David L. Kimbrough v. Ramona F. Anderson

FILED
May 20 2016, 10:21 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Andrea L. Ciobanu William J. Beggs
Alex Beeman Jennifer L. Upton
Ciobanu Law, P.C. Bunger & Robertson
Indianapolis, Indiana Bloomington, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David L. Kimbrough, May 20, 2016
Appellant-Plaintiff, Court of Appeals Case No.
53A05-1507-PL-883
v. Appeal from the Monroe Circuit
Court
Ramona F. Anderson, The Honorable E. Michael Hoff,
Appellee-Defendant Judge.
Trial Court Cause No.
53C01-1208-PL-1670
Mathias, Judge.
[1] David Kimbrough (“Kimbrough”) filed a complaint in Monroe Circuit Court
against Ramona Anderson (“Anderson”), alleging that Anderson was liable for
damages when Kimbrough’s basement flooded on numerous occasions between
2008 and 2011 after Anderson excessively watered her yard. A jury found in
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favor of Anderson, and Kimbrough now appeals, raising eight issues, which we
consolidate and restate as:
1. Whether the trial court abused its discretion in precluding testimony
from Anderson’s insurance company regarding instructions given to
Kimbrough;
2. Whether the trial court abused its discretion in admitting Kimbrough’s
prior home insurance claim file into evidence;
3. Whether the trial court abused its discretion in admitting a
hydrogeologist’s expert report into evidence;
4. Whether the trial court abused its discretion in denying Kimbrough’s
motion for judgment on the evidence on two of Anderson’s affirmative
defenses; and
5. Whether the trial court abused its discretion in instructing the jury on
final instruction numbers 8 and 9, concerning Anderson’s affirmative
defenses.
[2] We affirm.
Facts and Procedural History
[3] Kimbrough purchased and moved into a home located on Robins Bow (“the
Residence”) in a neighborhood in Bloomington, Indiana in 2001.1 The
Residence is a two-story home, with the back side, garage, and part of the west
side mostly underground. The lower level includes a library, an office, two
bedrooms, a bathroom, a laundry room, and a recreation room. All of the walls
1
Kimbrough now resides with his parents in Kokomo, Indiana and since trial has sold the Residence.
Although Kimbrough primarily resided at the Residence, his wife lives in Romania, and he frequently
traveled to visit her and teach various courses abroad during these incidents.
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and ceilings are made of drywall, and all floors are carpeted except for tile in
the hallways and bathrooms.
[4] The Residence has experienced numerous water intrusion problems over the
years. Before Kimbrough purchased the Residence, the foundation was repaired
in 1995 due to settlement that stemmed from cracks in the basement floor slab.
Between 2001 and 2005, Kimbrough left a basement window open for
approximately one week, causing water damage. Another water issue occurred
during the same time period when an ice maker water line broke.
[5] In 2006, more serious damage occurred when a water line in the garage froze
and ruptured while Kimbrough was out of town. This break caused water to
run under the wall and into the living room, office, bathroom, utility room, and
library, leaving about three to four inches of standing water in the lower level.
Kimbrough filed a claim with his insurance company and the damage was
remedied by drying, re-painting, and re-drywalling the lower level of the
Residence. The contractors who repaired the damage indicated on the invoice
that they discovered “non-loss related mold” in the den and told Kimbrough
that the mold had not been caused by that particular incident.
[6] Anderson and her late husband2 moved into a home on Elizabeth Court to be
closer to family in 2006.3 Anderson’s home and the Residence are adjacent
2
Anderson’s husband, Robert, passed away during the trial court proceedings in 2012.
3
Anderson sold the Elizabeth Court home on December 1, 2013, but we will refer to the house on Elizabeth
Court as “Anderson’s home” to simplify the sequence of events.
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properties, with the Residence located directly north of Anderson’s home. The
front of the Residence faces north, and the back faces south and sits lower than
Anderson’s home.
[7] Anderson took pride in taking care of her yard, especially the flowers and
plants. She watered her plants in the early morning, and when the weather was
hot, she watered daily. As a result, Anderson’s water usage dramatically
increased during the summer months. Most of Anderson’s watering occurred in
the front yard, and she watered less frequently in the back yard, which was
adjacent to the Residence. On occasion, Anderson would use a sprinkler to
water as well.
[8] Again in 2007, water infiltrated Kimbrough’s lower level. Kimbrough alleged
that the damage was caused by Anderson leaving her sprinklers on for extended
periods of time and filed a lawsuit against the Andersons.4 In August 2008,
Kimbrough returned home and found a large amount of water in the lower level
again. He observed that the ground behind the Residence was wet but
Anderson’s sprinkler was not turned on. Kimbrough cleaned up the water with
a Shop Vac, fans, and a mop and bucket.
[9] A few months later, Kimbrough noticed spots of mold appearing in the
Residence. Kimbrough tried to remedy the problem by running a dehumidifier,
an air conditioner, and a furnace, and he used an infrared filter to prevent the
4
That case was settled, and Kimbrough released all claims for damage prior to December 31, 2007.
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mold from spreading into the ducts. He also called Valerian Simianu, Ph.D.
(“Dr. Simianu”), an environmental consultant, to conduct an inspection. Dr.
Simianu concluded that mold was present in the Residence and recommended
that the source of moisture be identified and removed. Due to the mold issues
and concern for his health, Kimbrough moved out of the Residence in Spring
2009. However, he would return to Bloomington every two or three days to
pick up mail, go to the bank, go to work, and maintain the Residence.
[10] Kimbrough returned in late-summer 2009 to find water running into the back of
the Residence. He noticed that Anderson’s sprinklers were on near the fence
between the two properties. Kimbrough took pictures of what he described as
“pooling” water in Anderson’s yard. Tr. p. 306. The pictures Kimbrough
submitted show a glare, which Anderson claims have been distorted. Further,
Kimbrough approached two of his neighbors5 to observe the sprinkler running.
He then called the police and asked them to shut off Anderson’s water.
Kimbrough indicated that the responding officer shut off the water, but
Anderson and the officer reported that the sprinklers were not on at the time the
officer arrived.
[11] After the responding officer left, Anderson asked two different neighbors to
walk along the yard between the Residence and Anderson’s home. Both
5
One neighbor passed away before trial, and the other neighbor wrote a letter detailing that on August 8,
2009, he observed a sprinkler running in Anderson’s yard and standing water on both sides of the fence
dividing the two properties.
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neighbors reported that the ground was dry and no standing water was in either
yard. Anderson also submitted pictures taken by one of the neighbors at trial.
This incident allegedly caused another “mess” in Kimbrough’s lower level, and
he again cleaned up the water in the same manner as before. Tr. pp. 311-12.
[12] Another similar incident occurred in September 2010. Kimbrough arrived at the
Residence, found standing water in the lower level, and noticed that Anderson’s
sprinklers were running. Again, Kimbrough called the police and asked them to
turn off Anderson’s water. Yet again in 2011, Kimbrough returned to the
Residence to find water in the lower level. Anderson’s sprinklers were not
running at this time. Kimbrough cleaned up the water again, but the condition
of the house continued to deteriorate.
[13] Despite Dr. Simianu’s recommendations in 2008, Kimbrough did not follow his
instructions to remedy the mold problem. Kimbrough’s insurance would not
pay to fix the damage, and Kimbrough explained that he did not have the
economic means to do so. He also was concerned that he would be destroying
evidence and that this could affect his ability to recover from Anderson’s
insurance company.
[14] The Residence was appraised in February 2009 by real estate broker Bill
Howard (“Howard”) at between $400,000 and $450,000 if no mold damage
existed, but at that point, the house had “really pervasive mold damage.” Tr. p.
685. Howard returned in 2014 to inspect and appraise the Residence and valued
the property at $45,000, which represents the lot value minus tear down costs.
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Kimbrough also did not remove any personal property from the Residence after
the damage occurred, including a sixty-three-piece art collection. Art appraiser,
John Scott Keller (“Keller”) valued half of the collection to be worthless due to
mold contamination.
[15] Professional engineer James Barker (“Barker”) visited the Residence in January
2012 when Kimbrough’s yard was wet due to several days of rain. After
completing an inspection, Barker found no water in the lower level. In March
2012, the Monroe County Assessor removed the Residence from the property
tax roll due to “severe black mold damage.” Tr. p. 578. This determination was
made after Deputy Assessor of Monroe County made a home inspection and
noted that the Residence was “unlivable.” Tr. p. 579. As a result, by the time
Dr. Simianu returned in 2013 to take air samples, the overall mold condition
had worsened. Dr. Simianu again suggested remediation, but when he returned
in 2014, he noticed the mold was even worse than the previous year. By this
point, the cost of remediation was much higher6 than when Dr. Simianu first
suggested it in 2008.
[16] On August 21, 2012, Kimbrough filed a complaint in Monroe Circuit Court
against Anderson, alleging negligence and other civil torts. Specifically,
Kimbrough alleged that between 2008 and 2011, Anderson’s watering habits
caused mass amounts of water to flow from her yard into the lower level of the
6
Dr. Simianu estimated that it would cost $60,000 to remediate a six hundred square foot area by this point.
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Residence. On December 10, 2012, Anderson filed her answer, asserting the
affirmative defenses comparative fault and failure to mitigate.
[17] Civil engineer Christopher Weil7 (“Weil”) visited the Residence in September
2014 to determine the cause of the water damage in Kimbrough’s lower level.
Weil observed silt that was left in the interior of the lower level, which indicated
a significant amount of water pressure against the south wall of the Residence
caused by oversaturated soil. After investigation and review of Anderson’s
water usage records, Weil concluded that the only way for the soil near the
south basement to become that saturated was due to overwatering by
Anderson.
[18] Robin Guyton (“Guyton”), receivables manager at City of Bloomington
Utilities, explained that Anderson’s water usage was higher in the summer
months due to watering and indicated that Anderson had an issue with a
running toilet at the same time. Anderson also explained that she used more
water in the summer months because she loved “green lawns” and her family
stayed at her home for longer periods of time when the children were out of
school and due to her late husband’s illness. Tr. pp. 887-88.
[19] Licensed contractor and home inspector, Leonard Murrell (“Murrell”) also
visited the Residence in 2014. Murrell identified numerous maintenance issues
outside of the Residence, including: blocked gutters, roots growing up next to
7
Weil is referred to throughout the transcript as “Wyle.”
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the foundation, a crack in the block of the basement window well, debris in the
window well, and a hole in the mortar joint. Murrell explained that these issues
could allow water to infiltrate into the wall and then into the foundation.
Specifically, Murrell believed that the water was entering through the cracked
block and suggested that the Residence could benefit if a sump pump was
installed. At this time, he estimated the cost to repair the damage to the lower
level at $57,626.45. Tr. p. 928.
[20] Hydrogeologist8, Sally Letsinger, Ph.D. (“Dr. Letsinger”) also was consulted to
determine what caused water to infiltrate the lower level of the Residence. Dr.
Letsinger focused on detailed elevation information to study the drainage
characteristics, detailed soil information to determine the absorptive and
infiltration properties of the neighborhood, and weather information during the
time period at issue. Based on her study, Dr. Letsinger concluded that the
irrigation use coming from Anderson’s property was reasonable and that during
summer months subsurface water migration is unlikely to occur due to the
water being taken in by plants and soil. Further, she noted that sprinkler water
would not have behaved any differently than rain water. Dr. Letsinger
attributed the cause of water infiltration problems at the Residence to poorly
installed drains around the perimeter or foundation of the house, lack of a sump
pump, poor grading, or poorly maintained gutters.
8
Hydrogeologists study the movement of water.
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[21] Prior to trial, both Kimbrough and Anderson filed numerous motions in
limine.9 Anderson filed her first motion on May 29, 2015, and third motion on
June 4, 2015, seeking to preclude any evidence of her liability insurance at trial.
Anderson’s first motion generally sought to exclude evidence of insurance
under Indiana Evidence Rule 411, while her third motion specifically sought to
exclude testimony from Anderson’s insurance company that they instructed
Kimbrough not to remove damaged items from the Residence, mitigate
damages, or destroy evidence under Indiana Evidence Rules 411 and 403.
Kimbrough responded that he should be permitted to introduce this testimony
to rebut Anderson’s affirmative defense that he failed to mitigate damages.
[22] On June 11, 2015, the trial court granted Anderson’s motions in part with
respect to references about insurance and denied them in part, allowing
Kimbrough to offer evidence of statements made by a representative of
Anderson’s insurance company after December 31, 2007. The next day,
Anderson filed a motion to reconsider the court’s rulings on her first and third
motions in limine.
[23] The five-day jury trial began on June 15, 2015, with arguments regarding
Anderson’s motion to reconsider outside the presence of the jury. Kimbrough
made an offer of proof of his proposed testimony of claims adjustor, Thomas
9
Only Anderson’s first and third motions in limine and Kimbrough’s third Motion in limine are relevant to
this appeal.
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Best10 (“Best”). The trial court then granted Anderson’s motion to reconsider its
ruling on Anderson’s first and third motions in limine. On June 17, 2015,
Kimbrough filed a motion to reconsider on this issue, and the trial court denied
it.
[24] On June 18, 2015, Kimbrough filed a third motion in limine, seeking to exclude
evidence regarding his 2006 home insurance claim stemming from water
damage in his basement due to privilege. Both parties made arguments outside
the presence of the jury, and the trial court concluded that the information was
not privileged, allowing the file to later be admitted into evidence. The same
day, Kimbrough made an oral motion in limine to exclude the introduction of
Anderson’s expert report prepared by Dr. Letsinger. Kimbrough argued that
unless Dr. Letsinger read the entire report “word for word” that it was
inadmissible hearsay. Tr. p. 966. The trial court denied Kimbrough’s motion,
and Dr. Letsinger’s report was later admitted into evidence.
[25] Both parties submitted proposed jury instructions on June 18, 2015, as well. On
June 19, 2015, the trial court heard arguments on the proposed final
instructions. Kimbrough made objections to instruction numbers 8, 9, and 10.
The trial court overruled Kimbrough’s objections to instruction numbers 8 and
9. That same day, after both parties finished presenting evidence, Kimbrough
filed a motion for judgment on the evidence relating to Anderson’s affirmative
10
Throughout the transcript, Best is incorrectly referred to as “Betts.”
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defenses of Kimbrough’s comparative fault and failure to mitigate damages.
This motion was argued outside the presence of the jury. The trial court denied
the motion and determined that the evidence presented at trial created questions
of fact that were for the jury to decide. After deliberations, the jury returned a
verdict in favor of Anderson, concluding that she was not at fault for the
damage to the Residence. The trial court entered judgment on June 24, 2015.
Kimbrough now appeals.
Trial Court’s Admission and Exclusion of Evidence
[26] Kimbrough argues that the trial court erred in excluding comments made by
Anderson’s insurance adjustor, in admitting Kimbrough’s prior home insurance
claim file, and in admitting an expert report submitted by Anderson. The
decision to admit or exclude evidence lies within the sound discretion of the
trial court, and we will not disturb the trial court’s decision absent a showing of
an abuse of that discretion. Weigel v. Weigel, 24 N.E.3d 1007, 1010 (Ind. Ct.
App. 2015). A trial court abuses its discretion only if its decision is clearly
against the logic and effect of the facts and circumstances before the court.
Speybroeck v. State, 875 N.E.2d 813, 818 (Ind. Ct. App. 2007).
[27] Even if an evidentiary decision is an abuse of discretion, we will not reverse if
the ruling constituted harmless error. Techna-Fit, Inc. v. Fluid Transfer Prods., Inc.,
45 N.E.3d 399, 411 (Ind. Ct App. 2015) (citing Spaulding v. Harris, 914 N.E.2d
820, 829-30 (Ind. Ct. App. 2009), trans. denied). An error is harmless when the
probable impact of the erroneously admitted or excluded evidence on the
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factfinder, in light of all the evidence present, is sufficiently minor so as not to
affect a party’s substantial rights. Crider v. Crider, 15 N.E.3d 1042, 1061 (Ind. Ct.
App. 2014), trans. denied; Ind. Trial Rule 61.
A. Anderson’s Insurance Adjustor’s Comments
[28] Kimbrough specifically contends that the trial court erred in excluding
comments made to Kimbrough by insurance adjustor Best because it incorrectly
applied Indiana Evidence Rule 411 and failed to make an Indiana Evidence
Rule 403 determination. Under Indiana Evidence Rule 411,
Evidence that a person was or was not insured against liability is
not admissible to prove whether the person acted negligently or
otherwise wrongfully. But the court may admit this evidence for
another purpose, such as proving a witness’s bias or prejudice or
proving agency, ownership, or control.
The purpose of Rule 411 is “to prevent juries from inferring fault or
calculating damages based on parties’ liability coverage or lack thereof.
Spaulding v. Harris, 914 N.E.2d 820, 830 (Ind. Ct. App. 2009).
Notwithstanding the general bar imposed by Rule 411, insurance
evidence may be admitted for other purposes other than implying fault or
influencing damage awards. Id. Rule 411 provides a non-exhaustive list
of permissible purposes, but “[t]he number of possible alternative uses of
the existence or nonexistence of liability insurance evidence is, of course,
unlimited.” Id. at 830-31.
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[29] “If the evidence is offered for a purpose not prohibited by Rule 411,
admissibility is governed by the balancing test of Rule 403, and exclusion may
be appropriate if the fact to be proven is not in genuine dispute.” Id. at 831.
Indiana Evidence Rule 403 provides that “[a]lthough relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, or needless presentation of cumulative
evidence.” Id.
[30] Despite Kimbrough’s assertion that the trial court did not make a Rule 403
determination, the court stated:
[T]he problem with admitting this testimony is then we’re
injecting the insurance issue into the case when the, the question
is supposed to be what did the parties do, not what the insurers
might have done. I don’t think its objectively reasonable for, um,
Mister Kimbrough to rely on instructions from an insurance
adjustor, especially when he has a lawyer representing him. . .
Um, was it, would it be reasonable for Mister Kimbrough to
continue to rely on, ah, ah, a statement from his adversary in the
insurance company, for, ah four years while he’s represented by
all of these lawyers? I don’t think it would be, but the only reason
I’m considering that at all is because I’m trying to balance that
against the, ah, the evidence rule that excludes evidence of
insurance. So, if we ignore that evidence rule or disregard it, find
that something else is more important, what is that more
important thing? It, it may be that it explains why Mister
Kimbrough apparently took no steps to repair his house, but
certainly he doesn’t act on instructions from the insurance
company. They can make suggestions. They can tell him their
terms. He’s not compelled to follow them. Ah, there, there’s
simply no good reason to disregard the basic rule that we don’t
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talk about insurance. Well, you know, we don’t inject insurance
into this controversy, and there’s no way to do this without
making that a central issue instead of a subsidiary issue.
Tr. pp. 176-78.
[31] We conclude that in its discretion, the trial court conducted a Rule 403
balancing and determined that admitting Best’s testimony would confuse the
issues and mislead the jury. Therefore, we cannot say that this decision is
clearly against the logic and effect of the facts and circumstances that were
before the court and is not an abuse of discretion.
B. Kimbrough’s 2006 Home Insurance Claim File
[32] Kimbrough also argues that his 2006 home insurance claim file regarding water
damage in the lower level was privileged and therefore inadmissible under
Richey v. Chappell, 594 N.E.2d 443 (Ind. 1992). In that case, the Richeys were
involved in an automobile accident with Chappell and brought a claim against
him a couple of years later. Chappell made a statement to his insurance
company about the accident after it occurred, and the Richeys sought to
discover the statement during the course of litigation. Our supreme court held
that where a policy of insurance requires an insurer to defend claims against the
insured, statements from the insured to the insurer concerning an occurrence
which may be the basis of a claim by a third party are protected from disclosure.
Id. at 447. Richey’s application is limited to situations where an insurer is
required to defend the insured in an action by a third party.
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[33] Here, Kimbrough’s insurance company was not defending him in an action by
a third party. Rather, Kimbrough sued Anderson on an entirely unrelated
incident and the claim file was related to water damage from 2006 in the
basement of the Residence. Kimbrough’s statements to his insurance company
would have been privileged if it had to defend Kimbrough in the claim arising
from 2006, but this is simply not the case. We therefore conclude that the 2006
claim file was not privileged and the trial court did not abuse its discretion in
admitting it into evidence.
C. Dr. Letsinger’s Expert Report
[34] Kimbrough also contends Dr. Letsinger’s expert report was inadmissible
hearsay because it was prepared in anticipation of litigation. Hearsay is an out-
of-court statement offered to prove the truth of the matter asserted therein,
which rests on the credibility of the out-of-court declarant who is unavailable
for cross-examination. Miller v. State, 575 N.E.2d 272, 274 (Ind. 1991). If the
challenged evidence is hearsay, then it is inadmissible unless it meets one of the
exceptions to the hearsay rule. Ind. Evidence Rule 802. Under Indiana
Evidence Rule 703:
An expert may base an opinion on facts or data in the case that
the expert has been made aware of or personally observed.
Experts may testify to opinions based on inadmissible evidence,
provided that it is of the type reasonably relied upon by experts in
the field.
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[35] “The erroneous admission of hearsay evidence does not automatically
constitute reversible error.” Miller, 575 N.E.2d at 275. Appellate Rule 66(A)
provides the harmless error standard:
No error or defect in any ruling or order or in anything done or
omitted by the trial court of by any of the parties is ground for
granting relief or reversal on appeal where its probable impact, in
light of all the evidence in the case, is sufficiently minor so as not
to affect the substantial rights of the parties.
[36] We agree that Dr. Letsinger’s report contained an out-of-court statement
offered to prove that Anderson’s watering did not cause damage to the
Residence and as such is inadmissible hearsay. However, Dr. Letsinger’s
testimony was admissible under Indiana Evidence Rule 703. We also note that
Dr. Letsinger’s report is a complex forty-four-page hydrologic analysis that she
explained to the jury in her testimony. Without Dr. Letsinger’s testimony, the
average lay person could not begin to interpret these results. Further, contractor
and home inspector Murrell identified the same maintenance issues with the
Residence that could have caused water infiltration problems as Dr. Letsinger.
Based on this evidence, we conclude that the trial court’s admission of Dr.
Letsinger’s report constituted harmless error.
Motion for Judgment on the Evidence
[37] Kimbrough further argues that the trial court erred in denying his motions on
the evidence as to Anderson’s affirmative defenses. The purpose of a motion for
judgment on the evidence is to test the sufficiency of the evidence. Zemco Mfg.,
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Inc., v. Pecoraro, 703 N.E.2d 1064, 1071 (Ind. Ct. App. 1998). The grant or
denial of a motion for judgment on the evidence is within the broad discretion
of the trial court and will be reversed only for an abuse of that discretion. Id.
Indiana Trial Rule 50(A) provides:
Where all or some of the issues in a case tried before a jury or an
advisory jury are not supported by sufficient evidence or a verdict
thereon is clearly erroneous as contrary to the evidence because
the evidence is insufficient to support it, the court shall withdraw
such issues from the jury and enter judgment thereon or shall
enter judgment thereon notwithstanding a verdict.
[38] When we review a trial court’s ruling on a motion for judgment on the
evidence, we are bound by the same standard as the trial court. Faulk v.
Nw. Radiologists, P.C., 751 N.E.2d 233, 238 (Ind. Ct. App. 2001) (citing
Campbell v. El Dee Apartments, 701 N.E.2d 616, 619 (Ind. Ct. App. 1998)).
We may not substitute our judgment for that of the jury on questions of
fact nor should a motion for judgment on the evidence be granted
because the evidence preponderates in favor of the moving party. Id.
Rather we determine only: (a) whether there exists any reasonable
evidence supporting the claim; and (b) if such evidence does exist,
whether the inference supporting the claim can be drawn without undue
speculation. Id.
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A. Affirmative Defense of Comparative Fault for Pre-Injury Conduct
[39] Specifically, Kimbrough argues that the evidence presented to the jury did not
sufficiently show that Kimbrough unreasonably failed to avoid an injury or to
mitigate damages before his injury, so Anderson should not have been able to
assert comparative fault as a defense. He also argues that he had no way to
avoid the water intrusion incidents allegedly caused by Anderson and that the
prior water problems did not cause permanent or extensive damage to the
Residence.
[40] The Indiana Comparative Fault Act (“the Act”) governs “any action based on
fault that is brought to recover damages for injury or death to a person or harm
to property.” Ind. Code § 34-51-2-1. In an action based on fault that is brought
against one defendant, the claimant is barred from recovery if the claimant’s
contributory fault is greater than the fault of all persons who fault proximately
contributed to the claimant’s damages. Ind. Code § 34-51-2-6(a)(1). For
purposes of the Act under Indiana Code section 34-6-2-45(b),
Fault includes any act or omission that is negligent, willful,
wanton, reckless, or intentional toward the person or property of
others. The term also includes unreasonable assumption of risk
not constituting an enforceable express consent, incurred risk,
and unreasonable failure to avoid an injury or to mitigate
damages.
[41] In Kocher v. Getz, our supreme court held that, “[i]n cases arising under the
[Comparative Fault] Act, a defense of damages based on a plaintiff’s acts or
omissions occurring after an accident or initial injury is not properly included in
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the determination and allocation of fault under the Act.” 824 N.E.2d 671, 674
(Ind. 2005). Further, “[t]he phrase ‘unreasonable failure to avoid an injury or to
mitigate damages’ included in the definition of fault under Indiana Code
section 34-6-2-45(b) applies only to a plaintiff’s conduct before an accident or
initial injury. An example of such unreasonable failure to avoid an injury or to
mitigate damages would be a claimant’s conduct in failing to exercise
reasonable care in using appropriate safety devices, e.g., wearing safety goggles
while operating machinery that presents a substantial risk of eye damage.” Id. at
674-75. Therefore, we will only consider the evidence presented relating to
Kimbrough’s pre-injury conduct to determine if the trial court properly denied
Kimbrough’s motion for judgment on the evidence on Anderson’s comparative
fault defense.
[42] The trial court admitted evidence from Kimbrough’s 2006 home insurance
claim file, indicating that the lower level of the Residence contained mold even
before that water incident. Further, Anderson presented testimony from home
inspector Murrell who explained that there were numerous maintenance issues
with the Residence that could allow water to infiltrate into the wall and then
into the foundation. Expert hydrogeologist Dr. Letsinger also attributed the
cause of damage to the Residence to poorly installed drains around the
perimeter or foundation of the house, lack of a sump pump, poor grading, or
poorly maintained gutters. This evidence establishes that Kimbrough’s omission
before the alleged watering incidents occurred could have caused water intrusion
in the lower level of the Residence. Based on all of this evidence, we conclude
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that Anderson has presented reasonable evidence to support her comparative
fault defense. Additionally, these inferences can be established without undue
speculation.
B. Affirmative Defense of Failure to Mitigate
[43] Kimbrough further contends that Anderson failed to present evidence to
support her failure to mitigate damages defense. He specifically asserts that
Anderson failed to prove a separate, discrete, identifiable harm caused by
Kimbrough’s alleged unreasonable conduct or how much damage was caused
or proximately caused by this unreasonable conduct.
[44] The obligation of a plaintiff to mitigate damages generally refers to the
expectation that a person who has been injured should act to minimize
damages after an injury-producing incident. Kocher, 824 N.E.2d at 674. The
amount of damages a plaintiff is entitled to recover is reduced by those damages
which reasonable care would have prevented. Foster v. Owens, 844 N.E.2d 216,
221 (Ind. Ct. App. 2006) (citing Willis v. Westerfield, 839 N.E.2d 1179, 1189
(Ind. 2006). The defense of failure to mitigate has two elements: (1) the
defendant must prove that the plaintiff failed to exercise reasonable care to
mitigate his or her post-injury damages; and (2) the defendant must prove that
the plaintiff’s failure to exercise reasonable care caused the plaintiff to suffer an
identifiable harm not attributable to the defendant’s negligent conduct. Id. It is
not enough to establish that the plaintiff acted unreasonably. Id. The defendant
must establish “resulting identifiable quantifiable additional injury.” Id.
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[45] In the record before us is evidence from Kimbrough’s home insurance claim of
a prior water incident in the lower level of the Residence that occurred in 2006.
The cleaning and repair report indicated that mold was present before the 2006
incident. Further, Kimbrough consulted environmental consultant Dr. Simianu,
who urged Kimbrough to identify the source of the moisture and remove it in
2008, after the first water intrusion at issue in this lawsuit occurred. Instead of
following Dr. Simianu’s recommendation, Kimbrough moved out of the
Residence and did not remediate the damage.
[46] As a result, in 2012, the Residence was taken off of the Monroe County tax roll
due to severe black mold damage. Kimbrough continued to travel and leave the
Residence without supervision, even after being aware of the water intrusion
problems, nor did he remove any of his personal belongings or sixty-three-piece
art collection, allowing the items to be infiltrated by mold and essentially
rendered valueless. When Dr. Simianu returned in 2013 and 2014, the damage
had worsened significantly. He testified that it would now cost much more to
remediate the mold damage than when he first collected air samples in 2008.
[47] Even though Dr. Simianu was Kimbrough’s witness, his testimony established
that Kimbrough failed to exercise reasonable care to mitigate post-injury
damages and that Kimbrough’s failure caused him to suffer an identifiable harm
not attributable to Anderson’s negligent conduct. Although Kimbrough cleaned
up the lower level to the best of his personal ability, the problem needed to be
remedied by completely removing the source of moisture and waterproofing his
basement to eliminate future water infiltration problems.
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[48] If Kimbrough had followed Dr. Siminau’s recommendation, he would have
likely not had to move out of the Residence and his art collection and personal
property would not have been completely destroyed. What started out as a
small mold problem turned into pervasive mold damage, evidenced by the
Residence being removed from the tax roll. Even if Anderson’s watering was
determined to cause the water damage, Kimbrough’s failure to at the very least
remove his personal belongings and art collection caused him to suffer an
identifiable harm not related to Anderson’s conduct.
[49] Reasonable evidence supports Anderson’s failure to mitigate defense and these
inferences can be established without undue speculation. We therefore conclude
that the trial court did not err when it denied Kimbrough’s motion for judgment
on the evidence in regard to both of Anderson’s affirmative defenses. These
issues were supported by sufficient evidence and the court properly left these
questions of fact to the jury.
Jury Instructions
[50] Kimbrough argues that the trial court erred in instructing the jury. The manner
of instructing a jury is left to the sound discretion of the trial court. Callaway v.
Callaway, 932 N.E.2d 215, 222 (Ind. Ct. App. 2010). Its ruling will not be
reversed unless the instructional error is such that the jury misstates the law or
otherwise misleads the jury. Id. Jury instructions must be considered as a whole
and in reference to each other. Id. at 222-23. In reviewing a trial court’s decision
to give or refuse a tendered instruction, we consider: (1) whether the instruction
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correctly states the law; (2) whether there is evidence in the record to support
giving the instruction; and (3) whether the substance of the tendered instruction
is covered by the other instructions that are given. Id. at 223. To determine
whether sufficient evidence exists to support an instruction, we will only look to
that evidence most favorable to the appellee and any reasonable inferences to be
drawn therefrom. Foddrill v. Crane, 894 N.E.2d 1070, 1078 (Ind. Ct. App. 2008),
trans. denied. Finally, “when a jury is given an incorrect instruction on the law,
we will not reverse the judgment unless the party seeking a new trial shows ‘a
reasonable probability that substantial rights of the complaining party have been
adversely affected.’” Id. (citations omitted).
A. Final Instruction Number 8
[51] Kimbrough argues that final instruction number 8 is an incorrect and
incomplete statement of the law and is unsupported by the evidence. Instruction
number 8 provided:
Failure to avoid damages means the plaintiff’s unreasonable
failure to take some action that would have avoided the damage
for which he complains. Plaintiff may not recover for any item of
damage that could have been avoided through the use of
reasonable care.
Appellant’s App. p. 120.
[52] Although, we agree that final instruction number 8 on its own is an incomplete
statement of the law regarding failure to mitigate, jury instructions must be
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considered as a whole and in reference to each other. Callaway, 932 N.E.2d at
222-23. In final instruction number 1111, the trial court instructed the jury:
The Defendant bears the burden of proving both elements of the
affirmative defense of post-injury failure to mitigate damages: (1)
that the Plaintiff failed to exercise reasonable care to mitigate his
or her post-injury damages, and (2) that the Plaintiff’s failure to
exercise reasonable care caused the Plaintiff to suffer an
identifiable item of harm not attributable to the Defendant’s
negligent conduct.
Appellant’s App. p. 123; Tr. p. 1150. One element that we must consider
in our review is whether the substance of the tendered instruction is
covered by the other instructions that are given. Taken together, we
conclude that final instruction numbers 8 and 11 are a correct and
complete statement of the law.
[53] Our more general discussion of the affirmative defense of failure to mitigate
applies here, as well. See supra at pp. 20-23. For all of these reasons, final
instruction number 8 was supported by sufficient evidence.
B. Final Instruction Number 9
[54] Similarly, Kimbrough asserts that final instruction number 9 is unsupported by
the evidence. Instruction number 9 stated:
11
In the transcript, the trial court did not assign numbers to the final instructions, but the instruction is
labeled as such in Kimbrough’s Appendix. See Appellant’s App. p. 123; Tr. p. 1150.
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The phrase “unreasonable failure to avoid an injury” applies to a
claimant’s conduct before an alleged incident. An example of
unreasonable failure to avoid an injury would be a claimant’s
conduct in failing to exercise reasonable care in using appropriate
safety devices, e.g. wearing safety glasses while operating
machinery that presents a substantial risk of eye damage. If you
find the Plaintiff committed some act or omission that constitutes
unreasonable failure to avoid an injury then you should
determine what percentage of fault should be allocated to
Plaintiff.
Appellant’s App. p. 121.
[55] As with final instruction number 8, our more general discussion of the
affirmative defense of comparative fault for pre-injury conduct applies here. See
supra at pp. 19-20. For the same reasons we concluded that the evidence
evidence presented at trial was sufficient to support Anderson’s comparative
fault defense, and final instruction number 9 is likewise supported by sufficient
evidence.
Conclusion
[56] For all of these reasons, we conclude that the trial court did not abuse its
discretion in precluding testimony from Anderson’s insurance company
regarding instructions given to Kimbrough, in admitting Kimbrough’s prior
home insurance claim file, and in admitting one of Anderson’s expert reports
into evidence. Further, the trial court did not abuse its discretion in denying
Kimbrough’s motion for judgment on the evidence on two of Anderson’s
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affirmative defenses or in instructing the jury with final instructions number 8
and number 9.
[57] Affirmed.
Vaidik, C.J., and Barnes, J., concur.
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