author: MATHIAS, Judge.

text:
    Robert CORBIN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 75A03-1209-CR-402.
    Court of Appeals of Indiana.
    Oct. 11, 2013.

      Nicholas T. Otis, Newby, Lewis, Kamin-ski & Jones, LLP, La Porte, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Justin F. Roebel, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MATHIAS, Judge.

Robert Corbin ("Corbin") brings this interlocutory appeal from the Starke Cireait Court's denial of his motion to dismiss two counts of attempted child seduction. On appeal, Corbin claims that the facts alleged in the charging information are insufficient to support the charges alleged and that the trial court therefore erred in denying his motion to dismiss.

We find Corbin's conduct to be morally reprehensible. But we are also constrained to find that, as charged in the first count, Corbin did not take the substantial step required to amount to attempted child seduction. As to the second count, we are similarly constrained to find that Corbin again did not take the substantial step required to amount to attempted child seduction. In addition, the second count does not even charge a erime under Indiana law. We must therefore reverse and remand.

Facts and Procedural History

In March 2012, Corbin was a teacher and swimming team coach at Knox High School in Starke County, Indiana. At the time, A.H. was a sixteen-year-old sophomore at the high school. On March 17, 2012, AH. received a message on Face-book from Corbin informing her that he did not accept students as Facebook friends. From that point on, however, Corbin sent A.H. several Facebook messages of a sexual nature. According to the State's allegations in the charging information, on March 21, 2012, Corbin sent A.H. a message asking the girl to "physically take care of his sexual arousal. Appellant's App. p. 9. He also asked her to sneak out of the house after her father's girlfriend fell asleep so he could drive over and pick her up. The following day, Cor-bin sent A.H. a Facebook message asking her to send him a "kiss" photograph and also asked how large her breasts were. Corbin also asked if A.H. could sneak out of the house so that he could "see her breasts in person[.]" Id.

Thereafter, AH .s aunt checked AH.'s Facebook account and came across the messages between AH. and Corbin. A.H.'s aunt contacted her brother, A.H.'s father, who then reported Corbin's behavior to the police on March 28, 2012, The police interviewed Corbin on March 31 and April 1, 2012. Corbin admitted to sending the messages to A.H. But when asked if it was "his intention to have [A.H.] come to his house to act on the messages sent[,] [hle stated that they talked about it, but Corbin was unsure if it would happen." Id. at 7.

_On April 3, 2012, the State charged Cor-bin as follows:

COUNT I: ATTEMPTED CHILD SE. DUCTION 1.C. 385-41-5-1, 35-42-4-7(Kk)(1) AND 35-42-4-7(k)(2)(A)(ii)/ CLASS D FELONY
[O]n or about March 21, 2012, ROBERT CORBIN, being over eighteen (18) years of age ... and a childcare worker employed by a school corporation attended by the victim, did knowingly and intentionally attempt to engage in fondling or touching with the intent to arouse or satisfy the sexual desires of either the child or the adult, to-wit: that Robert Corbin sent Facebook messages to a student, A.H., asking her to "physically take care of it" because he was sexually aroused and he took a substantial step toward the crime by asking her to sneak out after the adult in the house was asleep and he would drive over to pick her up, and Robert Corbin admitted that he was sexually aroused by the messages being sent back and forth between him and A.H.; and further,
COUNT II ATTEMPTED CHILD SEDUCTION 1.C. 35-41-5-1, 35-42-4-7(K)(1) AND 35-42-4-7(k)(2)(A)Gi)/ CLASS D FELONY
[O]n or about March 22, 2012, ROBERT CORBIN, being over eighteen (18) years of age ... and a childeare worker employed by a school corporation attended by the victim, did knowingly or intentionally attempt to engage in fondling or touching with the intent to arouse or satisfy the sexual desires of either the child or the adult, to-wit: that Robert Corbin sent Facebook messages to a student, A.H., asking her to send him a "kiss" photograph and what size her breasts were and he took a substantial step toward the crime by asking if she could sneak out of the house so he could see her breasts in person and Robert Corbin admitted that he was sexually aroused by the messages being sent back and forth between him and AH.

Appellant's App. p. 9.

On April 10, 2012, Corbin filed a motion to dismiss the charges, claiming that the facts as alleged failed to satisfy the elements of the crimes charged. The State responded on May 9, 2012, and the trial court held a hearing on the matter on June 6, 2012. The trial court entered an order denying Corbin's motion to dismiss on August 14, 2012. Corbin filed a motion on August 21, 2012 seeking to certify the trial court's order for interlocutory appeal. The trial court granted this motion on August 22, 2012, and this court accepted interlocutory jurisdiction over the appeal on October 29, 2012.

Standard of Review

Corbin brought his motion pursuant to Indiana Code section 35-34-1-4(a)(5), which provides that a trial court "may, upon motion of the defendant, dismiss the indictment or information upon any of the following grounds: ... The facts stated do not constitute an offense." See Ceaser v. State, 964 N.E.2d 911, 918 (Ind.Ct.App.2012) ("an information may be dismissed if the facts stated in the information do not constitute an offense."), trans. denied. We generally review a trial court's denial of a defendant's motion to dismiss for an abuse of discretion. Id. However, to the extent that the question at issue is one of a matter of law, this is a question we review de movo. See Adams v. State, 960 NE.2d 793, 797 (Ind.2012) ("Because a question of statutory interpretation constitutes a question of law, we review it de novo.").

I. The "Age of Consent" and Child Seduction

Generally speaking, the "age of consent" in Indiana is sixteen. See Ind.Code § 35-42-4-3 (defining sexual conduct with a child under the age of fourteen as the crime of child molesting); Ind.Code § 35-42-4-9 (defining sexual conduct with a child at least fourteen but less than sixteen years of age as the crime of sexual misconduct with a minor); Ind.Code § 35-42-4-6 (criminalizing the solicitation of a child to engage in sexual activity if the child is under the age of sixteen); Ind.Code § 35-42-4-5 (criminalizing vicarious sexual gratification involving a minor and fondling in the presence of a minor, defined as a person under the age of sixteen).

There are, however, several exceptions to this general rule of consent at the age of sixteen. For example, possession or production of pornography depicting a child under the age of eighteen is eriminal-ized by Indiana Code section 35-42-4-4. At issue in the present case is another exception to this general rule, the Child Seduction statute, which provides in relevant part:

If a person who:
(1) is at least eighteen (18) years of age; and
(2) is:
(A) the:
(i) guardian, adoptive parent, adoptive grandparent, custodian, or stepparent of; or
(Gi) child care worked [] for, or
(B) a military recruiter who is attempting to enlist;
a child at least sixteen (16) years of age but less than eighteen (18)
years of age; engages with the child in sexual intercourse, deviate sexual conduct (as defined in IC 35-31.5-2-94),[] or any fondling or touching with the intent to arouse or satisfy the sexual desires of either the child or the adult, the person commits child seduction, a Class D felony.

Ind.Code § 35-42-4-7 (emphasis added). Thus, if an adult employee of a school corporation touches or fondles a child at least sixteen but under eighteen years of age who attends that school corporation with the intent to arouse or satisfy the sexual desires of either the child or the employee, then the employee commits Class D felony child seduction.

II. Criminal Attempt

Here, because AH. was sixteen years old at the time of the communications alleged in the charging information, Corbin could not be charged with child solicitation. See I.C. § 35-42-4-6. Instead, Corbin was charged with attempted child seduction under Indiana Code Seetion 35-42-4-7. The attempt statute explains that "[a] person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime." Ind.Code § 35-41-5-1. For purposes of the attempt statute, a "substantial step" is any overt act beyond mere preparation and in furtherance of intent to commit an offense. Collier v. State, 846 N.E.2d 340, 344 (Ind.Ct.App.2006).

The question of whether a defendant has taken a substantial step toward the commission of a crime is generally a question of fact to be decided by the trier of fact based on all the particular cireum-stances of the case. Id. However, in other cases, what constitutes attempt may be decided as a matter of law. Seq, eg., Ward v. State, 528 N.E.2d 52, 55 (Ind.1988) (concluding that evidence most fa vorable to the verdict failed, as a matter of law, to establish that the defendant committed attempted child molesting); Collier, 846 N.E.2d at 344 (concluding that defendant's undisputed behavior did not, as a matter of law, constitute a substantial step toward the commission of the crime of murder); State v. Kemp, 758 N.E.2d 47, 51 (Ind.Ct.App.2001) (affirming trial court's dismissal of charges against defendant where facts alleged did not, as a matter of law, constitute attempted child molesting). Because of the procedural posture of this case, we are called upon to review whether Corbin's conduct amounted to a substantial step toward commission of the crime charged as a matter of law.

In determining whether an attempt has occurred, the focus should be on what acts have been completed, not what remains to be done, and the acts completed by the defendant must be "strongly corroborative of the firmness of the defendant's criminal intent." Collier, 846 N.E.2d at 344 (citing Mitchem v. State, 685 NE.2d 671, 676 (Ind.1997)). "[The liability of the defendant turns on his purpose as manifested through his conduct." Id. (citing Zickefoose v. State, 270 Ind. 618, 623, 388 N.E.2d 507, 510 (1979)).

Our supreme court has described the requirement of a substantial step as a "minimal one." State v. Van Cleave, 674 N.E.2d 1293, 1304 (Ind.1996). But as this court noted in Collier, "[hlow conduct can simultaneously be described as both 'substantial and 'minimal is [a] dilemma." 846 N.E.2d at 344. Even our supreme court has noted this dilemma, stating: "[d Jefining what constitutes an attempt has always been a burden upon the common law, challenging even the most respected judges." Ward, 528 N.E.2d at 53-54 (footnote omitted).

III. Solicitation as Attempt

An additional problem arises. when the substantial step alleged to have been taken by the defendant consists only of solicitation. Even a.cursory review of the extant case law the difficult issues that courts face when considering this issue.

A. Ward v. State

Our supreme court addressed the issue of solicitation as attempt in Ward v. State, in which the court considered the sufficiency of the evidence supporting the defendant's convictions for two counts of attempted child molesting. In the first incident, the defendant approached an eleven-year-old boy, D.D., on the street and asked if the boy would like Ward to perform fellatio on him. Ward told D.D. that the sheriff would "get D.D. in trouble" and stated that the sheriff was a "pervert." Id. at 55. Ward asked D.D. three times if he wanted to have Ward perform fellatio on him. The boy refused and later told the sheriff about the incident.

To verify D.D.'s story, the sheriff asked R.C., a fifteen-year-old boy, to approach Ward and engage in casual conversation but not to broach the subject of sex. R.C. found Ward and greeted him, and Ward responded by offering the boy a beer. R.C. declined, but Ward then told R.C. that, if he would keep the incident a secret, he would perform fellatio on him. Ward then vaguely suggested that if R.C. were in Ward's nearby hometown, he should visit Ward. Ward was later convicted for two counts of attempted child molesting.

On appeal, our supreme court set forth a two-part test to apply in considering whether solicitation constitutes attempt:

We adopt two separate tests to determine when solicitation may be a substantial step. The first test is fairly mechanical and the second involves an assessment of the wrong which the legislature seeks to sanction.
Three-Part Test for Solicitation. First, a solicitation may be a substantial step only when: 1) the solicitation takes the form of urging; 2) the solicitation urges the commission of the crime at some immediate time and not in the future; and 3) the cooperation or submission of the person being solicited is an essential feature of the substantive crime.
Nature of the Crime. Second, if those findings are made, the court must consider the specific crime, and the wrong ful human conduct that the legislature sought to sanction. One commentator has stated an eloquent principle about the role which the nature of the crime plays in determining what a substantial step is: ... the more serious the crime attempted or the greater the menace to the social security from similar efforts on the part of the defendant or others, the further back in the series of acts leading up to the consummated crime should the criminal law reach in holding the defendant guilty for attempt.

Id. at 54.

Applying this test to the facts before it, the court first noted that Ward initiated the contact with D.D., solicited him three times "in a context that amounted to urging or persuasion rather than mere invitation," and noted that Ward had urged the commission of the crime immediately. Id. at 55. Thus, the court concluded that "[the pursuit, the approach, the multiple requests, and Ward's initial statements to D.D., which were provocative and authoritative, all indicated that Ward's solicitation was a substantial step toward committing child molesting." Id. The court also noted that child molesting required the cooperation or submission of the child being solicited. Thus, the court summarized:

The solicitation of D.D., therefore, was: (1) substantially in the nature of persuasion, (2) aimed at immediate commission of a crime, and (8) aimed at committing an offense dependent on cooperation of the one being solicited. The presence of these three features and the relatively serious nature of child molesting as a crime suggests that this set of acts may be fairly characterized as an attempt.

Id.

With regard to R.C., however, the court came to the opposite conclusion. The court noted that Ward did not follow or approach R.C. Instead, it was R.C. who sought out and approached Ward. Ward also only solicited R.C. once, causing the court to conclude that Ward's solicitation failed to be an urging or persuasion. And Ward's conversation with R.C. was, at least in part, directed to future opportunity as opposed to immediate sexual activity. "Thus, two of the elements which suggest categorizing -the solicitation of D.D. as an attempt [welre not applicable in the case of R.C." Id. The court accordingly held that the evidence was insufficient to establish that Ward attempted to molest R.C. Id.

B. Benson v. State

The Ward test was subsequently applied by our court in Benson v. State, 574 N.E.2d 934 (Ind.Ct.App.1991), in which the defendant drove a fifteen-year-old girl to his home so that the girl could visit with the defendant's stepchildren. While in the car, Benson told the girl that he wanted to "make love" to her. Id. at 984. When they got to Benson's home, both he and his wife repeatedly attempted to persuade the girl to have sexual intercourse with them. But the girl refused. Later, Benson and his wife told the girl that they were "disappointed" in her, and the wife stroked the girl's leg. Id. When the girl became upset, Benson gave her pills and wine, causing her to become dizzy. Benson's wife then grabbed the girl's legs and tried to force her to have sexual intercourse, but the girl broke free. Benson and his wife then told the girl that they would "drop the subject" for the rest of the night, but at one point during the night, Benson asked the girl to lie down next to his wife. Id. The next day, the girl again refused an offer to have sex with Benson, his wife, and a third party.

On appeal from his conviction for, among other things, attempted child molesting, Benson claimed that, because the behavior upon which his conviction for attempted child molesting was based was ° solely verbal, the State had failed to prove that he engaged in a "substantial step" toward the crime of child molesting. Applying the test from Ward, the Benson court dealt summarily with this argument:

[Benson] initiated the contact with D.S. and, along with his wife, made repeated attempts to persuade [her] to engage in sexual intercourse. The solicitation was aimed at immediate commission of the crime, and, as the Ward court recognized, the substantive crime of child molesting is a two-party offense requiring the cooperation or submission of the child being solicited. This] evidence was sufficient to show that [Benson] engaged in conduct constituting a substantial step toward commission of child molesting. ‘

Id. at 935 (citation omitted).

C. Shahan v. State

In Shahan v. State, 669 N.E.2d 1012 (Ind.Ct.App.1996), the defendant was convicted of attempted child molesting based on his sexual solicitation of his own daughter. In that case, Shahan approached his daughter and asked her to touch his penis, but she refused. He then stated that, if she did not touch it, he would have to do so himself, but she still refused. On appeal, we affirmed and held that this was sufficient under Ward, noting that Shahan approached his daughter twice and requested that she "participate in the immediate gratification of his sexual desires." Id. at 1014 (emphasis added). The court also noted Shahan's persistence. And given Shahan's position of trust as the victim's father, the court held that "Thlis solicitation of his daughter may fairly be characterized as an urging that she fondle him." Id. (emphasis added). Thus, the court concluded that "the evidence [wals sufficient to support the determination that Shahan engaged in an overt act which constituted a substantial step toward the commission of child molesting." Id.

D. Mettler v. State

In Mettler v. State, 697 N.E.2d 502 (Ind.Ct.App.1998), the defendant left a letter in an envelope on his eighteen-year-old daughter's bed. The envelope also contained a five dollar bill and one-half of a one hundred dollar bill. The letter solicited Mettler's daughter to submit to fondling and cunnilingus and promised her the other half of the hundred dollar bill if she complied. The daughter was frightened by the letter and told a friend about it, and the friend's stepfather informed the police. Mettler never spoke to his daughter about his sexual desires, never physically confronted her, and there was no further attempt at communicating to her after the letter. The State subsequently charged Mettler with attempted incest, and Mettler was convicted.

On appeal, Mettler claimed that his letter soliciting his daughter to commit incest was insufficient to constitute a substantial step toward commission of the crime. Applying the Ward test, the court concluded:

Incest is a serious crime, and one which clearly is a menace to the moral good of society so that we would be more likely to find an attempt if the three-part test of Ward had been met. However, neither of the first two parts of that test have been met. Mettler's one-time-only letter, in our opimion, does not constitute urging. Even if we were to concede urging, the invitation to the daughter was to come into the front room some night. This hardly can be classified as seeking immediate action. Mettler's request is nothing more than one for submission to his sexual desires at some undefined future time.

Mettler, 697 N.E.2d at 503-04 (emphasis added). The court contrasted these facts with those in Ward, Benson, and Shahan and concluded that "[wlithout question Mettler's conduct was depraved, disgusting, and despicable, but it did not rise to the level of an attempt to commit the crime of incest." Id. at 504. Therefore, the court reversed the conviction. With these eases in mind, we now turn to Corbin's conduct as charged in the case before us.

IV. Corbin's Claim

On appeal, Corbin argues that, under our supreme court's two-part test from Ward, his conduct did not constitute a substantial step toward the commission of the crime of child seduction. In considering this claim, we are mindful that we test the sufficiency of a charging information by assuming the facts alleged in the information are true. State v. Isaacs, 794 N.E.2d 1120, 1122 (Ind.Ct.App.2003). : We will consider each count of the charging information in order.

A. Count I

Count I alleged that Corbin sent A.H. Facebook messages asking her to "physically take care of" his sexual arousal and took a substantial step toward the commission of child seduction by asking A.H. to. sneak out of her house after the adult in the house fell asleep where he would pick her up. Appellant's App. p- 9. The question we now consider is whether this alleged behavior, taken as true for purposes of our review, was sufficient, under the test set forth in Ward, to constitute a substantial step toward the erime of child seduction.

1. Part One of the Ward Test

The first part of the Ward test is composed of three elements: (1) solicitation in the form of urging; (2) solicitation urging the commission of the crime at some immediate time and not in the future; and (8) cooperation or submission of the person solicited being an essential feature of the substantive crime. We address these in order.

The first prong of the test is whether the solicitation took the form of urging or persuasion rather than mere invitation. See Ward, 528 N.E.2d at 54. As alleged in Count I of the charging information here, Corbin "asked" AH. to physically "take care of" his sexual arousal and "asked" her to sneak out of the house when "the adult in the home was asleep and he would drive over to pick her up." Appellant's App. p. 9. Although Corbin does not develop an argument on this prong of the Ward test, his requests, as they are charged, appear to be simply an invitation.

Even if we were to conclude that, from his position as a teacher, his requests to A.H. could be considered urging or persuasion, Corbin's actions as they are alleged in the charging information did not urge the immediate commission of the crime. Indeed, Corbin focuses his argument on this second step of the first portion of the Ward test. Corbin notes that his communications to A.H. were not made in the girl's physical presence. Thus, he argues that he did not have the capacity to immediately commit the crime. He also claims that his communications were about future conduct, not about immediate conduct. This was a key factor distinguishing the behavior of the defendant in Ward visa-vis the two children involved in that case. See Ward, 528 N.E.2d at 55 (noting that defendant's statements to second child involved future conduct). We agree with Corbin that his conduct as charged did not urge the immediate commission of a crime.

Unlike the defendants in Ward, Benson, and Shahan, in the ease before us, Corbin did not solicit A.H. face-to-face; thus there was little opportunity for immediate commission of the crime. And all of Corbin's solicitations asked A.H. to leave her house at some point in the future, not immediately. Corbin's solicitations are more akin to the letter left by the defendant in Mettler, which the court held did not urge immediate commission of incest. Certainly Meit-ler, who was in the same house with his daughter when he left the soliciting letter, was in more of a position to immediately commit the erime of incest than was Cor-bin in a position to immediately commit the crime of child seduction. While we do not preclude the possibility that a non-face-to-face communication could urge the commission of the crime immediately, as charged in Count I, Corbin did not even leave his home to meet with A.H. Under these facts and cireumstances, Corbin's solicitations were not "aimed at immediate commission of a crime." Ward, 528 N.E.2d at 55.

The third step in the first portion of the Ward test is whether the cooperation or submission of the person being solicited is an essential feature of the substantive crime. This is certainly true regarding the crime of child seduction, which is a two-party offense requiring the cooperation or submission of the child. Cf. Ward, 528 N.E.2d at 55 (noting that the substantive crime of child molesting is a two-party offense, which requires the cooperation or submission of the child being solicited). Here again, Mettler is instructive. AH. was in a far stronger position to resist cooperating or submitting than Mettler's daughter was, living as she did with Mettler when Mettler solicited her for incest. We simply cannot say that A.H. was in a position or location to immediately cooperate with or submit to Corbin's solicitations.

As charged in Count I, at least, Corbin clearly asked AH. to engage in sexual activity. But even if his requests could be considered to be urging or persuasion, they were not "aimed at immediate commission of a crime." Ward, 528 N.E.2d at 55 (emphasis added). In addition, the cooperation or submission of the victim is an essential feature of the substantive crime under Ward, and AH. was never in a position or location to cooperate with or submit to Corbin's solicitations.

For all of these reasons, under the first part of the Ward test, Corbin's actions of solicitation, as alleged in Count I, do not constitute a substantial step toward the commission of the substantive crime of child seduction.

2. Attempt under Kemp v. State

Although focused on the crime of attempted child molesting, State v. Kemp, 753 NE.2d 47 (Ind.Ct.App.2001), trans. denied, superseded by statute on other grounds as noted in LaRose v. State, 820 N.E.2d 727, 732 (Ind.Ct.App.2005), provides good direction to us as we consider the crime of attempted child seduction. In Kemp, a detective posed online as a fourteen-year-old girl with the alias "Britt-ney4U2." Id. at 51. Kemp initiated an online chat with "Brittney," who told him to "come on down," and suggested a place to meet. Id. at 51-52. Kemp agreed and drove to the proposed meeting place, where he was arrested. The police found a package of condoms in Kemp's vehicle. Kemp was later convicted of, inter alia, attempted child molesting.

On appeal, this court reversed, noting that "[the overt act must reach far enough towards accomplishing the attempted crime as to amount to commencement of consummation of the crime. The overt act must go beyond preparation and planning." Id. at 50. We concluded that the substantial step alleged by the State-agreeing to meet "Brittney," driving to the meeting place, and bringing condoms-was mere preparation and planning, and insufficient as a matter of law to constitute a substantial step sufficient to constitute attempt. Id. By any account, Kemp's conduct went substantially further than the conduct charged to Corbin in Count I, and yet it was still insufficient as a matter of law to constitute a substantial step toward the commission of the underlying crime. In like manner, Corbin's conduct, as alleged in Count I, is legally insufficient to establish that he took a substantial step toward the commission of the crime of child seduction. ©

B. Count II

An additional problem surfaces when we consider Count II, which alleged that Corbin sent Facebook messages to AH. in which he asked her to send him a "kiss" photo, asked what size her breasts were, and asked if she could sneak out of the house so that he could see her breasts in person. Even if we consider Corbin's requests as persuasion or urging, his statements were not aimed at immediate commission of the crime, but instead referred to some unspecified time in the future. And again, although cooperation or submission of the victim is an essential feature of the crime, A.H. was never in a position or location to cooperate with or submit to Corbin's communications.

But an additional problem surfaces when we review the allegations in Count II. Although neither raised by Cor-bin nor briefed by either party, the behavior that Corbin is alleged to have attempted in Count II does not even fall within the definition of child seduction. Corbin's failure to raise this argument does not prevent our consideration of this issue, as conviction for a non-existent offense would be fundamental error. See Vandeventer v. State, 459 N.E.2d 1221, 1222 (Ind.Ct.App.1984) (citing Hargis v. State, 220 Ind. 429, 44 N.E.2d 307 (1942); Moon v. State, 267 Ind. 27, 366 N.E.2d 1168 (1977)).

Corbin was charged in Count II with asking A.H. to send him a "kiss" picture, asking what size her breasts were, and asking if he could meet her so that he could see them in person. Although this is extremely disturbing and morally reprehensible behavior on the part of a teacher, asking for a "kiss" picture and asking what size a girl's breasts are do not to fall within the ambit of the crime of child seduction, which eriminalizes (1) sexual intercourse, (2) criminal deviate conduct, or (3) touching or fondling with the intent to arouse or satisfy sexual desires, when done by a teacher to a student. See I.C. § 35-42-4-7. Under the plain language of this statute, simply looking at the breasts of a sixteen-year-old student is not eriminal conduct. Thus, even if Corbin's actions did constitute attempt, what he is alleged to have attempted in Count II does not constitute child seduction. Whether Cor-bin's conduct as alleged in Count II should be criminalized is, of course, a question beyond our purview. See Kemp, 753 N.E.2d at 50 (noting that even if an act falls within the spirit of a eriminal statute, the act will not constitute an offense unless it also falls within the letter of the statute, and further noting that criminal statutes are strictly construed against the State and may not be enlarged by construction, implication, or intendment beyond the fair meaning of the words used).

Conclusion

The behavior alleged in the charging information is deplorable and immoral, and our decision today should not be read in any way to condone Corbin's conduct. Yet, we are bound to narrowly construe criminal statutes in order to protect the constitutional rights of all of our citizens. Here, the charging information at issue alleged that Corbin asked A.H. to engage in sexual behavior at some non-immediate time and did so remotely, over the Internet, which would make immediate commission of the crime difficult, at the very least. Applying the Ward test to the facts alleged in the charging information, we are constrained to conclude that Corbin's Internet-based solicitations to A.H. did not constitute a substantial step toward the crime of child seduction. Indeed, as charged, Count II does not even allege criminal conduct on the part of Corbin. Accordingly, we reverse the trial court's order denying Corbin's motion to dismiss and remand with instructions to grant the motion.

Reversed and remanded.

BAKER, J., and MAY, J., concur.

      . We held oral argument in this case on September 10, 2013, at the Indiana University Maurer School of Law in Bloomington Indiana. We would like to extend our thanks pes to the students, staff, faculty, and administration of the school for their hospitality, and we commend counsel for the quality of their written and oral advocacy.

      . A "child care worker" is defined to include "a person who ... is employed by a school corporation attended by a child who is a victim of a crime under this chapter." I.C. § 35-42-4-7(d)(2).

      . This statute defines sexual deviate conduct as: "an act involving: (1) a sex organ of one (1) person and the mouth or anus of another person; or (2) the penetration of the sex organ or anus of a person by an object." IC. § 35-31.5-2-94.

      . Judge Barteau dissented, concluding as a matter of law that Shahan's solicitation did not constitute a substantial step toward the commission of the crime of child molesting. Id. at 1014 (Barteau, J., dissenting). Judge Barteau thought that Shahan's actions were more akin to the behavior by the defendant in Ward toward the second child in that case, noting that there was "but a single encounter, with no urging, no persuasion, and no exercise of inherent authority." Id. Thus, Judge Barteau concluded that Shahan's statements were a mere invitation. Id.

      . Judge Mattingly (now Judge May) dissented, concluding that the letter did constitute urging and that, under the facts of that case, the trier of fact could reasonably conclude that Mettler was soliciting sex from his daughter in the near future. See id. at 505 (Mattingly, J., dissenting).

      . The State notes that the charging information cited the relevant statute, set forth the date and county where the offense was alleged to have occurred, and cited the bare factual allegations that tracked the statutory language, i.e., that Corbin attempted to engage in fondling or touching with A.H. with the intent to arouse or gratify the sexual desires of either Corbin or A.H. Anything else, the State argues, is mere surplusage and should not form the basis of a motion to dismiss. However, the case cited by the State in support of its argument, State v. King, 502 N.E.2d 1366 (Ind.Ct.App.1987), is distinguishable. The core holding in King was that that "(tlhe sufficiency of an information is tested by this Court by taking the facts alleged in the information as true." Id. at 1368. The defendant in King was attempting to litigate a factual issue by submitting affidavits in support of his motion to dismiss, which was improper. Id. at 1370. Here, however, Cor-bin attacks the sufficiency of the charging information without reference to affidavits, and we take the facts alleged as true.

      . An example that was discussed at oral argument in this case involved an adult text messaging a child while sitting in a car parked nearby the child's house, urging the child to immediately leave the house to meet with the adult for sexual activity.

      . Because we hold that Corbin's conduct as charged in Count I does not constitute attempted child seduction as a matter of law, we need not consider the nature of the crime under Ward. Under the second prong of the Ward test: "the court must consider the specific crime, and the wrongful human conduct that the legislature sought to sanction." Id. at 54. "'The more serious the crime attempted or the greater the menace to the social security from similar efforts on the part of the defendant or others, the further back in the series of acts leading up to the consummated crime should the criminal law reach in holding the defendant guilty for attempt." Id. Although a teacher engaging in sexual activity with a student is a serious issue, and obviously immoral and deplorable behavior, our General Assembly has seen fit to criminally sanction such conduct only as a Class D felony. This is in contrast to the crime of child molesting, which can be a Class A felony, depending on the circumstances. See Ind.Code § 35-42-4-3. Indeed, the Ward court noted that the crime of child molesting was a serious crime that could even act as an aggravating factor supporting the imposition of the death penalty. 528 N.E.2d at 55 (citing Ind.Code § 35-42-1-1(2); Ind.Code § 35-50-2-9(b)(1)). This, the court held, shows that child molesting was a "sufficiently serious crime to justify drawing a fairly early line to identify and sanction behavior as an attempt." Id. This is not true of the crime of child seduction, and future courts should be less inclined to go further back in the series of events leading up to the consummated crime in holding the defendant guilty for attempt.

      . The author of the current opinion concurred in Kemp, and the Kemp opinion was written by Judge Baker, a member of the current panel.

      . Effective July 1, 2014, Public Law 247-2013 § 5 amends the attempt statute to further provide that:
      [A] person engages in conduct that constitutes a substantial step if the person, with the intent to commit a sex crime against a child or an individual the person believes to be a child:
      (1) communicates with the child or individual the person believes to be a child concerning the sex crime; and
      (2) travels to another location to meet the child or individual the person believes to be a child.
      This new statute might well be a legislative response to our decision in Kemp. It is important to note that even if the statute had been in effect to apply to Corbin, Corbin never travelled to meet with AH. and therefore would not have committed a crime. We also notice that our General Assembly has considered these issues and has not yet chosen to criminalize soliciting sex from a child who is at least sixteen years of age.


source: Caselaw Access Project

author: BAKER, Judge.

license: Public Domain

text:
    Rick DEETER, Appellant-Plaintiff, v. INDIANA FARMERS MUTUAL INSURANCE COMPANY, Appellee-Defendant.
    No. 43A04-1305-PL-229.
    Court of Appeals of Indiana.
    Dec. 4, 2013.

      Daniel J. Vanderpool, Vanderpool Law Firm, PC, Warsaw, IN, Attorney for Appellant.
    Thomas R. Haley III, Carmel, IN, Attorney for Appellee.
   OPINION

BAKER, Judge.

Appellant-plaintiff Rick Deeter appeals the trial court's grant of summary judgment in favor of appellee-defendant Indiana Farmers Mutual Insurance Company (Farmers) regarding his claim for insurance proceeds against Farmers. In particular, Rick asserts that Farmers failed to craft a clear and unambiguous insurance policy and thus improperly denied his claim based on the intentional loss exclusion in the policy for his home. Rick also argues that he is an "innocent co-insured spouse" and contends that the fact that Callie Deeter, his wife, is guilty of causing an intentional loss should not bar him from recovery. Thus, Rick argues that a genuine issue of material fact remains as to whether or not Farmers could refuse his claim under the insurance policy exclusion. Concluding that the trial court properly entered summary judgment for Farmers, we affirm the judgment of the trial court.

FACTS

In 1997, Rick and Callie purchased a home located in Pierceton. In December 2010, Rick and Callie contracted with Farmers for a homeowners insurance policy. The policy provided insurance coverage for, among other things, the home the Decters purchased in 1997. The policy insured their home for $124,000 for one year, from January 6, 2011 to January 6, 2012.

The policy contained an exclusion for intentional loss, which was outlined in the following provision and definitions:

Intentional Acts-"We" do not pay for loss which results from an act committed by or at the direction of an "insured" and with the intent to cause a loss.
#8 oue k
"Insured" means:
66 79
a. "you
*e ock ok
The words "you" and "your" mean the person or persons named as the insured on the "Declarations". If "you" are an individual, this includes "your" spouse if a resident of "your" household.

Appellant's App. p. 44, 51. Both Rick and Callie were listed as insured parties on the Declaration Page of the policy.

On March 3, 2011, Rick was at Maple Leaf Farms, where he is employed as an assistant manager. Callie was at home, babysitting for her niece's daughter. When her niece arrived to pick up her child, she told Callie that Rick was allegedly having an affair with another woman. After she left, Callie became irate, breaking things, and calling Rick at work to tell him that she was "tearing up the house." Appellant's App. p. 105. He became alarmed and called 911. Before the police could reach the Deeters' home, Callie purposefully started a fire in the living room on the first floor. When the police arrived, Callie was standing in the driveway, and she told the responding officer that she had set the fire. She was charged with arson, a class B felony, and later entered a plea agreement wherein she pleaded guilty to criminal mischief, a class D felony.

Farmers refused to pay on the insurance policy, stating that, because Callie had intentionally burned down the house, the situation fell within the intentional loss exelusion of the insurance policy. Rick filed a claim for insurance proceeds against Farmers, and both parties moved for summary judgment. The trial court, finding no genuine issue of material fact, granted Farmers's motion for summary judgment.

Rick now appeals.

DISCUSSION AND DECISION

I. Standard of Review

When we review the grant or denial of a summary judgment motion, we apply the same standard as the trial court. Kroger Co. v. Plonski, 930 N.E.2d 1, 4-5 (Ind.2010). Summary judgment is appropriate only where the evidence shows that no genuine issue of material fact exists and the moving party is entitled to 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.

II. Insurance Claim

Under Indiana law, insurance contracts are governed by the same rule of construction as other contracts. Everhart v. Founders Ins. Co., 993 N.E.2d 1170, 1174 (Ind.Ct.App.2013). In interpreting a written contract, the court will neither extend the coverage provided nor rewrite policy language that is clear and unambiguous. Horace Mann Ins. Co. v. Richards, 696 N.E.2d 65, 67 (Ind.Ct.App.1998). A contract will be found to be ambiguous only if reasonable persons would differ as to the meaning of its terms. Everhart, 993 N.E.2d at 1174.

Rick argues that the insurance policy's exclusion for intentional loss is ambiguous, and that a reasonable person might interpret that clause to mean that Farmers will not cover loss that results from an intentional act that is intended to cause a loss that will result in property damage or the intent to cause a loss to recover from the insurance policy. Rick asserts that while Callie intended to damage their home, she was not motivated to do so because she wanted to recover the proceeds from the insurance policy. -

We reject this argument, and find that the policy exclusion for intentional loss was clear and unambiguous. Callie intentionally set fire to her home and took eriminal responsibility for her actions, placing the Deeters squarely within the policy exclusion.

Next, Rick argues that the innocent spouse rule does or should apply in this case. He asserts that, because he is an "innocent co-insured spouse," he should not be barred from recovering uhder the insurance policy. Appellants Br. p. 15. Rick cites American Economy Ins. Co. v. Liggett in support of this contention. In that case, we determined that, in the absence of any language in the policy that could "support an exclusion," we would fulfill an "innocent co-insured's" reasonable expectation to be indemnified for loss. 426 N.E.2d 136, 140 (Ind.Ct.App.1981). In that case, the husband, who set the fire, had died in the blaze, and there was no concern that he might benefit from his wrongdoing. The court noted that "a different rule may need to be fashioned where the guilty spouse survives." Id. at 144, ©

Similarly, 'in Fuston v. National Mut. Ins. Co., this Court determined that, where an insurance company had not provided an explicit exclusion for intentional loss by a co-insured, it was possible for the innocent spouse to recover. 440 N.E.2d 751, 754 (Ind.Ct.App.1982). The Fuston court highlighted the lack of an explicit exclusion in the insurance policy under consideration in that case: "In spite of the cases of some years standing concerning the possibility that one of the co-insureds may commit arson, National has done nothing to provide a plainly worded exclusion to cover that eventuality." Id. We did not definitively determine in that case whether an explicit provision that exeluded loss that results from an intentional act would bar an "innocent co-insured spouse" from recovery.

We now determine that when an insurance company has included an explicit exclusion in its policy to cover loss that results from an intentional act by a co-insured, we will respect the parties' right to contract and enforce that exclusion. Here, it is clear that Callie and Rick were both listed as an "insured" on the insurance policy, and the policy explicitly stated that it would not cover a loss that resulted from an intentional act of an insured: " 'We' do not pay for loss which results from an act committed by or at the direction of an 'insured' and with the intent to cause a loss." Appellant's App. p. 44. The undisputed designated evidence shows that Callie purposefully and intentionally burnt down her home, and Farmers was within the seope of its contractual rights to deny the Deeters' insurance claim in accordance with the intentional loss exclusion contained in the policy.

As a result, we affirm the trial court's grant of Farmers motion for summary judgment.

NAJAM, J., and CRONE, J., concur.


author: BARNES, Judge. CRONE, Judge,

text:
    William KLEPPER, on behalf of himself and all others similarly situated, Appellants-Plaintiffs/Cross Appellees, v. ACE AMERICAN INSURANCE COMPANY, Appellee-Defendant/Cross Appellant.
    No. 15A05-1212-CC-645.
    Court of Appeals of Indiana.
    Dec. 5, 2013.
    Rehearing Denied Feb. 19, 2014.

      George M. Plews, F. Ronalds Walker, Amy E. Romig, Plews Shadley Racher & Braun, LLP, Stan B. Hirsch, Indianapolis, IN, Robert J. Ewbank, Ewbank & Kramer, Lawrenceburg, IN, Attorneys for Appellants.
    E. Michael Ooley, Suzanne Abram, Boehl Stopher & Graves, LLP, New Albany, IN, Edward P. Gibbons, Christopher A. Wadley, Walker Wilcox Matousek, LLP, Chicago, IL, Attorneys for Appellee.
   OPINION

BARNES, Judge.

Case Summary

William Klepper, on behalf of himself and all others similarly situated ("the Class"), appeals the trial court's order adopting the special master's reports and entering partial final judgment in favor of ACE American Insurance, Inc., (CACE"). ACE cross-appeals, challenging the special master's resolution of some of the issues and the entry of partial final judgment. This case also involves Pernod Ricard USA, LLC, d/b/a Seagram Lawrenceburg Distillery ("Pernod"), who was insured by ACE and XL Insurance America ("XL"). We affirm.

Issues

The Class and ACE raise several issues. We address the following dispositive issues:

I. whether the special master properly concluded that ACE was not bound by a settlement agreement between the Class, Pernod, and XL because Pernod breached its obligations under the ACE policy; and
II. whether ACE is entitled to final judgment on all outstanding claims.

Facts

Pernod owned and operated a distillery in Lawrenceburg from January 2002 until June 2007. With the exception of a major fire in 1983, the distillery has been operating since 1847. During the distillation process, ethanol was released into the air, causing mold to grow on the exterior of nearby buildings. Klepper owns property near the distillery that was damaged by the emissions. Pernod was insured by XL from January 1, 2001, to January 1, 2003, and by ACE under a commercial general liability policy ("the Policy") from January 1, 2008, until January 1, 2004.

The Policy included a "legally obligated to pay" provision, which stated that ACE "will pay those sums that the insured becomes legally obligated to pay as damages because of 'bodily injury' or 'property damage' to which this insurance applies." App. p. 394. The Policy also included a "voluntary payment" provision, which stated, "No insured will, except at the insured's own cost, voluntarily make a payment, assume any obligation, or incur any expense, other than for first aid, without our consent." Id. at 404.

In 2005, Klepper brought a class action lawsuit against Pernod on behalf of similarly situated property owners. The see-ond amended complaint alleged nuisance, negligence, trespass, and illegal dumping. The costs of remediation varied from Pernod's estimate of approximately $115,000 to the Class's estimate of $20,500,000.

When Pernod tendered the claim to ACE in March 2005, "ACE mistakenly classified the claim as an underage drinking matter and closed its file." Id. at 668. In October 2007, ACE was advised that it was not an underage drinking claim and that XL had been providing Pernod with a defense. XL sought contribution from ACE for the costs of the defense it had been providing. ACE agreed to contribute 49% of Pernod's defense costs under a full reservation of rights. In a May 2008 letter, Pernod's deputy general counsel recognized and acknowledged that ACE was agreeing to provide Pernod with a defense. |

ACE reimbursed XL $40,857.44 for its portion of the previously-incurred defense costs. From the time ACE agreed to contribute to the defense until September 21, 2009, ACE paid an additional $44,232.60 to cover its share of the defense. On September 21, 2009, ACE received an email from Pernod's defense counsel explaining that ACE's billing system had unacceptably reduced the approved payment amounts. Defense counsel totaled the amounts owed by ACE for immediate full payment. On September 23, 2009, ACE issued payment for the full amount owed, $58,974.89. On September 25, 2009, ACE received an email from defense counsel's legal assistant thanking it for its "quick response" to the bills sent earlier in the week. Id. at 677. ACE later paid another $23,900.24 for its share of the defense. In total, ACE contributed $167,965.17 toward Pernod's defense.

The dispute was unsuccessfully mediated on August 19, 2008. In January 2009, the trial court granted summary judgment for Pernod on the illegal dumping claim. During settlement discussions, XL and Pernod asked ACE to contribute $1,000,000 toward a settlement agreement, but ACE refused and offered to contribute $250,000.

A second mediation was held on April 14, 2009. ACE attended the meditation but left before it was over. The Class, XL, and Pernod reached a settlement agreement. They agreed that judgment against Pernod would be entered in the amount of $5,200,000. Specially, Pernod would contribute $1,200,000 and XL would contribute $1,000,000 to a common fund for the immediate use and benefit of the Class. The remaining $3,000,000 was to be collected from ACE "to the extent the damages fall within the seope of ACE Commercial General Liability Policy...." Id. at 870. The settlement agreement provided that the litigation costs and expenses incurred by the Class "shall be paid from the Common Fund before any distributions to Class Members are made." Id. at 371.

On May 11, 2009, the Class filed a third amended complaint, which included a claim for declaratory judgment regarding coverage under the Policy for the damages sought by the Class. In August 2009, the Class agreed to release Pernod and XL from any claims and to dismiss its claims against Pernod with prejudice upon the receipt of the $2,200,000 payment from Pernod and XL. The release specifically provided:

Effective upon the Class's and its counsels' receipt of the $2,200,000.00 Payment from Pernod identified in Paragraph C above, the Class for themselves individually and for their respective members, release Pernod ... and XL ... from any claims, demands, rights of actions or liabilities, known or unknown, arising from Pernod's acts or omissions during the Claim Period that were asserted or could have been asserted in this cause, except as required to effectuate the settlement. The parties represent and agree that this Release is not intended to, and does not, eliminate or compromise any claims, demands, rights of action or liabilities between and among the Class against [ACE] or any other insurer. of Pernod (with the sole exception of XL) which may implicate any insurance policy or any other source of funds from which the Agreed Judgment or any part of it might be paid.

Id. at 775-76. The Class also agreed that, upon the receipt of the $2,200,000, it would not execute any unsatisfied portion of the agreed judgment against Pernod and XL. At some point, Pernod assigned its claims to the Class.

In September 2009, after a hearing to determine the fairness of the settlement agreement, the trial court approved it. The trial court also approved the payment of $733,333.33 in attorney fees and $106,909.87 in expenses incurred by the Class from the common fund.

On December 29, 2010, the Class filed a fourth amended complaint asking the trial court to declare that up to $3,000,000 in damages, attorney fees, and post-judgment interest may be collected from ACE under the Policy. The Class also made bad faith and unfair claims handling allegations against ACE.

Eventually, the case was assigned to a special master. In an August 6, 2012 letter to the special master, the parties identified the six issues to be presented to the special master and laid out the agreed upon briefing process, which included the parties simultaneously submitting opening briefs, statements of facts, and exhibits and then simultaneously submitting responses. On September 27, 2012, in his twenty-seven page report, the special master concluded that the "legally obligated to pay" and "voluntary payment" defenses were available to ACE because ACE provided a defense under a reservation of rights. The special master concluded, "ACE honored its obligation. As a matter of law Pernod breached its obligation by entering the agreed judgment without the consent of ACE and the Class, as its as-signee, will have to live with the consequences of Pernod's breach." Id. at 44. The special master also resolved the remaining five issues, some favorably to the Class and some favorably to ACE.

The Class filed a motion to correct error, which the special master granted in part as it related to a factual finding that did not affect his ultimate conclusion regarding ACE's lability under the Policy. The special master overruled the Class's second specification of error.

On October 9, 2012, ACE asked the trial court to adopt the special master's report and to enter final judgment in its favor. On December 17, 2012, the trial court entered an order adopting the special master's reports and declining to enter final judgment on all issues. The trial court directed "entry of only the holdings on the six issues referred to the Special Master as a partial final judgment pursuant to Trial Rule 54(B)" and stayed the remaining issues. Id. at 78. The Class and ACE now appeal.

Analysis

I. Settlement Agreement

The parties agree that they presented questions of law for the special master's resolution. They also agree that the special master's legal conclusions are subject to de novo review. Siwinski v. Town of Ogden Dunes, 949 N.E.2d 825, 828 (Ind.2011) ("When the issue on appeal is a pure question of law, we review the matter de novo.").

"Insurance policies are contracts that are subject to the same rules of construction as are other contracts." Sheehan Const. Co., Inc. v. Cont'l Cas. Co., 935 N.E.2d 160, 169 (Ind.2010), adhered to as modified on reh'g, 988 N.E.2d 685 (Ind.2010). "When the language of an insur ance contract is clear and unambiguous, we will assign to the language its plain and ordinary meaning." Id. An insurance policy that is unambiguous must be enforced according to its terms, even those terms that limit an insurer's liability, and we may not extend insurance coverage beyond that provided by the unambiguous language in the contract. Id. "Also, insurers have the right to limit their coverage of risks and, therefore, their liability by imposing exceptions, conditions, and exelusions." Id.

ACE relies on the "legally obligated to pay" and "voluntary payment" provisions to assert that it owes no coverage under . the Policy. The first provides that ACE "will pay those sums that the insured becomes legally obligated to pay as damages because of 'bodily injury' or (property damage' to which this insurance applies." App. p. 394. ACE argues that because, pursuant to the settlement agreement Pernod was released of liability, Pernod was not legally obligated to pay the $3,000,000 to the Class and, therefore, ACE cannot be liable to pay the unpaid balance either. See U.S. Fire Ins. Co. v. Lay, 577 F.2d 421, 423 (7th Cir.1978) (holding that, where settlement agreement released primary insurer of all lability in excess of $70,000, the obligation of the excess carrier to indemnify the primary insurer never arose because the primary insurer "was not and could not be liable for any amount in excess of $100,000. ...").

The second provision is part of the "Duties In The Event Of Occurrence, Offense, Claim or Suit" section of the Policy and provides, "No insured will, except at the insured's own cost, voluntarily make a payment, assume any obligation, or incur any expense, other than for first aid, without our consent." App. pp. 403, 404. ACE argues that, because Pernod settled the Class's claims without ACE's consent, the "voluntary payment" provision precludes coverage. ACE relies on the reasoning in American Family Mutual Insurance Co. v. C.M.A. Mortgage, Inc., 682 F.Supp.2d 879, 881 (S.D.Ind.2010).

On the other hand, the Class contends that, although other coverage defenses apply, ACE "may not (1) use the settlement as a tool to avoid coverage by the 'consent' or 'legally obligated to pay' defenses, or (2) challenge Pernod's liability on the damages fixed in the settlement." Appellant's Br. p. 25. The Class frames the issue as how should courts balance "(1) the need of a policyholder to protect itself where its insurer refuses to commit to indemnity and leaves it facing a large potential liability; and (2) the right of an insurer to protect itself against collusive or unreasonable settlement if it turns out to have indemnity coverage obligations?" Appellant's Reply Br. p. 11. The Class argues that this is not a question of applying the various terms of the policy, "but a fair balancing of the competing interests." Id. at 12. In support of its argument, the Class relies on Midwestern Indemnity Co. v. Laikin, 119 F.Supp.2d 831, 883 (S.D.Ind.2000), and Cincinnati Insurance Co. v. Young, 852 N.E2d 8 (Ind.Ct.App.2006), trans. denied.

A. Review of Relevan't Cases

1. Laikin

The Laikin court addressed whether an insurer, Midwestern, was bound by a consent judgment entered into by the insured, Laikin, and tort victims injured in a fire. Notably, all of the pleadings were premised on the assumption that Midwestern breached the contract by refusing to provide a defense and indemnity for the losses arising from the fire. Laikin, 119 F.Supp.2d at 835. In its analysis, the Lai-kin court acknowledged:

An insurer is normally treated as being in privity with its insured for purposes of collateral estoppel or issue preclusion. "The doctrine of collateral estoppel applies to insurance contracts and an insurer is ordinarily bound by the result of litigation to which its insured is a party, so long as the insurer had notice and the opportunity to control the proceedings."

Id. at 836 (quoting Liberty Mut. Ins. Co. v. Metzler, 586 N.E.2d 897, 900 (Ind.Ct.App.1992), trans. denied). Laikin observed that collateral estoppel may not apply to issues affecting coverage where an insurer either defends the insured under a reservation of rights or files a declaratory judgment action. Jd. (citing Metzler, 586 N.E.2d at 901); see also Frankenmuth Mutual Ins. Co. v. Williams, 690 NE.2d 675, 679 (Ind.1997) (citing Metzler for the proposition that an insurer may refuse to defend or refuse to clarify its obligation by means of a declaratory judgment action but does so at its peril). Laikin considered Metzler, Frankenmuth, and State Farm Mutual Auto. Insurance Co. v. Glasgow, 478 N.E.2d 918, 923 (Ind.Ct.App.1985), as implying:

an insurer who files a declaratory judgment action may retain the ability to litigate those issues that affect its coverage. None of those cases suggests, however, that filing a declaratory judgment action leaves the insurer free to litigate (or relitigate) the issues of its insured's liability or the amount of damages.

Laikin, 119 F.Supp.2d at 837.

The Laikin court concluded that these cases were generally consistent with the Restatement (Second) of Judgments and decisions by the Supreme Court of Minnesota and the Supreme Court of Arizona. Laikin summarized those courts as holding:

that where an insurer has defended under a reservation of rights or has filed a declaratory judgment action, a consent judgment between an insured and a tort plaintiff will bind the insurer as to issues not related to coverage, at least so long as the insured has acted reasonably and in good faith.

Id. at 838. The Laikin court predicted that:

Indiana courts would adopt an approach to this case in which the consent judgment with a covenant not to execute would bind the insurer on issues of its insured's liability and the extent of the injured parties' damages, so long as (1) the coverage is eventually shown, and so long as the consent judgment (2) is not the product of bad faith or collusion and (3) falls somewhere within a broad range of reasonable resolutions of the underlying dispute.

Id. at 842. The court declined to predict precisely which approach Indiana would take regarding the burdens of production and proof on the issues of bad faith, collusion, and reasonableness because it found as a matter of law that the terms of the consent judgment were not unreasonable and could not reasonably permit an inference of collusion or bad faith. Id. at 850.

The Laikin court also addressed Midwestern's "legally obligated to pay" defense, which was based on policy language that Midwestern would "pay those sums that the insured becomes legally obligated to pay as damages because of 'bodily injury' or 'property damage' to which this insurance applies." Id. at 851. Midwest ern asserted that it had no duty to pay the consent judgment because the agreement did not impose any legal obligation on the insured to satisfy the $1,600,000 judgment.

In rejecting this argument, the Laikin court relied on our decision in American Family Mutual Inswrance Co. v. Kivela, 408 N.E.2d 805 (Ind.Ct.App.1980). In Kivelo, we addressed a similar argument after an insurer refused to assume "any responsibility" under the insurance contract. Kivela, 408 N.E.2d at 806. We held that "an insurer may not hide behind the 'legally obligated to pay' language of the policy after it abandons its insured and the insured settles the claim against him by agreement. . . ." Id. at 813.

The Laikin court did not believe our supreme court would treat a coverage lawsuit as a reason to distinguish Kivela because that "would, in effect, enable an insurer, by breaching its contract, to lock its insured and injured victims into years of expensive and unwanted litigation." Laikin, 119 F.Supp.2d at 852. The Laikin court reasoned:

Under Midwestern's approach, an insured who has been forced by his insurer to pay for his own defense and to face huge personal liability would be in a no-win, or perhaps a "no-settlement," situation. If the covenant not to execute lets the insurer off the hook completely, the insured and the injured parties would not be able to allocate between themselves the risks created by uncertainty over insurance coverage. The injured parties would have no incentive to settle their tort claims until after the coverage issue was resolved, perhaps years later.

Id. at 854 (emphasis added). The court concluded that Midwestern was "precluded from relying on the 'legally obligated to pay' language in the insurance policy." Id.

2. Young

In Young, Tri-Etch was insured by Scottsdale and Cincinnati under three separate polices. When Tri-Etch was sued by the estate of an injured party, Seotts-dale elected to defend Tri-Etch while Cincinnati denied coverage and filed a declaratory judgment action in federal court. Eventually, Tri-Etch and the estate reached a settlement agreement, in which Scottsdale agreed, among other things, to pay the estate $1,000,000 on behalf of TriEtch in exchange for a release of any further claims, and the estate agreed not execute the remainder of the judgment against any of Tri-Eteh's assets except the coverage under the Cincinnati policy. Cincinnati moved to intervene for the purpose of appealing in its own name only and reaffirmed that it would not provide coverage, and the trial court permitted Cincinnati to intervene.

On appeal, the estate challenged Cinein-nati's intervention. In deciding the trial court abused its discretion by allowing Cincinnati to intervene, we adopted Laikin as it relates to an insurer's ability to reliti-gate an insured's liability and damages where an a declaratory judgment action has been filed on the issue of coverage. Young, 852 N.E.2d at 14. We concluded, "because Cincinnati contested its coverage at the same time it filed its motion to intervene, its interest in the subject matter for purpose of Indiana Trial Rule 24(A)(2) was contingent and not direct." Id. at 15.

We found "that the manner in which the lawsuit between Tri-Eteh, Scottsdale, and the Estate was resolved does not affect our preceding analysis." Id. at 16. We reasoned:

If, as here, the insureds are offered a settlement that effectively relieves them of any personal liability, at a time when their insurance coverage is in doubt, surely it cannot be said that it is not in their best interest to accept the offer. Nor, do we think, can the insurer who is disputing coverage compel the insureds to forego a settlement which is in their best interest. See [Laikin], 119 F.Supp.2d at 839. However, we do recognize that there is a risk that the resulting settlement was not the product of reasonableness or good faith. Nevertheless, the proper place to raise these purported issues of reasonableness and good faith is during an action to determine whether the claim is covered by the policy or during an action to enforce the judgment.

Id. at 16-17.

3. CMA

In CMA, CMA was sued for purported violations of the Fair Credit Reporting Act. CMA sought a defense and coverage from its insurer, American Family, who denied coverage but provided CMA with a defense under a reservation of rights and filed a declaratory judgment action. When settlement negotiations began, American Family informed CMA that it would regard any settlement to be a violation of CMA's obligation under the provisions of the policies that prohibited an insured from making a voluntary payment, assuming any obligation, or incurring any costs without the insurer's consent. Nevertheless, CMA agreed to allow a stipulated judgment to be entered against it in the amount of $2,990,000 with the express proviso that the judgment could only be satisfied by the insurance proceeds of the American Family policies.

In determining the effect of the uncon-sented-to settlement on American Family's obligation to indemnify, the court began its analysis with Glasgow, Metzler, Frankenmuth, Laikin, and Young. CMA also considered Morris v. Economy Fire & Casualty Co., 848 N.E.2d 663, 666-67 (Ind.2006), in which our supreme court ruled that an insurance contract did not allow an insured to impose a prerequisite upon the insurer before complying with agreed duties. The Morris court concluded that the Morrises breached the insurance contract as a matter of law when they refused to provide an examination under oath, as the policy required, until the insurer fulfilled additional conditions prescribed by the Morrises. Morris, 848 N.E.2d at 666-67. CMA also considered State Farm Fire & Casualty Co. v. T.B., 762 N.E.2d 1227, 1231 (Ind.2002), in which our supreme court, relying on Metzler and Glasgow, observed:

An insurer may avoid the effects of collateral estoppel by: (1) defending the insured under a reservation of rights in the underlying tort action, or (2) filing a declaratory judgment action for a judicial determination of its obligations under the policy. Either of these actions will preserve an insurer's right to later challenge a determination made in the prior action.

T.B., 762 N.E.2d at 1231 (citation omitted).

The CMA court determined that Young did not apply and concluded that our supreme court "would not permit an insured unfettered discretion to enter into a settlement that would bind the insurer without securing the prior consent of the insurer." CMA, 682 F.Supp.2d at 886. CMA held, "American Family is not bound by the settlement agreement and consent decree entered into by CMA ..., nor is American Family estopped or otherwise precluded from challenging CMA's lability or the amount of any damages payable to Plaintiffs. ..." Id. at 890.

CMA explained that American's Family's position for denying coverage created a conflict of interest requiring it to reimburse the insured's independent counsel as part of its duty to defend, which it did. Id. at 890-91. Further, by providing a defense and seeking declaratory judgment, American Family "doubled down" on its obligation to act in good faith, "protecting American Family against any collateral exposure on the issue of coverage it might otherwise have - faced from a judgment. ..." Id. at 891. CMA observed that "American Family had the right to reserve its defenses to coverage while providing CMA with a defense and not be found in breach of its contractual obligations in its policies." Id. The court concluded, "[the policy language unambiguously forecloses CMA's freedom to enter into such a settlement, and American Family's actions neither breached the contract or relieved CMA of its own contractual obligations." Id.

CMA restated the following criticism of the out-of-state cases Laikin relied on: "'the reasoning of these cases is flawed because they permit an insured to breach his duties under the policy without losing coverage, even though there has not been a breach of the contract by the insurance company. Therefore, we decline to follow them.'" Id. at 892 (quoting Kelly v. Iowa Mutual Ins. Co., 620 N.W.2d 637, 642 (Iowa 2000)). The CMA court went on to distinguish Laikin in part because of the premise in Laikin that a judgment would be viewed from the standpoint of the insured at the time of the agreement because the insurer breached its contract and left the insured hanging. The CMA court stated:

[tlo the extent that Judge Hamilton's conclusion reflects the fact that the insurer did not cover the costs of the underlying defense, we have no quarrel; but if his conclusion is based on the assumption that the insurer's providing a defense while also seeking a declaratory judgment would be a breach of contract, we respectfully disagree, as does the [Indiana] Supreme Court, as we understand its rulings.

Id. at 898.

CMA also observed that Laikin was decided before our supreme court issued T.B., Morris, and Dreaded, Inc. v. St. Paul Guardian Insurance, 904 N.E.2d 1267 (Ind.2009), in which our supreme court "reiterated its view first explicated in Morris, that prejudice need not be shown when an insurer seeks to enforce policy provisions that are threshold requirements, such as the obligation to give notice, supply records and documentation and submit to an examination under oath." Id. (citing Dreaded, 904 N.E.2d at 1271-72). CMA speculated that, had Judge Hamilton had the benefit of these decisions, he might have reached a different conclusion. Id.

According to CMA, because CMA assumed the obligations of the consent judgment in violation of the insurance contract, American Family was "relieved of any obligation to pay or satisfy, in whole or in part, the judgment entered against CMA . or to satisfy any settlement between CMA and Wanek entered into without American Family's consent." Id. at 894.

B. Resolution

In determining whether to follow the rationale of Laikin or CMA, we begin with the fact that Laikin was premised on the assumption that the insurer had breached the insurance contract. See Laikin, 119 F.Supp.2d at 835. The insurer's breach and abandonment of the insured was clearly significant to the Laikin court's analysis of whether an insurer. is collaterally es-topped from relitigating the issues of liability and damages. Unlike in Loikin, there is no presumption here that ACE breached the insurance contract. Rather, the parties vehemently dispute whether ACE breached the insurance contract by abandoning Pernod.

We also take issue with the Clasg's assertion that Laikin "establishes that an insurer, even one which has defended under a reservation of rights or filed declaratory judgment action, is bound by a reasonable, non-collusive settlement." Appellant's Br. p. 18. This assessment ignores the requirement that, for a settlement agreement to be binding on an insurer, coverage must be shown. Id. at 838, 842, Thus, even under Laikin, a determination of coverage is required in order for an insurer to be bound by a settlement agreement's assessment of liability and damages.

As we see it, the resolution of the coverage question includes the consideration of ACE's and Pernod's rights, obligations, and breaches under the terms of the Policy. We believe that such an approach is in keeping with our supreme court's decisions in T.B., which explains that an insurer can preserve its rights by defending the insured under a reservation of rights, and Morris, which concluded that the insureds breached their policy by refusing to comply with the policy conditions. This approach is also consistent with the longstanding principle that "[al party first guilty of a material breach of contract may not maintain an action against the other party or seek to enforce the contract against the other party should that party subsequently breach the contract." Illiana Surgery & Med. Ctr., LLC, v. STG Funding, Inc., 824 N.E.2d 388, 403 (Ind.Ct.App.2005).

Accordingly, we begin with ACE's duty to defend. The Class contends that ACE abandoned Pernod, at least in part, by not negotiating a settlement in good faith and not providing a defense. We disagree. As for the settlement negotiations, during the 2009 negotiations, Pernod and XL offered to contribute $1,000,000 each and urged ACE to contribute $1,000,000 toward a $3,000,000 settlement offer. ACE refused, agreeing only to contribute only $250,000. ACE took the position that its indemnity obligations were limited in large part by the $10,000 per claim deductible. ACE also relied on the ongoing nature of the emissions compared to its limited coverage only from January 2008 to January 2004. Finally, ACE did not believe that there had been an "occurrence" as defined by the Policy. Without more, we are not convinced ACE's refusal to contribute more toward the settlement agreement constituted abandonment.

As for the defense, the Class focuses on ACE's initial wrongful closing of the case and defense counsel's difficulty getting paid by ACE. The Class asserts that Pernod was prejudiced by ACE's conduct because it could not confidently rely on ACE to provide a defense. Although ACE did initially wrongfully close the case and failed to make timely payments to defense counsel, as ACE also points out, Pernod was always represented by counsel even if XL was initially paying for it and, at the end of the day, ACE ultimately contributed $167,965.17 toward Pernod's defense. Under these cireumstances, we are not convinced that ACE breached the terms of the Policy or otherwise relieved Pernod of its obligations under the Policy by abandoning Pernod.

Accordingly, ACE may rely on the Policy's "voluntary payment" and "legally obligated to pay" provisions, and those provisions preclude coverage under the Policy. To hold otherwise, would, effectively require us to write the "voluntary payment" and "legally obligated to pay" provisions out of the Policy, which we cannot do. See Keckler v. Meridian Sec. Ins. Co., 967 N.E.2d 18, 28 (Ind.Ct.App.2012) ("The power to interpret insurance policies does not extend to changing their terms."), trans. denied. We recognize and understand the dissent's concerns. We simply believe that the rationale in CMA, the fact that ACE did not abandon Pernod or breach the Policy, and the extended analysis we have provided guide us to this result. '

IL Entry of Final Judgment

ACE argues that, if we affirm the ruling that no coverage is owed, "it necessarily disposes of all of Klepper's claims." Appellee's Br. p. 55. Accordingly, ACE requests that we remand for the entry of final judgment in its favor on all claims. In response, the Class contends that multiple claims still exist, including whether ACE is liable to Pernod for any of the $1,200,000 that Pernod paid to settle case and whether its bad faith claim is actionable even if there is no coverage.

As for the recovery of the $1,200,000 that Pernod contributed toward the settlement, the Class refers to language from its fourth amended complaint to suggest that it: .

sought redress for all claims or cases of action that: "exist or may exist relating to or arising from [ACE's] handling and adjustment of the insurance claim Pernod submitted to ACE for defense and indemnity ... including but not limited to claims for bad faith and for the assertion of unreasonable and unfounded defenses to Pernod's coverage claim."

Appellant’s Reply Br. p. 48.

Although the complaint does contain that language, it is in an introductory paragraph quoting the assignment of claims from Pernod to the Class. In Count I, labeled "Insurance Coverage," the Class asks the trial court to declare that, "onee applicable deductibles are met, up to $3 million in damages awarded against Pernod and in favor of the [sic] Klepper and the other Class Members, plus the attorney fees award to the Class and postjudgment interest, may be collected from ACE under the Policy's terms." App. p. 811. The complaint does not specifically reference the recovery of the $1,200,000 payment by Pernod. Further, given our conclusion that the "voluntary payment" and "legally obligated to pay" provisions preclude coverage under the Policy, it is not clear what legal basis would support the recovery of the $1,200,000 payment by Pernod. Accordingly, the Class failed to establish that the recovery of the $1,200,000 paid by Pernod is recoverable from ACE.

As for the bad faith claim, the Class asserts that, regardless of coverage, an insurer may breach the covenant of good faith in other ways than the wrongful denial of coverage, inchiding, for example, its handling of the claim. See HemoCleanse, Inc. v. Philadelphia Indem. Ins. Co., 831 N.E.2d 259, 264 n. 2 (Ind.Ct.App.2005) {noting that "an insurer may exhibit bad faith in, for example, its handling of the claim such that even if it engages in a good faith dispute over coverage it may still breach the covenant of good faith and fair dealing."), trans. denied. Indeed, in Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 976 (Ind.2005), our supreme court reaffirmed "that a good faith dispute concerning insurance coverage cannot provide the basis for a claim in tort that the insurer breached its duty to deal in good faith with its insured" and reiterated that "an insurer's duty to deal in good faith with its insured encompasses more than a bad faith coverage claim." The court acknowledged:

"The obligation of good faith and fair dealing with respect to the discharge of the insurer's contractual obligation includes the obligation to refrain from (1) making an unfounded refusal to pay policy proceeds; (2) causing an unfounded delay in making payment; (3) deceiving the insured; and (4) exercising any unfair advantage to pressure an insured into a settlement of his claim."

Magwerks, 829 N.E2d at 976 (quoting Erie Ins. Co. v. Hickman, 622 N.E.2d 515, 519 (Ind.1993)).

In Magwerks, the insured's bad faith claim was based on the insurer's "manner of handling the claim." Id. (internal quotation omitted). However, because neither party provided guidance on the issue, the Magwerks court declined to expand the extent of an insurer's duty beyond that expressed in Hickman. Id.

The court then determined whether, apart from the insurer's denial of the insured's claim based on a good faith dispute over coverage, the insurer's conduct leading up to and including the issuance of the denial letter rose to the level of bad faith. The court concluded that, because before the insured filed its complaint the insurer essentially acknowledged that a collapse had occurred, which was arguably a covered loss, there was evidence to support the jury's conclusion that the insurer's conduct "amounted to 'an unfounded refusal to pay policy proceeds." Id. at 977 (quoting Hickman, 622 N.E.2d at 519). Mag-werks ultimately held "that a good faith dispute concerning insurance coverage does not automatically preclude a punitive damages claim for bad faith when coverage is denied." Id. at 978.

This holding is consistent with the notion that "an insured who believes that an insurance claim has been wrongly denied may have available two distinct legal theories, one in contract and one in tort, each with separate, although often overlapping, elements, defenses and recoveries." Hickman, 622 N.E.2d at 520. Given the two distinct theories upon which the Class seeks to recover and their separate elements and defenses, we cannot conclude at this stage of the proceedings that the resolution of the contract dispute necessarily disposes of the tort-based bad faith claim. Thus, the entry of final judgment on the Class's bad faith claim would be premature.

Conclusion

Because the "voluntary payment" and "legally obligated to pay" provisions preclude coverage, the trial court properly entered partial judgment in favor of ACE on this issue. Regarding the entry of final judgment on all claims, because of the distinct legal theories at play, the entry of final judgment in favor of ACE on the Class's bad faith claim would be premature at the this stage of the proceedings. We affirm.

Affirmed.

PYLE, J., concurs.

CRONE, J., concurs in part and dissents in part.

CRONE, Judge,

concurring in part and dissenting in part.

I agree with the majority's determination that ACE did not abandon Pernod or breach the Policy. I also agree that entry of final judgment on the Class's bad-faith claim would be premature. I respectfully disagree, however, with the majority's determination that ACE may avoid the settlement agreement based on the Policy's "voluntary payment" and "legally obligated to pay" provisions. An insurer who defends an insured under a reservation of rights should not be able to use those policy provisions as both a shield and a sword.

Most relationships between insurers and insureds involve a substantial imbalance in sophistication, financial resources, and settlement leverage. Consequently, few insureds are in a position to effectuate a settlement without contribution from their insurer. When an insurer reserves its rights under a policy, it takes a position adversarial to its insured. Although the insurer may be funding the defense, the insured still faces the very real possibility of economic ruin. As such, the insured has every incentive to minimize its exposure, and unilaterally negotiating a settlement involving policy proceeds and a release and/or a covenant not to execute may be the least expensive and most expeditious means of doing so. If that settlement is reasonable and in good faith, then the insurer will probably end up no worse off than if it had gone to trial and perhaps much better off than if it had refused to defend and risked a bad-faith claim from its insured. And when all is said and done, the insurer can still dispute reasonableness, collusiveness, and coverage. To hold otherwise would simply allow the insurer to avoid the coverage that was contracted and paid for.

Courts should not reward insurers for putting their insureds in a perilous position, nor should they penalize insureds for trying to protect themselves. For that reason, I believe that ACE should not be able to avoid Pernod's settlement agreement based on the "voluntary payment" and "legally obligated to pay" provisions of the Policy. I express no opinion on the issues not addressed by the majority.

      . The Class initially alleged damages at over $100,000,000.

      . Although the Class asserts in its reply brief that ACE does not recognize the sarcasm in this statement, the Class does not direct us to any factual support indicating that the comment was intended to be sarcastic.

      . The covenant not to execute also specified that it was not intended to eliminate or compromise any claims, demands, rights of action, or liabilities between the Class and ACE.

      . The parties do not reference Indiana Trial Rule 53, which pertains to special masters.

      . See Miller v. Shugart, 316 N.W.2d 729 (Minn.1982); United Servs. Auto. Ass'n v. Morris, 154 Ariz. 113, 119, 741 P.2d 246, 252 (1987).

      . For example, in determining how Indiana courts would approach this type of case, the Laikin court described "an insurer who has breached its contract," "the abandoned insured" who "is likely to be stuck for years in expensive litigation as a result of the insurer's breach of the insurance contract[,]" and "Indiana courts' recognition of the needs of the insured and injured plaintiffs when the insured has been abandoned by its insurer." Laikin, 119 F.Supp.2d at 842. The court stated, "A more direct approach to that issue would suffice to protect the breaching insurer from outrageous efforts to overreach, while still encouraging and allowing settlement of disputes between the abandoned insured and injured plaintiffs." Id.

      . The Class focuses on abandonment and only refers to ACE breaching the insurance contract at the end of the discussion of this issue in its reply brief. See Appellant's Reply Br. p. 24 ("ACE was in breach of its duty to defend since it had not paid the bills despite reminders.").

      . There is no evidence that the XL policy contained the same $10,000 deductible.

      . The "voluntary payment" provision unambiguously foreclosed Pernod's freedom to enter into the settlement agreement, and doing so relieved ACE of any obligation to pay or satisfy the unpaid portion of the settlement agreement. -See CMA, 682 F.Supp.2d at 891, 894; see also Travelers Ins. Companies v. Maplehurst Farms, Inc., 953 N.E.2d 1153, 1161 (Ind.Ct.App.2011) ("[lt is apparent that where an insured enters into a settlement agreement without the insurer's consent in violation of a voluntary payment provision, that obligation cannot be recovered from the insurer, and prejudice is irrelevant."), trans. denied. Further, as we have already determined, ACE did not abandon Pernod. Thus, the rationale in Laikin and Kivela for prohibiting an insurer from relying on a "legally obligated to pay" provision does not aplﬁly here. |

      . In describing the multiple claims, that still exist, the Class also contends, "when the Special Master found the policy defenses of 'legally obligated to pay' and 'consent' are available to ACE and that ACE is not therefore bound by the settlement between the Class and Pernod, it is not clear that the holding defeats all claims by the Class." Appellant's Reply Br. p. 49. It is not clear, however, what legal theory the Class is asserting as. an additional basis for recovering against ACE. Without more, we decline to further address this assertion.

      . Likewise, on appeal, the Class has not developed an argument for expanding the scope of an insurer's duty to deal in good faith beyond that described in Hickman and argues only that outstanding discovery that was never completed.

      . It bears mentioning that Pernod, like the insured in Laikin, paid a significant portion of the agreed judgment and therefore had "skin in the game," as the CMA court called it. 682 F.Supp.2d at 893.