David L. Kimbrough v. Ramona F. Anderson
2016 Ind. App. LEXIS 161
| Ind. Ct. App. | 2016Background
- Kimbrough owned a Bloomington house with a history of basement water intrusion and mold; multiple water incidents occurred from 2001–2011 and a significant 2006 insurance claim documented preexisting mold.
- Adjacent neighbor Anderson watered her yard frequently in summers; Kimbrough alleged her overwatering (including sprinkler use) between 2008–2011 caused repeated basement flooding and mold, and sued her in 2012.
- Experts and inspectors disagreed on causation: plaintiff’s civil engineer blamed oversaturated soil from neighbor irrigation; defendant’s hydrogeologist attributed infiltration to poor foundation drainage, grading, gutters, and lack of a sump pump.
- Kimbrough did not remediate the mold after early warnings from his environmental consultant (Dr. Simianu) and eventually moved out; remediation costs and property/value loss escalated over time.
- At trial, the court excluded proposed testimony from Anderson’s insurer about instructions to Kimbrough, admitted Kimbrough’s 2006 insurance claim file and Dr. Letsinger’s (defense) expert report; the jury found for Anderson.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of insurer adjustor’s comments (Rule 411/403) | Kimbrough argued the insurer’s statements were admissible to rebut Anderson’s failure-to-mitigate defense. | Anderson argued insurance evidence is inadmissible to prove fault and would confuse the jury. | Court affirmed exclusion: judge performed Rule 403 balancing and excluded as prejudicial/confusing under Rule 411. |
| Admission of Kimbrough’s 2006 insurance claim file (privilege) | Kimbrough argued the file was privileged under Richey v. Chappell and thus inadmissible. | Anderson argued Richey privilege applies only when insurer defends insured against third-party claims; not present here. | Court affirmed admission: Richey inapplicable because insurer was not defending Kimbrough in a third-party action. |
| Admission of Dr. Letsinger’s expert report (hearsay/Rule 703) | Kimbrough argued the written report was hearsay and prepared for litigation, so inadmissible. | Anderson argued Dr. Letsinger’s live testimony and Rule 703 allowed reliance on such materials; report aided jury understanding. | Court held report was hearsay but its admission was harmless because Dr. Letsinger testified and her opinion was admissible under Rule 703; corroborating evidence existed. |
| Denial of motion for judgment on the evidence re: comparative fault (pre-injury conduct) | Kimbrough argued no reasonable evidence supported that his pre-injury omissions contributed to damage, so comparative-fault defense should be withdrawn. | Anderson pointed to prior mold, maintenance defects, and expert opinion showing preexisting conditions as possible causes. | Court affirmed denial: sufficient evidence (prior claim, inspectors, hydrogeologist) supported comparative-fault issue for jury. |
| Denial of motion for judgment on the evidence re: failure to mitigate (post-injury conduct) | Kimbrough argued Anderson failed to show how his post-injury inaction caused identifiable, quantifiable additional harm. | Anderson cited Dr. Simianu’s advice, Kimbrough’s failure to remediate or remove belongings, and worsening mold/tax-roll removal as resulting harm. | Court affirmed denial: evidence supported both elements of failure-to-mitigate (unreasonable inaction and identifiable additional harm). |
Key Cases Cited
- Weigel v. Weigel, 24 N.E.3d 1007 (Ind. Ct. App.) (trial court’s evidentiary rulings reviewed for abuse of discretion)
- Spaulding v. Harris, 914 N.E.2d 820 (Ind. Ct. App.) (purpose and limits of Evidence Rule 411; Rule 403 balancing)
- Richey v. Chappell, 594 N.E.2d 443 (Ind.) (privilege for insured’s statements to insurer when insurer is required to defend in third-party action)
- Kocher v. Getz, 824 N.E.2d 671 (Ind.) (comparative-fault statute: pre-injury conduct vs. post-injury mitigation; scope of "unreasonable failure to avoid an injury")
- Miller v. State, 575 N.E.2d 272 (Ind.) (hearsay and harmless-error principles concerning admission of out-of-court statements)