Man loses “Home Damage Appeal” That blamed Neighbor’s Watering
Dave Stafford for www.theindianalawyer.com
A man whose Monroe County home was lost to mold contamination lost his appeal of a jury verdict in favor of his neighbor. The homeowner had claimed his neighbor’s excessive watering of her lawn caused water damage to the basement of his home.
David Kimbrough sued Ramona Anderson in August 2012, alleging that her watering habits caused mass amounts of water to flow from her yard into the lower level of his home over a period of years. But by that time, the home had fallen into such disrepair that the Monroe County Assessor removed the residence form the tax roll due to “severe black mold damage.â€Â Kimbrough also lost an art collection that an appraiser valued as worthless due to mold contamination.
The jury returned a verdict for Anderson after hearing testimony that included witnesses who testified there were numerous maintenance issues with Kimbrough’s residence that could allow water to infiltrate into the wall and then into the foundation. Another of Anderson’s witnesses, a hydrogeologist, attributed the cause of damage to poorly installed drains around the foundation, lack of a sump pump, poor grading, or poorly maintained gutters.
Kimbrough argued much of that evidence should not have been admitted, nor should the jury have known about an insurance claim he filed for water damage at the house in 2006, before Anderson moved there. Mold problems at the home were first detected then. He also said the jury was improperly instructed on Anderson’s affirmative defense arguments of Kimbrough’s comparative fault and failure to mitigate.
In David L. Kimbrough v. Ramona F. Anderson, 53A05-1507-PL-883, the panel affirmed the jury verdict. “(W)e 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,” Judge Paul Mathias wrote for the court. “Further, the trial court did not abuse its discretion in denying Kimbrough’s motion for judgment on the evidence on two of Anderson’s affirmative defenses or in instructing the jury.”
