial — that Orue’s testimony about what happened at Hunt’s residence was untrustworthy because she previously claimed she was not even present in the apartment — was in fact elicited. The manner in which it was brought forth is a matter of strategy and even if a better strategy could have been chosen, this does not amount to ineffective assistance of counsel. Further, even if this was an unreasonable performance by Thomas’s counsel, it is unlikely the result of Thomas’s trial would have been any different if Orue had been impeached concerning her sworn petition because the jury was already presented with evidence of Orue’s contradictory statements.

Thomas next argues his trial counsel should have objected during the State’s closing argument because he contends the State improperly vouched for its witnesses. Thomas is correct that a prosecutor may not state his or her personal opinion regarding the credibility of a witness during trial. See Schlomer v. State, 580 N.E.2d 950, 957 (Ind.1991) (“[i]t is improper for the prosecutor to make an argument which takes the form of personally vouching for the witness”); see also Gaby v. State, 949 N.E.2d 870, 880-81 (Ind.Ct.App.2011) (concluding prosecutor’s statements that “I cannot and would not bring charges that I believe were false” and “I can tell you that with a guilty verdict on this case I will be able to sleep fine tonight. Just fíne. In fact, better than fine. You will be able to also” were improper vouching). However, a prosecutor may comment as to witness credibility if the assertions are based on reasons arising from the evidence presented in the trial. Gaby, 949 N.E.2d at 881.

Here, Thomas points to page 542 of the Transcript in arguing that the State improperly vouched for its witnesses. Thomas does not provide us with any further detail about which statements he claims amount to vouching, but to address the merits of his claim we will assume he is referencing the State’s discussion of the importance of witness credibility, and, specifically, the statement that “I’d like to discuss with you why we believe on behalf of the state that these witnesses are credible.” Tr. at 542. After making this statement, the State described common reasons witnesses lack credibility, such as personal interests, bias, and prejudice. The prosecutor then discussed each witness or group of witnesses and the circumstances of each that were presented to the jury. The prosecutor pointed out that neighbors who testified were innocent bystanders who just happened to live above Hunt, that the testifying police officers’ interests were in seeing the crime get solved correctly, and that, even though defense counsel cross-examined each witness and attempted to reveal issues of credibility, no such issues arose. The State also informed the jury that credibility can be blurred for physical reasons, such as a witness being on drugs at the time of an incident, or for nervous or otherwise untrustworthy behavior while testifying, and that those issues were not presented with the State’s witnesses. We conclude the prosecutor’s statements did not amount to improper vouching, but rather, were comments regarding witness credibility based on the evidence presented at Thomas’s trial.

C. Appellate Counsel

Thomas argues he received ineffective assistance of appellate counsel in that his counsel did not raise a claim that the evidence was insufficient to convict Thomas of felony murder. He argues the outcome of his appeal would have been different had his counsel raised an insufficiency claim because the State failed to present sufficient evidence that Thomas’s conduct killed Hunt. More specifically, he contends Indiana Code section 1-1-4-3 (1986) defines death as (1) irreversible cessation of circulatory and respiratory functions; or (2) irreversible cessation of all functions of the entire brain, including brain stem, and that no evidence was presented establishing that Hunt was dead as defined by this statute at the time she was removed from life support.

When reviewing a claim of insufficient evidence, this court considers only the probative evidence supporting the verdict and the reasonable inferences drawn therefrom. Boggs v. State, 928 N.E.2d 855, 864 (Ind.Ct.App.2010), trails, denied. We do not reweigh the evidence or assess witness credibility, and we consider conflicting evidence most favorably to the trial court’s ruling. Id. We will affirm a conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict, and it is not necessary that the evidence overcome every reasonable hypothesis of innocence. Id.

The cause of death is not an element of the offense of felony murder. See Ind.Code § 35-42-1-1 (“A person who: ... (2) kills another human being while committing or attempting to commit ... robbery ... commits murder, a felony.”); Wilson v. State, 432 N.E.2d 30, 33 (Ind. 1982) (“The cause of death is not an element of the offense [of murder] itself; the element in question is the killing, absent a suggestion of intervening cause.”); Williams v. State, 782 N.E.2d 1039, 1047 (Ind.Ct.App.2003) (“The cause of death is not an element of the offense of murder itself, but becomes a relevant matter when an intervening cause of death is suggested.”), trans. denied. Thus, what Thomas is really arguing is that Hunt’s removal from life support was an intervening cause of death. “An intervening cause is an independent force that breaks the causal connection between the actions of the defendant and the injury.... In order for an intervening cause to break the chain of criminal responsibility, it must be so extraordinary that it would be unfair to hold the defendant responsible for the actual result.” Spencer v. State, 660 N.E.2d 359, 362 (Ind.Ct.App.1996).

Here, Orue testified that she drove with Thomas and Taylor to Gwendolyn Hunt’s apartment. Orue knocked on the door, and Hunt began to open it. When Hunt saw that Orue was not alone, Hunt attempted to close the door, but Thomas forced the door open and entered the apartment. Orue stated that after going into the apartment for two to three minutes, Thomas returned to the entryway and shot Hunt in the head. Hunt did not die immediately, but died later at the hospital after being taken off life support. Dr. Joseph Prahlow, a forensic pathologist, testified regarding Hunt’s cause of death. Dr. Prahlow testified that the bullet fired at Hunt went through her skull and brain. Dr. Prahlow stated:

After going through the left occipital lobe, [the bullet] went through the deep central structures of the brain where the brain stem and spinal cord attach to the rest of the brain. Some very, very important structures in the deep part of the brain.... The fact that the deep structures in the brain were injured, however, makes ... this gunshot immediately incapacitating at the very least.... The cause of death for Ms. Hunt was ... a gunshot wound of the head.

Transcript at 422-24.

Based on our standard of review of sufficiency of the evidence claims, the outcome of Thomas’s appeal would not have changed had his appellate counsel raised sufficiency of the evidence as an issue in his first appeal. The evidence most favorable to the trial court’s verdict is that the gunshot wound was the cause of Hunt’s death. The removal of life support is not an independent force so extraordinary as to break the causal connection between the gunshot and Hunt’s death.

III. Due Process

Thomas next argues his due process rights were violated because the State failed to disclose the existence of an agreement with Orue in exchange for her testimony condemning Thomas. As evidence of the alleged agreement, Thomas points to Orue’s sentence, issued after Thomas’s retrial, of forty-five years in prison, the lowest possible sentence for a conviction of felony murder. See Ind.Code § 35-50-2-3(a). “A prosecutor must disclose to the jury any agreement made with a witness and any promises, grants of immunity, or rewards offered in return for testimony.” Rubalcada v. State, 731 N.E.2d 1015, 1024 (Ind.2000) (citations omitted). “The prosecutor’s duty of disclosure arises when there is a confirmed promise of leniency in exchange for his testimony” and a “witnesses’s expectations, coupled with evidence of a deal after the in-court testimony of the witness, are insufficient to require that a disclosure be made.” Id. (citations omitted).

Here, when Orue testified, her immunity agreement with the State was disclosed to the jury. When asked if she had any reason to think she would receive anything other than immunity in exchange for testifying, she replied that she did not. The only evidence asserted by Thomas in support of his contention that an agreement was established is that Orue’s sentence was the statutory minimum. Nonetheless, her sentence was within the range allowed by statute. Thus, without any other evidence supporting Thomas’s claim, there was no confirmed promise of an agreement and the State’s lack of disclosure of the alleged agreement did not violate Thomas’s due process rights.

Conclusion

The post-conviction court did not abuse its discretion in denying Thomas’s motion to withdraw his petition for post-conviction relief. Thomas has failed to establish that he received ineffective assistance of trial or appellate counsel, and his due process rights were not violated at trial by the State’s nondisclosure of an alleged leniency agreement with one of its witnesses. We therefore affirm the post-conviction court’s denial of his motion to withdraw his petition and its denial of his petition for post-conviction relief.

Affirmed.

NAJAM, J., and VAIDIK, J., concur.

      . While it is clear from Thomas’s brief that Taylor's retrial was scheduled sometime after Thomas's post-conviction hearing, nothing in the record substantiates this or indicates when Taylor’s retrial was or is set to occur.

      . Parties to an appeal are required to present "cogent argument supported with adequate citation to authority because it promotes impartiality in the appellate tribunal. A court which must search the record and make up its own arguments because a party has not adequately presented them runs the risk of becoming an advocate rather than an adjudicator. A brief should not only present issues to be decided on appeal, but it should be of material assistance to the court in deciding those issues. On review, we will not search the record to find a basis for a party’s argument nor will we search the authorities cited by a party in order to find legal support for its position.” Young v. Butts, 685 N.E.2d 147, 151 (Ind.Ct.App.1997) (citations omitted).