author: RILEY, Judge.

text:
    INDIANA RESTORATIVE DENTISTRY, P.C., Appellant-Plaintiff, v. The LAVEN INSURANCE AGENCY, INC., and ProAssurance Indemnity Company, Inc. f/k/a the Medical Assurance Company, Inc., Appellees-Defendants.
    No. 49A05-1212-PL-627.
    Court of Appeals of Indiana.
    Dec. 17, 2013.
    Rehearing Denied Feb. 12, 2014.

      George M. Plews, Todd G. Relue, Plews Shadley Racher & Braun, LLP, Indianapolis, IN, Attorneys for Appellant.
    David C. Jensen, John P. Twohy, Eich-horn & Eichhorn, LLP, Hammond, IN, Brett T. Clayton, Eichhorn & Eichhorn, LLP, Indianapolis, IN, Philip E. Kalama-ros, Hunt Suedhoff Kalamaros, LLP, St. Joseph, MI, Attorneys for Appellees.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Plaintiff, Indiana Restorative Dentistry, P.C. (IRD), appeals the trial court's denial of its motion to correct error following the trial court's summary judgment in favor of Appellee-Defendant, ProAssurance Indemnity Co., Inc. f/k/a The Medical Assurance Co., Inc. (ProAssu-rance).

We reverse and remand.

ISSUES

IRD raises three issues on appeal, which we restate as:

(1) Whether Appellee-Defendant, Laven Insurance Agency, Inc. (Laven), was under a special duty to advise IRD about its insurance coverage where Laven and IRD had a long-term relationship;
(2) Whether Laven had a duty to procure full coverage insurance based on its past dealings with IRD; and
(3) Whether ProAssurance is vicariously liable for Laven's actions.

FACTS AND PROCEDURAL HISTORY

On October 25, 2009, a fire destroyed the Carmel offices of IRD. The office contents were covered under an insurance policy issued by ProAssurance and obtained through Laven. ProAssurance paid the policy limits for the loss. However, IRD now asserts that it was underinsured due to Laven's failure to provide insurance advice and to secure additional insurance coverage.

Dr. Stephen Lehman (Dr. Lehman), a licensed prosthodontist, opened his Carmel office in 1978. Dr. Lehman's spouse, Maureen Lehman (Maureen), is the office manager and has handled the practice's insurance requirements for over twenty years. Dr. Lehman was referred to Laven to secure Indiana Dental Association (IDA) endorsed insurance coverage for his small business. He purchased the coverage recommended © by Laven, which sold ProAssurance's products. The relationship between Laven and ProAssurance is governed -by an Agency Agreement.

On an annual basis, and as part of the insurance renewal process, Laven would mail IRD a questionnaire with an existing Declarations Page, outlining the current year's policy limits. The questionnaire sought to determine any changes in IRD's practice which might affect its insurance. Maureen would complete the questionnaire and once completed and reviewed, she would mail or fax the questionnaire to Laven. Additionally, in 1999, 2008, and 2009, Maureen annotated the questionnaire with the request to increase the insurance coverage with a specific amount. Laven would process the renewal and send IRD an updated coverage summary for the forthcoming year's insurance policy, with a cover letter stressing the importance of reviewing the coverage summary to confirm that the proposed coverage met IRD's expectations. The coverage summary would list the various coverage limits to be expressed in the renewed insurance policy and the premiums due. Maureen would use the updated coverage summary as a receipt to note the premium due, and to document the number of the cheek used to pay the premiums.

On September 17, 1999, Maureen submitted a renewal questionnaire to Laven and requested an increase of $15,000 in IRD's office contents coverage. Laven failed to communicate this request for increased insurance coverage to ProAssu-rance. Six months later, Laven sent IRD a notice that it had "overlooked a notation on [IRD's] renewal questionnaire" to add the requested coverage increase. (Appellant's App. p. 718).

In October of 2008, as was the typical practice in prior years, Laven forwarded a cover letter, renewal questionnaire, and a summary of IRD's current year coverage to Maureen. At that time, IRD's office contents coverage had a limit of $204,371. On October 8, 2008, Maureen returned the questionnaire, requesting an increase in office contents coverage to $350,000, an increase in professional liability coverage, and the addition of an additional insured in connection with lab machinery that IRD was leasing. On October 28, 2008, Laven sent IRD a cover letter, the coverage summary, and an invoice for the policy renewal, commencing on November 27, 2008. As with Laven's cover letters to IRD in past years, its cover letter included the cautionary language informing IRD to carefully review the proposed insurance coverage:

Please take a moment to look these policies over and be sure that they have been issued to your liking. 1 have enclosed a summary of all your policies. Please keep this with your copies of the policies. Any changes from your renewal questionnaire may not nee-essarily be included.

{Appellant's App. p. 298) (emphasis in original). The summary enclosed with the October 28, 2008 letter listed each of the coverages under the ProAssurance policy, including office contents coverage in the amount of $204,371.

In August 2009, IRD received the annual questionnaire, as well as the summary of insurance coverage for the preceding poli-ey period that reflected office contents coverage of $204,371. Without notifying La-ven of the error in insurance coverage, Maureen completed the questionnaire and requested another increase in office contents coverage in the amount of $45,000. Upon receipt of the questionnaire, Laven directed ProAssurance to increase IRD's office contents coverage, beginning with the new policy period on November 27, 2009.

Throughout the policy period, Laven sent a series of risk review newsletters to current and potential customers, including IRD, describing its insurance expertise and skills. One of the newsletters received by IRD in 2010 included the following representation:

Risk Analysis Services
A professional insurance agent is trained in risk analysis, which involves evaluating risk exposure to measure the potential loss to your business. With your specific business and property in mind, your agent can recommend appropriate insurance coverage and perhaps reveal risk exposures you may have overlooked. Insurance professionals are knowledgeable about the insurance options available in your state. With this expertise, your agent can suggest options from a vast menu of risk-management products and ensure that you are in compliance with all mandatory regulations. Your insurance professional can also amend a basic policy by adding endorsements, which alter or expand the coverage provided under a basic policy. The insurance program developed by your agent will be tailored to your business's unique needs.

(Appellant's App. p. 515).

A fire destroyed IRD's Carmel office on October 26, 2009. The office's contents loss due to the fire amounted to $704,894.34. Because the office contents coverage insurance had a policy limit of $204,871, the fire resulted in an IRD shortfall of more than $500,000.

On October 22, 2010, IRD filed its Complaint against ProAssurance and Laven to recover the uninsured losses resulting from the fire. On April 16, 2012, each party filed a separate motion for summary judgment, along with a designation of evidence and a memorandum of law. On July 16, 2012, the trial court conducted a hearing on the motions. Thereafter, on July 31, 2012, the trial court granted summary judgment in favor of ProAssurance and against IRD, as well as denying Laven's and IRD's respective motions for summary judgment. In its judgment, the trial court concluded in pertinent part:

The designated evidence shows that [Laven] was not under a special duty to advise [IRD] about its insurance coverage. The fact that Laven and IRD had a long-term relationship does not alone provide a sufficient basis for the imposition of a special duty. The determination of whether a special relationship exists is based on the breadth of the parties' relationships, and not merely length of time. The material facts reveal that the relationship between Laven and IRD was an arms-length relationship typical of that which exists between an insurance agency and an insured. More specifically, the facts show, inter alia, 1) that Laven's discretion to act on IRD's behalf in obtaining insurance renewals was limited to the coverages and amounts reflected on forms completed by IRD in the insurance renewal process; 2) Laven did not provide insurance counseling, and the type of insurance at issue, business personal property insurance, is a type of insurance common to nearly all small businesses; 3) Laven did not hold itself out as being an insurance agent with skills over and above other insurance agents; and 4) Laven's compensation was limited to the premiums paid on insurance, and it was never compensated for expert advice which it did not provide.
Likewise, there is no factual basis which could support a finding that La-ven was under a contractual duty to provide insurance that would have fully covered the fire losses sustained by IRD in 2010. Indiana courts consider questions of an insurance agent's special duty through a tort analysis and not based upon contract law. Moreover, the essential terms of a contact for insurance are: 1) the subject of the insurance; 2) the risk or peril insured against; 3) the amount of coverage; 4) the limit and duration of the risk; and 5) the amount of the premium being paid. A contract of insurance is not binding if negotiations are incomplete in any material particular, or assent of either party is lacking. Here, there is no non-speculative basis by which the essential terms of the implied contract suggested by IRD could be supplied, and there is no evidence that Laven or ProAssurance assented to such an implied contract through their actions.
There is no basis to hold ProAssu-rance vicariously liable for the alleged acts or omissions of Laven. IRD maintains that Laven was a captive agent of ProAssurance. The undisputed material evidence shows that Laven was not a captive agent of ProAssurance. Insurance companies, such as ProAssurance, may be held vicariously liable for the actions of an insurance producer where the parties are engaged in an arms-length business relationship. The designated evidence also shows that Laven and ProAssurance structured their relationship as an independent contractor relationship, and that Laven maintained independent authority as to the manner of operating its insurance agency. There is no evidence that in its dealings with IRD, Laven did not give the appearance or make representations that it was acting under the control of ProAs-surance.

(Appellant's App. pp. 13-15).

On August 27, 2012, IRD filed a motion to correct error. On November 14, 2012, after conducting a hearing, the trial court summarily denied IRD's motion. In the same motion, the trial court also denied IRD's request to consider newly discovered evidence. Both IRD and Laven requested certification of their respective motions for summary judgment for interlocutory appeal, which was denied by this court on February 1, 20183.

IRD now appeals the trial court's summary judgment in favor of ProAssurance. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

Because IRD's motion to correct error was based on the trial court's summary judgment, we review this appeal using the standard applicable to summary judgment rulings. See Hair v. Schellenberger, 966 N.E.2d 693, 699 n. 3 (Ind.Ct.App.2012), trans. denied. Summary judgment is appropriate only when there are no genuine issues of material fact and . the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C). , A fact is material if its resolution would affect the outcome of the case, and an issue is genuine if a trier of fact is required to resolve the parties' differing accounts of the truth - .., or if the undisputed facts support conflicting reasonable inferences. Williams v. Tharp, 914 N.E.2d 756, 761 (Ind.2009). In reviewing a trial court's ruling on summary judgment, this court stands in the shoes of the trial court, applying the same standards in deciding whether to affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley, 891 N.E.2d 604, 607 (Ind.Ct.App.2008), trans. denied. Thus, on appeal, we must determine whether there is a genuine issue of material fact and whether the trial court has correctly applied the law. Id. at 607-08. In doing so, we consider all of the designated evidence in the light most favorable to the non-moving party. Id. at 608. The party appealing summary judgment has the burden of persuading this court that the trial court's ruling was improper. Id. When the defendant is the moving party, the defendant must show that the undisputed facts negate at least one element of the plaintiff's cause of action or that the defendant has a factually unchallenged affirmative defense that bars the plaintiffs' claim. Id. Accordingly, the grant of summary judgment must be reversed if the record discloses an incorrect application of the law to the facts. Id.

Although all parties filed a motion for summary judgment before the trial court, only the appeal to the trial court's grant of ProAssurance's motion is properly before us. In its motion, ProAssurance raised the following issues: (1) no issue of material fact exists to sufficiently establish a special relationship between IRD and La-ven to create a heightened duty to advise as to coverage amounts; and (2) no issue of material fact exists to establish Laven's contractual duty to obtain coverage that would have fully covered IRD's fire losses. Therefore, ProAssurance concludes that, as IRD's claims against it are purely derivative of IRD's claims against Laven, ProAssurance cannot be held vicariously liable.

We note that, in the present case, the trial court entered findings of fact and conclusions of law in support of its judgment. While special findings are not required in summary judgment proceedings and are not binding on appeal, such findings offer this court valuable insight into the trial court's rationale for 'its decision and facilitate appellate review. Id.

II. Special Relationship

IRD first contends that the trial court erred when it concluded that no special and long-term relationship existed between IRD and Laven which would impose on the latter a duty to advise IRD about its insurance coverage.

We initially observe that an insurance agent who undertakes to procure insurance for another owes the principal a general duty to exercise reasonable care, skill, and good faith diligence in obtaining the insurance. Myers v. Yoder, 921 N.E.2d 880, 885 (Ind.Ct.App.2010). On the other hand, an insurance agent's duty does not extend to providing advice to the insured unless the insured can establish the existence of an intimate, long-term relationship with the agent or some other special cireumstance. Id. In other words, something more than the standard insurer-insured relationship is required to create a special relationship obligating the agent to advise the insured about coverage. Id. In the absence of a special relationship, the agent does not have a duty to inform the insured about the adequacy of the coverage or any alternative coverage that is available. Filip v. Block, 879 N.E.2d 1076, 1085 (Ind.2008), reh'y denied. |

Factors demonstrating the existence of a special relationship between the agent and the insured include whether the agent: 1) exercised broad discretion in servicing the insured's needs; 2) counseled the insured concerning specialized insurance coverage; 3) held himself out as a highly-skilled insurance expert; or 4) received compensation for the expert advice provided above the customary premium paid. Myers, 921 N.E.2d at 885. In applying these factors, this court has previously cautioned that the mere establishment of a long-term relationship is not sufficient to create a genuine issue of material fact as to the requisite "agent plus" relationship. Parker by Parker v. State Farm Mut. Auto.Ins. Co., 630 N.E.2d 567, 570 (Ind.Ct.App.1994). Rather, the determination is based on the character of the parties' relationship, not merely its duration. Id. More than anything, a special relationship is defined by entrustment. Id. While the question of whether the relationship gives rise to such a duty may involve questions of fact, whether an insurance agent owed the insured a duty to advise based on the undisputed facts is a question of law for the court. Id. The burden of establishing an intimate long-term relationship or other special cireum-stance is on the insured. Id.

Illustrative of these principles is United Farm Bureau Mut. Ins. Co. v. Cook, 468 N.E.2d 522 (Ind.Ct.App.1984). In Cook, Melvin Cook, a surgeon, managed a horse farm as a sideline business for approximately twelve years prior to trial while Browning, an insurance agent, provided all the insurance coverage related to Cook's farm. Id. Cook would contact Browning to purchase all coverage pertinent to his farm but leave the details to Browning's discretion. Id. at 524. Browning would subsequently bill Cook for the coverage selected. Id. at 525.

At a certain point, Cook became aware of the opportunity to purchase two horse barns located in Kentucky and informed Browning of this potential purchase. Id. Cook purchased the barns and signed two sales contracts indicating that Cook would assume liability for the dismantling of the barns and their move to Indiana. Id. Thereafter, Cook discussed his insurance needs with Browning and placed an oral request for coverage. Id. Browning told Cook he could not write coverage for the component parts of the barns while they were in Kentucky. Id. According to Cook, this was the only denial of coverage that he received. Id. Browning did not deny he could provide the remaining coverage and he did not refer Cook to another agency. Id. During the dismantling of the barns, a crane overturned and Cook was held personally liable for the damages. Id. at 524. Cook attempted to file a claim with his insurance company but was denied coverage. Id. He sued Farm Bureau and Browning to recover the amount he paid for the damages and costs. Id. The jury returned a money award in Cook's favor. 1d. at 526.

In determining that the agent had a duty to advise Cook regarding appropriate coverage, we observed that

Browning himself conceded that he was Cook's insurance man and that Cook relied on his advice in purchasing insur- ' ance. Additionally, by Browning's own admission, his role went beyond that of a mere agent and he counseled Cook on the appropriate coverages for his horse farm.... In the case at bar, a long-established relationship of entrustment had developed between the insured and agent, and Browning exercised broad discretion to service Cook's insurance needs.

Id. at 528.

Almost twenty-five years later, we affirmed these principles in Billboards N' Motion, Inc., v. Saunders-Saunders & Assoc., Inc., 879 N.E.2d 1185 (Ind.Ct.App.2008), trans. denied. In 1999, Billboards purchased an electronic billboard from a Korean Company. Id. at 1136. Saunders had been Billboards' insurance agent for fifteen years, and Billboards relied on Saunders for insurance advice. Id. Saunders indicated that he would insure the billboard but did not inquire after the year, manufacturer, model, description, or value of the electronic billboard. Id. At some point, Saunders came to see the containers for the electronic billboard. Id. When some of the billboard's parts were found missing, Billboards filed an insurance claim, which was denied. Id.

Evaluating whether Saunders had incurred a duty to obtain the additional information necessary for coverage, we noted that the depositions indicated that Billboards had relied on Saunders to determine appropriate coverages and had a fifteen-year business relationship. Id. at 1185, 1142-48. However, the evidence also reflected that Saunders could only purchase insurance with Billboards' approval. Id. The court found the evidence contradictory enough on the issue of the existence of a heightened duty based on a long-standing relationship and other factors to deny summary judgment to both parties. Id. at 1148-44.

In light of Cook and Billboards, the designated evidence demonstrates that La-ven incurred a duty to advise IRD. The relationship between IRD and Laven is characterized by a long-term, professional affiliation, and is defined by a yearly ritual and customized policies. With an initial policy issued through Hepler-Smith, La-ven acquired IRD's policies in 1997 through its aequisition of Hepler-Smith, which resulted in a business relationship spanning thirty years. When IRD signed on with Hepler-Smith, a "professional liability coverage" endorsed by the IDA was recommended by Hepler-Smith and purchased by Dr. Lehman. (Appellant's App. p. 626). Throughout the time-span of this relationship, Laven was an "authorized agent" for the IDA-endorsed policies, issued through ProAssurance. (Appellant's App. p. 707). In fact, ProAssurance was the main insurance carrier of IDA-approved policies for Laven's customers at the time of the fire in 2009.

Although in Cook, Cook and Browning met in person to discuss insurance needs, the personal relationship between IRD and Laven was fostered through the yearly ritual of the renewal process and Laven's targeted advice, effectively becoming a mutually entrusted affiliation-similar to the one in Cook. When questions about IRD's insurance coverage arose, Maureen would contact Laven's office. At times, La-ven would recommend changes to the policies. In one instance, when Maureen called Laven with "a question about [IRD's] dental lab in the late 1990s, [La-ven] advised [her] [] to change [IRD's] worker's compensation policy because law technicians had a higher risk of injury and a corresponding higher insurance rate." (Appellant's App. p. 632). IRD relied on Laven's advice.

. On an annual basis, and as part of the insurance renewal process, Laven would mail IRD a questionnaire with an existing Declarations Page, outlining the current year's policy limits The questionnaire sought to determine any changes in the dental practice and focused on recent "capital expenditures," including new employees on the worker's compensation policy, office equipment, and computer purchases. (Appellant's App. pp. 635-36). Specifically, the questionnaire was designed to aid the insurance agent "to keep abreast of any changes that may affect [the insured's] practice." (Appellant's App. p. 626). Maureen would complete the questionnaire and, based on her answers to the questions, request the changes in insurance deemed necessary. Laven would process the renewal and enact the requested changes, if any, and then send IRD an updated coverage summary for the forthcoming year's insurance policy, together with a cover letter.

ProAssurance and Laven now focus on the cover letter's content to bolster their argument that Laven had no discretion in servicing IRD's insurance needs. In its letter, sent together with the updated coverage summary, Laven cautioned IRD to

Please take a moment to look these policies over and be sure that they have been issued to your liking. I have enclosed a summary of all your policies. Please keep this with your copies of the policies. Any changes from your renewal questionnaire may not nee-essarily be included.

(Appellant's App. p. 293) (emphasis in original). However, at IRD's receipt of the cover letter, Laven had already counseled IRD about its policy's renewal by way of the questionnaire and guided IRD into either renewing its policy without changes or requesting an increase in policy limits. As such the cover letter's language cannot be interpreted to place on the insured the burden of ensuring that an insurance agent, who is in the business of procuring insurance, actually performed satisfactorily by acquiring the change in coverage.

In addition to the yearly renewal ritual, Laven would issue risk review newsletters presenting itself as a highly-skilled insurance expert. In this newsletter, Laven advised its eustomers on how to minimize their risks and offered to evaluate its customer's risk exposure with the customer's specific business and property in mind, thereby tailoring the coverage to the customer's unique needs. Maureen testified that she would review this general information and act on it, if appropriate.

Mindful of the designated evidence, we conclude that there was a long-standing relationship between IRD and Laven that would justify imposing on Laven a duty to advise IRD. Although this relationship lacks the personal touch that Browning offered in Cook, the nature of IRD's relationship with Laven displays a similar professionalism, discretion, and reliance. While Laven-through Hepler-Smith-recommended an initial specialized policy, endorsed by the IDA, the insurance company made yearly recommendations by way of its questionnaire, purposely designed by the insurance agent to keep informed of its customers' needs. Even though IRD ultimately made the final decision on its actual procurement of the ree-ommended policies, IRD's decision was in no small degree guided by its responses to Laven's tailored questionnaire. As such, IDA's endorsed insurance for dental professionals was further customized to Dr. Lehman's practice as a prosthodontist and was adjusted, on Laven's recommendation, to reflect the presence of fulltime laboratory technicians at the office. In addition, Laven held itself out as a highly-skilled insurance expert. Through its risk review newsletter, Laven made several representations about its abilities and offered its advice on insurance coverage with respect to its customers' business and property. As a result, a long-established relationship of entrustment developed between IRD and Laven. Therefore, in light of this thirty-year relationship, Laven had an obligation to advise IRD with respect to its insurance coverage. Consequently, we reverse the trial court's summary judgment in favor of ProAssurance with respect to the special duty to advise and enter summary judgment in favor of IRDA

III. Duty to Procure

Next, IRD contends that the trial court erred when it concluded that "there was no factual basis which could support a finding that Laven was under a contractual duty to provide insurance that would have fully covered the fire losses sustained by IRD[.]" (Appellant's App. p. 14). IRD maintains that "[it is well established in Indiana that an agent who breaches its duties to a customer may be sued for breach of contract." (Appellant's Br. p. 34).

An insurance agent or broker who undertakes to procure insurance for another is an agent of the proposed insured, and owes the principal a duty to exercise reasonable care, skill, and good faith diligence in obtaining the insurance. Cook, 468 N.E.2d at 527 (Ind.Ct.App.1984). If the agent undertakes a duty to procure the insurance and, through fault and neglect, fails to do so, the agent or broker may be liable for breach of contract or for negligent default in the performance of a duty imposed by contract. Id. In Indiana, an oral or written contract of insurance requires a meeting of the minds of the parties upon the following essential elements of a contract: (1) the subject of the insurance; (2) the risk or peril insured against; (8) the amount of coverage; (4) the limit and duration of the risk; and (5) the amount of the premium to be paid. Stockberger v. Meridian Mut. Ins. Co., 182 Ind.App. 566, 395 N.E.2d 1272, 1279 (1979).

A contract to procure insurance can be implied based on past dealings between the parties even though the agent is given authority to ascertain some of the facts essential to the ultimate creation of the contract. Bulla v. Donahue, 174 Ind.App. 123, 126, 366 N.E.2d 233 (1977). The terms and conditions of the proposed policy need only be sufficiently definite to enable the agent or broker to procure a policy consistent with the applicant's insurance needs. Id. However, there is a corresponding duty on the part of the insured to provide the agent or broker with the information necessary to implement the policy. Id. An agent or broker is not liable when the insured's loss is due to the insured's own act or omission. Id. Additionally, there is implied in an undertaking to procure insurance a duty to seasonably notify the applicant in the event the agent is unable to obtain insurance. Bulla, 174 Ind.App. at 126, 866 N.E.2d 283.

Referencing the traditional yearly renewal procedures and questionnaires, and the fact that there was an existing office contents insurance policy in place, IRD maintains that the parties have sufficiently established their past dealings to confirm a duty on Laven to procure insurance. Accordingly, the threshold question becomes the pattern of conduct between IRD and Laven.

As noted previously, the designated evidence reflects an established ritual spanning approximately three decades with the office contents policy at its core, which includes a set of delineated perils and has an annual duration. Each year, with the upcoming annual renewal date looming, Laven would send IRD a questionnaire and Declarations Page with the current year's policy limits. After completing the questions, which sought to determine any changes in IRD's dental practice, Maureen would return the questionnaire to Laven. Onee Laven sent IRD an updated coverage summary for the forthcoming year's insurance policy, Maureen would pay the premium requested. However, in 2008, Laven failed to procure an insurance policy with an increase in IRD's office contents coverage as indicated on Maureen's completed questionnaire even though it did make the other two changes requested by IRD.

Thus, the terms and conditions of the proposed policy were in effect through the master office contents policy, which was renewed on a yearly basis without any invasive amendments. The only varying elements were the amount of coverage and amount of the premium. The amount of coverage was indicated on the questionnaire, as returned by Maureen, and was phrased sufficiently definite to provide La-ven with the needed guidance to procure the increased coverage. With respect to the premium, it should be noted that, in Cook, we upheld a verdict for the customer in a breach of contract against the agent even though the agent never communicated a proposed premium to the customer. See Cook, 468 N.BE.2d at 527-28. This is logical as the information on which the premium must be calculated can only come from the agent after he or she has procured the insurance. Thus, as Maureen had provided Laven with the necessary information to procure the policy, Laven had all the elements in its possession to also calculate the premium's amount.

Consequently, we conclude that an implied contract to procure insurance arose based on the past dealings between IRD and Laven. Laven had sufficiently definite directions from IRD in 2008 to enable it to consummate the insurance policy with an increased coverage limit; Laven's failure to do so triggered its liability. Therefore, we reverse the trial court's grant of summary judgment in favor of ProAssu-rance with respect to Laven's duty to procure and grant summary judgment to IRD.

IV. Vicarious Liability

Turning its attention to ProAssurance, IRD next contends that it designated sufficient evidence establishing an issue of material fact that Laven is ProAssurance's agent and ProAssurance consequently can be held liable for its agent's conduct and mistakes.

Agency is a relationship resulting from the manifestation of consent by one party to another that the latter will act as an agent for the former. Smith v. Brown, 778 N.E.2d 490, 495 (Ind.Ct.App.2002). Three elements must be shown in order to establish an actual agency relationship: (1) manifestation of consent by the principal; (2) acceptance of authority by the agent; and (8) control exerted by the principal over the agent. Robertson v. Ticor Title Ins. Co. of Fla., 982 N.E.2d 9, 20 (Ind.Ct.App.2012), trans. denied. Whether an agency relationship exists is generally a question of fact. Id. However, if the evidence is undisputed, summary judgment may be appropriate. Demming v. Underwood, 943 N.E.2d 878, 884 (Ind.Ct.App.2011), trans. denied.

The term "insurance agent" is often used loosely. But because the term invokes agency principles, we must identify the principal for whom the insurance intermediary is an agent. Estate of Mintz v. Conn. Gen. Life Ins. Co., 905 N.E.2d 994, 1000 (Ind.2009). "A party who negotiates an insurance contract to cover someone else's risk is acting as an agent for either the insured or the insurer." Id. at 1000-1001. Depending on whose interests the "insurance agent" is representing, he or she may be a "broker" or an "agent." Id. at 1001. A critical distinction exists. A representative of the insured is known as an "insurance broker." Id. As a general rule, a broker is the agent of the insured and not the insurer. Id. As such, the insurer is not liable for the broker's tor-tious conduct,. Id. A broker represents the insured by acting as an intermediary between the insured and insurer, soliciting insurance from the public under no employment from any special company and, upon securing an order, places it with a company selected by the insured, or if the insured has no preference, with a company selected by the broker. Id.

In contrast, an "insurance agent" represents an insurer under an employment agreement by the insurance company. Id. Unlike the acts of a broker, "acts of an [insurance] agent are imputable to the insurer." Id. A person may be an agent as well as a broker, and may at different times act in different capacities, sometimes representing the insurance applicant and at other times acting on behalf of the insurance company. Benante v. United Pac. Life Ins. Co., 659 N.E.2d 545, 547-48 (Ind.1995). Whether an insurance intermediary is an agent of the insured or the insurer is fact sensitive and includes consideration of the facts and circumstances of the case, the relation of the parties, their actions, their usual course of dealing, any instructions given to the person by the company, the conduct of the parties generally, and the nature of the transaction. Id. at 548.

In interpreting Indiana's case law, the Seventh Cireuit Court of Appeals stated "Indiana has a simple rule. An intermediary in the insurance business is the agent of the insured while shopping for a policy, and the agent of the insurer after a policy issues." Fidelity & Cas. Co. of N.Y. v. Tillman Corp., 112 F.3d 302, 304 (7th Cir.1997). "Indiana's rationale for treating intermediaries as agents of the insurers is that the insurers can decide with whom to deal. Carriers may demand that would-be agents establish their trustworthiness, and may set conditions-fidelity bonds, audits of the books, compensation for risk-bearing-to protect themselves. Insurers are best situated to monitor intermediaries through which they choose to deal, and therefore bear the risk of loss." Id.

In Estate of Mintz v. Connecticut General Life Insurance Co., 905 N.E.2d 994, 1002 (Ind.2009), our supreme court concluded that based on the relationship between the insurer and agent and their actions and usual course of dealing, the agent was not an agent of the insurer. The court found it instructive that the agent was not "just" the insurance company's agent but sold insurance policies for at least four companies; did not receive a commission from Connecticut General Life Insurance Co., although he did receive commissions from the other insurance companies he worked for; the agent was not authorized by the insurance company to issue policies on its behalf and had not entered into a written agreement with the insurance company; and the insurance company did not exercise control over his activities. Id. at 1001.

On the other hand, in Benante v. United Pacific Life Insurance Co., 659 N.E.2d 545, 547 (Ind.1995), our supreme court concluded that there was a question of fact as to whether Kobielak was United Pacific's insurance agent. In Benante, Kobic-lak and the insurance company had entered into a "General Agent Agreement" and Kobielak represented himself as an agent of United Pacific. Id. Although the contract referred to Kobielak as an independent contractor, the supreme court considered this to be "significant but not dispositive." Id. Specifically, the court noted that, in the contract, Kobielak and United Pacific made certain undertakings to each other which could reasonably be determined to create an agency relationship: Kobielak signed Benante's annuity application and completed the areas of the application entitled "For Agent Use Only"; Kobielak provided Benante with United Pacific brochures; and a representative of United Pacific testified Kobielak was its agent. Id.

Turning to the case at bar, the relationship between Laven and ProAssu-rance is governed by an Agency Agreement which defines its agent to be an independent contractor:

VII. INDEPENDENT TOR CONTRAC-
A. Agent is an independent contractor. Nothing contained in this Agreement shall be construed as creating the relationship of employer and employee between the Company and the Agent or between the Company and any employee of Agent. 'The Company shall not be responsible for expenses incurred by Agent such as rent, transportation, clerical, solicitor's fees, postage, express, telephone, electronic, advertising, exchange, or for any other expenses whatsoever.

(Appellant's App. p. 808). However, the Agency Agreement also required "strict compliance with [ProAssurance's] rules and guidelines when selling and servicing [ProAssurance's] policies." (Appellant's App. p. 806). The Agreement imposed minimal annual production requirements and prohibited Laven from placing any referrals from ProAssurance with other insurance companies. In soliciting eus-tomers, Laven was only allowed to broadcast, publish or distribute advertising or promotional materials if these had been provided by ProAssurance. In the event a policy was issued, Laven could not charge a service fee to a policyholder with respect to the sale or servicing of ProAssurance's policies.

The designated evidence further supports that Laven admitted to being an "authorized agent" of an IDA-endorsed program through ProAssurance. (Appellant's App. p. 707). While Laven stated that it was not an exclusive agent of ProAssurance, Laven nevertheless admitted that at the time of the fire in 2009, it was working with "one or two insurers" to provide coverage for "dental practices," of which ProAssurance was the main one. (Appellant's App. p. 450). Accordingly, Laven "placed the vast majority of [the] dental insurance with ProAssurance." (Appellant's App. p. 450).

Although the Agency Agreement characterizes Laven as an independent contractor, this element alone is not dispositive. See Benamte, 659 NE.2d at 547. As in Benante, Laven and ProAssurance made certain undertakings to each other which could reasonably be determined to create an agency relationship. See id. In particular, the terms and conditions of the Agency Agreement indicate a considerable amount of oversight and control by ProAs-surance over Laven's conduct and actions. ProAssurance approved Laven to become an authorized agent of its IDA-endorsed policies, set a yearly minimum production goal, and paid Laven a commission from these sales. Because there is a genuine issue of material fact as to whether Laven acted as an agent for ProAssurance and therefore ProAssurance can be held liable for Laven's actions, we reverse the trial court's grant of summary judgment in favor of ProAssurance and remand to the trial court for further proceedings.

CONCLUSION

Based on the foregoing, we hold that (1) Laven was under a special duty to advise IRD about its insurance coverage based on their long-term relationship; (2) Laven had a duty to procure full coverage insurance based on its past dealings with IRD; and (8) there is a genuine issue of material fact as to whether Laven is ProAssu-rance's agent and therefore ProAssurance can be held vicariously liable for Laven's actions. Consequently, we reverse the trial court's summary judgment in favor of ProAssurance and grant summary judgment to IRD with respect to Laven's duty to advise and duty to procure. Additionally, we reverse the trial court's summary judgment with respect of ProAssurance's vicarious liability and remand to the trial court for further proceedings.

Reversed and remanded for further proceedings.

ROBB, C.J. and KIRSCH, J. concur.

      . Hepler-Smith Professional Insurance Plans, Inc. acquired Dr. Lehman's account from He-pler-Smith Insurance in 1986 and merged into Laven in 1997. The business relationship with Dr. Lehman was preserved through these restructurings.

      . -It should be noted that this flyer was mailed after the occurrence of the fire. Although the 2010 risk review newsletter was properly admitted, the admission of any additional newsletter is contested by the parties.

      . IRD devotes several pages of its appellate brief contesting the trial court's refusal to admit the additional risk review newsletters through its motion to correct error. Although IRD had designated the 2010 risk review . newsletter in support of its motion for summary judgment, it provided additional newsletters to the trial court together with its motion to correct error. The trial court ruled * that these additional newsletters "did not . meet the requirements for consideration as newly discovered evidence" and refused to admit them. (Appellant's App. p. 16). Relying on Indiana Trial Rule 59(A)(1), IRD asserts that it used reasonable diligence to obtain the additional newsletters prior to the trial court's summary judgment. Upon review, we conclude that the trial court did not abuse its discretion by refusing to admit the additional newsletters as newly discovered evidence.

      . Because we find Laven's duty to advise premised on the existence of a special relationship, we will not address IRD's alternative contention whether Laven assumed a duty to advise based on special circumstances. See, eg., Meridian Title Corp. v. Gainer Group, LLC, 946 N.E.2d 634, 638 (Ind.Ct.App.2011), trans. denied.


source: Caselaw Access Project

author: VAIDIK, Judge.

license: Public Domain

text:
    Paul J. COY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 48A02-1301-CR-65.
    Court of Appeals of Indiana.
    Dec. 18, 2013.

      Christopher A. Cage, Anderson, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

VAIDIK, Judge.

Case Summary

Paul Coy and his friend Mike Duchetegu raced cars on a two-lane road in Anderson, Indiana. Coy drove as fast as 106 miles per hour before losing control of the car and crashing it into a group of trees on the side of the road, killing one passenger, Darian Hurn, and seriously injuring his other passengers, A.K. and Z.M. Coy now appeals his convictions for one count of Class C felony reckless homicide and two counts of Class D felony criminal recklessness. Finding that the trial court properly declined to give a lesser-included instruction, there was not a fatal variation in the charging information, the trial court did not abuse its discretion by considering ag-gravators and failing to consider or give proper weight to mitigators, and Coy's sentence is appropriate in light of the nature of the offenses and his character, we affirm.

Facts and Procedural History

At approximately 1:80 p.m. on March 15, 2012, sixteen-year-old AK. and sixteen-year-old Z.M. left school early without permission to spend time with nineteen-year-old Coy and seventeen-year-old Hurn. It was Hurn's birthday. Coy picked the girls up from school with his grandmother's car, a black 2010 Chevrolet Cobalt. Hurn was in the passenger seat. AK. and Z.M. sat in the back seat.

After leaving the school, the group drove to Casey's Gas Station in Alexandria to meet Mike Ducheteau. Ducheteau was driving a gray Pontiac Grand Am. Duche-teau's friends, Sam Gustin and Shantell Pritchett, were passengers in his car. When Coy arrived, Coy and Ducheteau put gasoline in their cars. The group visited Hurn's house briefly and then began driving toward Anderson, Indiana.

At the intersection of State Road 128 and Madison Avenue, Hurn rolled down his window and asked Ducheteau if they wanted to race. Ducheteau agreed. Coy later admitted that he also wanted to race, stating that he "was just trying to have fun with [Hurn] on his birthday. Give him a good time." Tr. p. 527. Ducheteau preferred to race on Madison Avenue because he was concerned about the police on State Road 9. Id. at 294. When the cars turned onto Madison Avenue, a rural two-lane road, they were both in the right lane with Ducheteau's car in front. The race began with both cars "burning out," accelerating so that the car's tires were "squealing" as they drove north on Madison Avenue. Id. at 442, 445. After the turn onto Madison, Coy drove his car into the left lane, where oncoming traffic travels, and attempted to pass Ducheteau. As Coy began to pass Ducheteau, Ducheteau sped up. Coy went back into the right lane. He then tried to pass Ducheteau a second time. Ducheteau again sped up, preventing Coy from passing.

On the third passing attempt, a pickup truck approached from the opposite direction in the left lane and Ducheteau rolled down his window and told Coy to get into the right lane. At this point, Coy was traveling 106 miles per hour. Tr. p. 475-76; Ex. 56. After Coy pulled into the right lane, Ducheteau slammed on his brakes and Coy swerved to avoid hitting Ducheteau's car. Coy lost control of the car, swerved onto the grass on the right side of the road, and hit a patch of trees. Between one second and one-tenth of a second before hitting the trees, Coy's car was traveling at thirty-eight miles per hour. Id.

AK. remained in the car for about ten minutes after the accident. Coy helped AK. out of the car and she fainted. Because of the damage to the car, Z.M. and Hurn could not get out of the car without assistance. Emergency responders used a mechanical spreader and saw to create an opening large enough for them to be removed from the car. The impact broke AK.'s vertebrae at L1 and L2 and shattered her wrist. Z.M. sustained a broken pelvis and sternum, a blood pocket under her spleen, and bruised intestines. The crash caused the Cobalt's dashboard to be pushed into the front seat, striking Hurn. Hurn, who was bleeding, spoke briefly to AK. before losing consciousness. Hurn was then air lifted to Methodist Hospital in Indianapolis. He sustained severe blunt-force trauma that damaged his lung, tore his spleen, and stopped his heart. Physicians at Methodist performed surgery to apply eardio-pulmonary resuscitation. They also performed surgery to repair his lung and remove his spleen. Hurn continued to bleed internally and was placed on life support. Because his heart would not beat normally and a computerized tomography sean of his brain indicated that he had sustained a "non survivable head injury," Hurn's family took him off of life support. Tr. p. 486. He died early in the morning of March 16, 2018. Ex. 60.

Meanwhile, Coy moved to Tennessee to live with his mother. AK. called him to inform him that there was a warrant for his arrest. Once he confirmed there was an arrest warrant, he surrendered himself to the police.

The State charged Coy with one count of Class C felony reckless homicide for Hurn and two counts of Class C felony criminal recklessness resulting in serious bodily injury for AK. and Z.M. As a condition of being released on bond, Coy signed a protective order promising not to have contact with anyone who was in the car with him. Despite this, Coy continued to communicate with A.K., who was still his girlfriend, and was also charged with invasion of privacy during the pendency of this case.

At trial, Coy testified in his own defense. He claimed that he did not know how fast he was going, but he knew he was speeding. After the close of evidence, defense counsel requested that an instruction for reckless driving be provided as a lesser-included offense of reckless homicide. The State objected, arguing that no evidentiary dispute existed that would allow the introduction of the lesser-included offense. The court sustained the objection and refused to give the lesser-included instruction to the jury. The jury found Coy guilty of all charges.

At sentencing, the trial court found that Coy's lack of criminal history was a miti-gator, but because he had a prior speeding ticket and "was aware of what the law was and the possible ramifications of speeding," the mitigator was given little weight. Tr. p. 628. The trial court found that Coy's violation of the protective order with AK. was an aggravator, stating that "hle has flaunted the law." Id. at 624. It also found the fact that there were multiple victims in the case was an aggravator. Id. As a result of these cireumstances, the trial court determined that the aggravating cireumstances outweighed the mitigating cireumstances. The court sentenced Coy to eight years in the Department of Correction for Class C felony reckless homicide, and three years for each count of Class D felony criminal recklessness, running concurrently. Id.

Coy now appeals.

Discussion and Decision

Coy asserts that the trial court erred in refusing to allow the lesser-included offense of reckless driving to be argued and included in the jury instructions, the State presented a fatal variation between the charging information and the proof at trial, the trial court abused its discretion in imposing the maximum sentence for reckless homicide, and his sentence is inappropriate in light of the nature of the offense and his character.

I. Failure to Give Instruction

Coy argues that the trial court erred by failing to instruct the jury that it had the option of convicting him of reckless driving as a lesser-included offense of reckless homicide. The State responds that Coy waived the issue by not tendering the pattern jury instruction.

It is well settled that "[the manner of instructing a jury is left to the sound discretion of the trial court." Albores v. State, 987 N.E.2d 98, 99 (Ind.Ct.App.2013), trans. denied. When reviewing a trial court's decision to refuse or give jury instructions, this Court "considers: (1) whether the instruction correctly states the law; (2) whether there is evidence in the record to support the giving of the instruction; and (8) whether the substance of the tendered instruction is covered by other instructions which are given." Watson v. State, 972 N.E.2d 378, 383 (Ind.Ct.App.2012) (quoting Gravens v. State, 836 N.E.2d 490, 493 (Ind.Ct.App.2005), trans. denied ).

If a trial court errs by declining to give a jury instruction, "a tendered instruction is necessary to preserve error because, without the substance of an instruction upon which to rule, the trial court has not been given a reasonable opportunity to consider and implement the request." Garrett v. State, 964 N.E.2d 855, 856 (Ind.Ct.App.2012) (quoting Mitchell v. State, 742 N.E.2d 958, 955 (Ind.2001)), reh'g denied, trans. denied.

Indiana Rule of Criminal Procedure 8(D), in pertinent part, states the following:

Requested instructions must be reduced to writing (identified as to the party making submission), separately numbered, and accompanied by a cover sheet signed by the party, or his attorney, who requests such instructions and will be deemed sufficiently identified as having been tendered by the parties or submitted by the court if it appears in the record from an order book entry, bill of exceptions or otherwise, by whom the same were tendered or submitted.

Indiana Trial Rule 51(E) also permits a party to request jury instructions from the Indiana Pattern Jury Instructions "by merely designating the number thereof in the Here, Coy merely requested that a lesser-included offense instruction be provided for reckless driving without tendering proposed jury instructions or identifying a number from the Indiana Pattern Jury Instructions. Tr. p. 538-40. For this reason, Coy has waived this issue on appeal.

Waiver notwithstanding, when determining whether the trial court should give an instruction for a lesser-included offense of the crime charged, this Court conducts a three-part test. First, . the Court must compare the statute of the crime charged with the statute of the lesser-included offense to determine if the lesser-included offense is included in the crime charged. Watts v. State, 885 N.E.2d 1228, 1231 (Ind.2008) (citing Wright v. State, 658 N.E.2d 563 (Ind.1995)). A lesser-included offense is inherently included in the charged statute "[if the alleged lesser-included offense may be established by proof of all of the same or proof of less than all of the same material elements to the crime, or if the only difference between the two statutes is the alleged lesser-included offense requires proof of a lesser eulpability ...." Id.

Second, if the alleged lesser-included offense is not inherently included in the charged crime, the Court must compare the statute defining the alleged lesser-included offense with the charging information to determine if all elements of the alleged lesser-included offense are covered by the allegations in the charging instrument. Id. If all of the allegations are covered, then the alleged lesser-included offense is factually included in the charged crime. Id.

Third, if the alleged lesser-included offense is either inherently or factually included in the charged crime, the trial court must examine the evidence presented by both parties to determine "whether there is a serious evidentiary dispute over the element or elements that distinguish the crime charged and the lesser-included offense." Id. The trial court must instruct the jury on the lesser-included offense if it would be possible for the jury to find that the lesser, but not the greater, offense has been committed. Id. In other words, a serious evidentiary dispute will be established only when a conflict in the evidence can lead to the conclusion that the alleged lesser offense was committed and that the charged crime was not committed. Webb v. State, 963 N.E.2d 1108, 1106 (Ind.2012).

To determine whether the lesser-included instruction should have been given, we must apply the test established in Wright. We must first compare the two statutes to determine whether reckless driving is a lesser-included offense of reckless homicide. Class C felony reckless homicide occurs when a person: (1) recklessly (2) kills (8) another human being. Ind.Code § 35-42-1-5. Class B misdemeanor reckless driving, in relevant part, occurs when a person who operates a motor vehicle (1) recklessly (2) drives at such an unreasonably high speed under the circumstances to (8) endanger the safety or property of others. Ind.Code § 9-21-8-b2(a)(1)(A). Comparing these two statutes, proof of all of the elements of reckless homicide does not necessarily prove reckless driving. Thus, reckless driving is not inherently a lesser-included offense of reckless homicide.

Second, if the lesser-included offense is not inherently included, we must compare the statute defining the lesser-included offense, the reckless driving statute, with the charging information to determine if all elements of the alleged lesser-included offense are covered by the allegations in the charging information. Coy's charging information for reckless homicide provides:

On or about March 15, 2012, in Madison County, State of Indiana, JAMES PAUL COY did recklessly kill another human being, to wit: Darian Stephen Hurn. ALL OF WHICH IS CONTRARY to the form of the statutes in such cases made and provided by I.C. 35-42-1-5 and against the peace and dignity of the State of Indiana.

Appellant's App. p. 36. Here, the charging information does not include all of the elements of reckless driving. The charging information does not allege the fact that Coy drove at an unreasonably high speed in order to recklessly kill Hurn.

However, looking to the evidence presented at trial suggests that reckless driving is factually included within eriminal recklessness in this particular case. The information at trial proved the reckless element of criminal recklessness by showing that Coy engaged in racing and drove his car up to 106 miles per hour on a two-lane highway moments before the crash. Tr. p. 475-76, Ex. 56. These facts are also sufficient to prove that Coy (1) recklessly (2) drove at such an unreasonably high speed under the cireumstances to (8) endanger the safety or property of others. Because the evidence necessary to prove Class C felony reckless homicide in the context of this case required the proving of all the elements of Class B misdemeanor reckless driving, we conclude that Class B misdemeanor reckless driving was a factually included offense in the context of this case.

Because the requested lesser-included instruction is factually included, we must determine whether there is a serious evidentiary dispute over the elements that distinguish the crime charged from the lesser-included offense. The elements distinguishing Class C felony criminal recklessness from Class B misdemeanor reckless driving are (1) killing (2) another human being. Compare Ind.Code § 35-421-5 with Ind.Code § 9-21-8-52(a)(1)(A). To determine whether a serious evidentiary dispute exists, we must examine the evidence presented by both parties. Webb, 963 N.E.2d at 1107. Here, no serious evidentiary dispute exists. The evidence presented at trial established that Hurn died as a result of the crash. Tr. p. 488; Ex. 60. Because no serious evidentiary dispute exists, the trial court did not abuse its discretion in failing to give an instruction for Class B misdemeanor reckless driving.

II. Material Variance of Charging Information

Coy also argues that there was a fatal variance between the charging information on Counts II and III, Class D felony criminal recklessness, and the proof at trial. Although trial counsel did not raise an objection at trial, Coy claims that the variance was fundamental error. Fundamental error occurs if the charging information "misleads the defendant or faills] to give him notice of the charges against him so that he is unable to prepare a defense to the accusation." Miller v. State, 634 N.E.2d 57, 61 (Ind.Ct.App.1994). Coy essentially claims that fundamental error occurred because he was charged under Indiana Code section 3542-2, 2(d)(1), Class D criminal recklessness for inflicting serious bodily injury on another person, instead of Indiana Code section 35-42-2-2(b)(1), (c)(2)(B), Class D felony criminal recklessness for performing an act that creates a substantial risk of bodily injury to another person by committing aggressive driving, as defined in Indiana Code section 9-21-8-55, that results in serious bodily injury to another person.

"A variance is an essential difference between proof and pleading." Allen v. State, 720 N.E.2d 707, 713 (Ind.1999) (citing Mitchem v. State, 685 N.E.2d 671, 677 (Ind.1997)). A variance does not nee-essarily require reversal, however. Broude v. State, 956 N.E.2d 130, 135 (Ind.Ct.App.2011) (citing Mitchem, 685 N.E.2d at 677), trans. denied. The test to determine whether a variance is fatal is:

(1) was the defendant mislead by the variance in the evidence from the allegations and specifications in the charge in the preparation and maintenance of his defense, and was he harmed or prejudiced thereby;
(2) will the defendant be protected in [a] future eriminal proceeding covering the same event, facts, and evidence against double jeopardy?

Id.

When multiple criminal statutes could apply to a single crime, "the Government may prosecute under either so long as it does not discriminate against any class of defendants.... Whether, to prosecute and what. charge to file or bring ... are decisions that generally rest in the prosecutor's discretion." Skinner v. State, 732 N.E.2d 235, 238 (Ind.Ct.App.2000), affid, 736 N.E.2d 1222 (Ind.2000) (quoting Comer v. State, 428 N.E.2d 48, 54 (Ind.Ct.App.1981)), trans. denied. Moreover, "[the State need not prosecute under the more specific of two statutes, nor under the statute carrying the lesser penalty." Beech v. State, 162 Ind.App. 287, 296, 319 N.E.2d 678, 684 (1974).

Here, Coy does not contend that his conduct was not chargeable under Indiana Code section 35-42-2-2(d)(1). He also does not claim that charging him under Section 2(d)(1) constitutes discrimination against a class of defendants. The charging information for Counts II and III reads:

On or about March 15, 2012, in Madison County, State of Indiana, JAMES PAUL COY did recklessly, knowingly or intentionally inflict serious bodily [sic] on another person, to wit; Z.M. ALL OF WHICH IS CONTRARY to the form of the statutes in such cases made and provided by I.C. 35-42-2-2(d)(1) and against the peace and dignity of the State of Indiana.
On or about March 15, 2012, in Madison County, State of Indiana, JAMES PAUL COY did recklessly, knowingly, or intentionally inflict serious bodily [sic] -on another person, to wit: AK. ALL OF WHICH IS CONTRARY to the form of the statutes in such cases made and provided by I.C. 35-42-2-2(d)(1) and against the peace and dignity of the State of Indiana.

Appellant's App. p. 36-37. At trial, the State proved that Coy recklessly drove his car in such a way that caused serious bodily injury to A.K. and Z.M. through the testimony of several individuals, including both Z.M. and AK. Thus, there was no "essential difference between proof and pleading." We do not agree with Coy that a variance occurred because there was a statute under which he could be charged that more closely fit his crime. Essentially, the prosecutors used their discretion to determine what charges were filed against Coy. Both charges were applicable to the facts of this case; both charges were Class D felonies, and there was no showing that the prosecutor discriminated against Coy in charging this offense. There is no error here, much less fundamental error.

III. Abuse of Discretion

Next, Coy contends that the trial court abused its discretion by inappropriately considering Coy's violation of a pretrial release order as an aggravator, declining to consider that Hurn induced Coy to race, and declining to give Coy's lack of eriminal history much mitigating weight. Sentencing decisions are within the sound discretion of the trial court and are reviewed on appeal only for abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.2007), clarified on reh'g, 875 N.E.2d 218 (Ind.2007). As long as the sentence is within the statutory range, it is reviewable only for abuse of discretion. Id. An abuse of discretion occurs if the decision is "clearly against the logic and effect of the facts and cireum-stances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom." Id. (citing K.S. v. State, 849 N.E.2d 538, 544 (Ind.2006)).

A trial court can abuse its sentencing discretion in several ways, including: (1) failure to enter a sentencing statement at all; (2) entering a sentencing statement that explains reasons for imposing a sentence where the record does not support the reasons; (8) entering a sentencing statement that omits reasons that are clearly supported by the record and advanced for consideration; and (4) entering a sentencing statement in which the reasons given are improper as a matter of law. Id. at 490-91. If the trial court abuses its discretion in one of these or any other way, remand for resentencing may be the appropriate remedy "if we eannot say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record." Id. at 491.

Although there may be several aggravating factors, "[oluly one valid ag-gravator is needed to sustain an enhanced sentence." Id. (citing Jones v. State, 600 N.E.2d 544, 548 (Ind.1992)). If one aggravating factor is improperly applied, the sentence is still valid as long as "other valid aggravators exist[ed] and the invalid aggravator did not play a significant role in the trial court's decision." Hart v. State, 829 N.E.2d 541, 548-44 (Ind.Ct.App.2005).

Coy argues that the number of victims is not relevant in enhancing a sentence. However, a trial court may consider the number of vietims as an aggravator. Mateo v. State, 981 N.E.2d 59, 78 (Ind.Ct.App.2012) ("The number of victims can be considered an aggravating cireumstance."), trans. denied. This, alone, was sufficient to enhance Coy's sentence.

Coy also argues that the trial court erred in considering his violation of a pretrial release order to have no contact with his girlfriend AK. as an aggravating circumstance. Indiana Code section 35-38-1-7.1(a)(5) permits the court to consider as an aggravator the defendant's violation of a no-contact order issued against the person. Coy argues that the statute does not apply in this case because the statute only contemplates that a person violates a protective order and not a no-contact order. Appellant's Br. p. 16. Coy is wrong. The statute also includes the violation of no-contact orders as the type of violation that the court may: consider an aggravator. Ind.Code § 35-88-1-7.1(a)(5). Even still, our Supreme Court has stated that the list of factors in the statute is non-exhaustive, and thus, the trial court may consider other factors not listed in the statute as aggravating. Anglemyer, 868 N.E.2d at 488.

'Here, the trial court concluded that by violating the no-contact order Coy had "flaunted the law." Tr. p. 624. Moreover, the trial court stated that "he has flaunted what he's done and I think it has a total and significant effect on whether or not he's remorseful, It leaves me to believe that he was not. ..." Id. We conclude that Coy's total disregard for the law, despite the fact that he continued to maintain a relationship with AK., was a valid aggravating circumstance.

Coy also contends that the trial court did not properly consider that Hurn induced the offense and that. Coy had a minimal eriminal history as mitigating circumstances. Indiana Code section 35-38-1-7.1 states that "[the court may consider" as a mitigating cireumstance that "[t]he victim of the crime induced or facilitated the offense" and "[the person has no eriminal history of delinquency or criminal activity, or .the person has led a law-abiding life for a substantial period before commission of the crime" (emphasis added). While the court may consider these factors, it is not required to do so.

- Here, the court did consider the fact that Hurn encouraged Coy to race. The court stated that "[elven if it was at the consent and urging of somebody else, he was aware of what the law was and the possible ramifications of speeding." Id. at 623. Although the trial court was speaking in the context of Coy's eriminal history, its acknowledgement that Hurn encouraged Coy to race suggests that the court considered the factor and chose not to give it mitigating weight. Similarly, the court considered Coy's criminal history, determining that its weight should be "de mini-mus" because Coy chose to disregard the speeding law after receiving a previous ticket and because "violating speeding laws may tend to cause serious damage not only to the person but to property." Id. One speeding ticket does not establish a significant criminal history and the trial court should have given his lack of criminal history moderate mitigating weight. Even so, we are confident given the aggravating cireumstances here that the trial court would have imposed the same sentence.

IV. Appropriateness

Last, Coy contends that his eight-year sentence is inappropriate in light of the nature of the offenses and his character.

Although a trial court may have acted within its lawful discretion in imposing a sentence, Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent appellate review and revision of sentences through Indiana Appellate Rule 7B), which provides that a court "may revise a sentence authorized by statute if, after due consideration of the trial court's decision, the Court finds the sentence is inappropriate in light of the nature of the offense and the character of the offender." Reid v. State, 876 N.E.2d 1114, 1116 (Ind.2007) (citing Anglemyer, 868 N.E.2d at 491). When assessing the nature of the offense and the character of the offender, we may look to any factors appearing in the record. Stetler v. State, 972 N.E.2d 404, 408 (Ind.Ct.App.2012), trams. denied. The defendant has the burden of persuading us that his sentence is inappropriate. Reid, 876 N.E.2d at 1116 (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind.2006)).

The principal role of Rule 7(B) review "should be to attempt to leaven the outliers, and identify some guiding principles for trial courts and those charged with improvement of the sentencing statutes, but not to achieve a peregived 'correct' result in each case." Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.2008). We "should focus on the forest-the aggregate sentence-rather than the trees-consecutive or concurrent, number of counts, or length of the sentence on any individual count." Id. Whether a sentence is inappropriate ultimately turns on the culpability of the defendant, the severity of the crime, the damage done to others, and a myriad of other factors that come to light in a given case. Id. at 1224.

A person who commits a Class C felony shall be imprisoned for a term of between two and eight years, with four years being the advisory term. Ind.Code § 35-50-2-6(a) A person who commits a Class D felony shall be imprisoned for a term of between six months and three years, with one-and-a-half years being the advisory term. Ind.Code § 85-50-2-7(a).

Here, the trial court sentenced Coy to eight years for the Class C felony and three years for each Class D felony and ordered the sentences to be served concurrently. This is within the statutory range. The aggregate term is eight years, which is within statutory guidelines.

The nature of Coy's crimes is serious. Coy raced his car on a street with three high-school-aged children in the car. In the course of his racing, the speed of his car reached 106 miles per hour. As a direct result of him driving too fast, he lost control of his car and crashed. The car accident caused Hurn to sustain severe blunt-foree trauma that damaged his lung, tore his spleen, and stopped his heart. He died on the day after his seventeenth birthday. Additionally, the crash caused AK., a sixteen-year-old girl, to sustain a broken back and a shattered wrist and Z.M., a sixteen-year-old girl, to sustain a broken pelvis and sternum, a blood pocket under spleen, and bruised intestines. Coy also destroyed his grandmother's car.

As to Coy's character, he only has one previous speeding ticket. However, through his actions, Coy has shown a disregard for the law. After being released on bond, he violated a no-contact order and continued communicating with AK.

Given the nature of these offenses and his character, Coy has failed to persuade us that his aggregate eight-year sentence is inappropriate. We therefore affirm the trial court.

Affirmed.

BAKER, J., and FRIEDLANDER, J., concur.

      . Z.M. testified to the car being a Grand Prix. Tr. p. 273. Another witness, however, testified to it being a Pontiac Grand Am. Id. at 288.

      . Although Coy was charged with two counts of Class C felony criminal recklessness resulting in bodily injury committed by means of a deadly weapon, it appears that the counts were reduced to Class D felonies before the beginning of trial. See Tr. p. 200-01.

      . Coy does not argue that jury instructions for the lesser-included offense of reckless driving should have been included for his two counts of criminal recklessness. Appellant's Br. p. 6.

      . Indiana Appellate Rule 50(B)(1)(c) requires that the Appellant's Appendix include "any instruction not included in appellant's brief under Rule 46(A)(8)(e) when error is predicated on the giving or refusing of the instruction." While Coy did provide us with the verbatim objections as required in Appellate Rule 46(A)(8)(e), he did not provide us with the instructions he requested to be given either in his brief or in the Appellant's Appendix. However the absence of these instructions does not waive this issue on appeal. Ind. Appellate R. 49(B).

      . Because Coy never tendered jury instructions for the lesser-included offense of reckless driving, we include only the portion relevant to the facts of this case.

      . Coy does not allege that the same fatal variation occurred with respect to Count I, Class C felony reckless homicide. Appellant's Br. p. 13.