                                                                               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




      Court of Appeals of Indiana | Opinion 53A05-1507-PL-883 | May 20, 2016                      Page 1 of 27
      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.

      Court of Appeals of Indiana | Opinion 53A05-1507-PL-883 | May 20, 2016                        Page 2 of 27
      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.

      Court of Appeals of Indiana | Opinion 53A05-1507-PL-883 | May 20, 2016                       Page 3 of 27
      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.

      Court of Appeals of Indiana | Opinion 53A05-1507-PL-883 | May 20, 2016                          Page 4 of 27
       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.

       Court of Appeals of Indiana | Opinion 53A05-1507-PL-883 | May 20, 2016                           Page 5 of 27
       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.


       Court of Appeals of Indiana | Opinion 53A05-1507-PL-883 | May 20, 2016   Page 6 of 27
       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.

       Court of Appeals of Indiana | Opinion 53A05-1507-PL-883 | May 20, 2016                             Page 7 of 27
       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.”

       Court of Appeals of Indiana | Opinion 53A05-1507-PL-883 | May 20, 2016    Page 8 of 27
       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.

       Court of Appeals of Indiana | Opinion 53A05-1507-PL-883 | May 20, 2016   Page 9 of 27
[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.

       Court of Appeals of Indiana | Opinion 53A05-1507-PL-883 | May 20, 2016                        Page 10 of 27
       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.”

       Court of Appeals of Indiana | Opinion 53A05-1507-PL-883 | May 20, 2016        Page 11 of 27
       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


       Court of Appeals of Indiana | Opinion 53A05-1507-PL-883 | May 20, 2016      Page 12 of 27
       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.


       Court of Appeals of Indiana | Opinion 53A05-1507-PL-883 | May 20, 2016      Page 13 of 27
[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
       Court of Appeals of Indiana | Opinion 53A05-1507-PL-883 | May 20, 2016     Page 14 of 27
               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.


       Court of Appeals of Indiana | Opinion 53A05-1507-PL-883 | May 20, 2016    Page 15 of 27
[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.




       Court of Appeals of Indiana | Opinion 53A05-1507-PL-883 | May 20, 2016    Page 16 of 27
[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.,


       Court of Appeals of Indiana | Opinion 53A05-1507-PL-883 | May 20, 2016      Page 17 of 27
       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.




       Court of Appeals of Indiana | Opinion 53A05-1507-PL-883 | May 20, 2016    Page 18 of 27
       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


       Court of Appeals of Indiana | Opinion 53A05-1507-PL-883 | May 20, 2016    Page 20 of 27
       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.


       Court of Appeals of Indiana | Opinion 53A05-1507-PL-883 | May 20, 2016     Page 21 of 27
[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.

       Court of Appeals of Indiana | Opinion 53A05-1507-PL-883 | May 20, 2016    Page 22 of 27
[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


       Court of Appeals of Indiana | Opinion 53A05-1507-PL-883 | May 20, 2016      Page 23 of 27
       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



       Court of Appeals of Indiana | Opinion 53A05-1507-PL-883 | May 20, 2016   Page 24 of 27
       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.

       Court of Appeals of Indiana | Opinion 53A05-1507-PL-883 | May 20, 2016                                Page 25 of 27
               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



       Court of Appeals of Indiana | Opinion 53A05-1507-PL-883 | May 20, 2016   Page 26 of 27
       affirmative defenses or in instructing the jury with final instructions number 8

       and number 9.

[57]   Affirmed.


       Vaidik, C.J., and Barnes, J., concur.




       Court of Appeals of Indiana | Opinion 53A05-1507-PL-883 | May 20, 2016   Page 27 of 27
