Titan Custom Cabinet, Inc. v. Advance Contracting, Inc.

²¹³ DAVIS, J. Appellants, Titan Custom Cabinet and Johansson Corporation, appeal from the denial of a Motion for New Trial entered by the Circuit Court for Baltimore City (Ross, J.) on September 23, 2006. This appeal arises out of a tort claim, in which appellants allege that appellees, Advance Contracting, Inc. and Timothy Nickels, negligently repaired the roof of appellants’ premises, thereby clogging a roof drain that ultimately resulted in a flood of their premises. On March 18, 2005, appellants filed suit against appellees in the Circuit Court for Baltimore City; appellees answered the Complaint on May 6, 2005. Appellees then filed a Third Party Complaint on August 9, 2005 against Crown Industrial Park (Crown), the owner of the property where appellants’ premises are located.

Crown, however, was never served with the Third Party Complaint. On September 21, 2005, the Third Party Complaint was amended to add Wayne Kirchner, the property manager of Crown, as a defendant/third-party plaintiff. The Amended Third Party Complaint alleged that Kirchner’s negligence caused or contributed to the flood and, thus, he should be liable for any damages awarded to appellants. Kirchner filed his Answer on December 19, 2005.

Prior to the commencement of trial, appellants and appellees agreed to a jury trial on the issue of liability only. On August 30, 2006, a three-day trial began. At the conclusion of the third day, the jury returned a judgment in favor of appellees. Thereafter, appellants filed a timely Motion for New Trial and for Judgment Notwithstanding the Verdict.

The Motion was denied on September 23, 2006. This timely appeal followed, presenting for this Court three questions, which we have rephrased as follows: 1 ²¹⁴ 1. Did the trial court err in permitting cross-examination of appellants’ witnesses with prior inconsistent statements made to their property insurance carrier and regarding their relationship with their property insurance carrier? 2. Did the trial court err in admitting certified copies of weather reports from Baltimore-Washington International Airport to show rain accumulations? 3.

Did the trial court err in denying appellants’ Motion for New Trial? We answer the questions presented in the negative and, accordingly, affirm the judgment of the trial judge. FACTUAL BACKGROUND Since 1997, appellants have occupied a commercial leasehold space at 56N of the Crown Industrial Park located on Eastern Avenue in Baltimore, Maryland. Crown is the owner and landlord of this property located within the Crown Industrial Park.

The building at 56N has an “A” frame roof, in which the center line of the roof runs parallel to the front of the building. There are other buildings in the industrial park which adjoin appellants’ premises on both sides and in the back. Consequently, when water falls on the back part of the roof, the water flows downward, until it accumulates at the bottom of the roof. As a result, two drains were installed in the low area of the back portion of the roof to allow any accumulated water to drain.

During the winter of 2001 to 2002, appellants’ premises, located below the low point on the back of the roof, began to leak. For the thirty years preceding this leak, Crown had not ²¹⁵ experienced any roofing problems. After being notified of the leak, Kirchner told Anders Johansson, the president and principal of both appellants, that permanent repair work would need to be completed during the spring. In the meantime, a temporary system of troughs was put into place to catch the leaking water.

By mid-April of 2002, Crown had contracted with appellees to repair the roof. Thereafter, appellees installed an asphalt roof on the 56N building including the area near the drains. George Harris, one of appellees’ employees, supervised the job and performed much of the work. He testified that the drains on the roof were protected during the repair work with the use of “microsopic/KWRAPD,” a roofing industry product, commonly referred to as a “mop head or yard.” These protective products were placed over the drains to prevent clogging.

One of the drains, however, was clogged prior to appellees beginning work. Appellees notified Crown of this clogged drain and were told by Crown that it would take care of the problem. On April 15, 2002, appellees completed the job without incident. On May 2, 2002, after a heavy rainfall, Preston Fulk, one of appellants’ employees, reported water leaking along the back wall of the premises that had formed into a pool of water approximately eight inches deep.

The employee began moving equipment and materials away from the water and called Johansson to inform him of the leak. Johansson instructed the employee to contact Kirchner. Kirchner went onto the roof of the building to inspect the leak. Near the back wall of the roof, Kirchner found water that was in areas eighteen inches deep.

He also noticed that one of the drains was clogged and subsequently removed approximately two handfuls of debris, including one or two bottles from the drain. When the drain still would not allow water to flow, Kirchner used a piece of wooden molding in an attempt to free the drain. Shortly thereafter, the drain gave way and thousands of gallons of water poured into appellants’ premises. ²¹⁶ Kirehner helped remove the water from appellants’ premises. Afterward, he testified that he found a broken piece of pipe filled with gravel and a mixture of old and new tar.

The following day, Johansson conducted his own investigation of the water damage. Johansson testified that, during his investigation, he observed an elbow joint pipe filled with a mixture of old and new tar lying on the floor below the roof drain in the ceiling. All testimony at trial indicated that the distinction between old and new tar is its color—old tar is gray and oxidized, while new tar is dark black on the outside. During Johansson’s investigation, he took thirty to forty photographs of the scene of the damage and made important notes.

Johansson, however, did not take a photograph of the elbow pipe. The elbow pipe and the notes regarding the elbow pipe were subsequently discarded during clean-up. Three days after the flood, Johansson composed a letter to appellants’ insurer, The Hartford Fire Insurance Company (Hartford), regarding the loss and, in relevant part, wrote: In discussing this claim with ... (our agent) he noted that it is not up for subrogation.

You know as well as I know that the landlord’s appointed manager (Wayne) [Kirehner] poked the hole in the pipe that caused the damage. I like that you subrogate this claim, since it will otherwise stay on my “insurability profile.” A provision in the lease between Crown and appellants, however, barred a direct claim against Crown. During the year following the flood, appellants made a claim under the property damage portion of their Commercial & Comprehensive General Liability (CGL) policy with Hartford. The insurance company paid most of the claim, but failed to pay all of appellants’ business interruption claim.

Appellants subsequently sued Hartford in Baltimore City Circuit Court for the balance of their business interruption loss. Hartford moved the case to federal district court where it claimed that a “Proof of Loss,” which appellants had executed, was an accord and satisfaction of the claim. The federal district court ²¹⁷ agreed and appellants appealed. The appeal was ultimately settled for a nominal amount and Hartford released its subrogation claim as part of the settlement agreement.

Almost three years after the flood, in 2005, appellants brought suit in Baltimore City Circuit Court against appellees. Before trial commenced, the court granted appellants’ Motion to Bifurcate so that no issues would be presented to the jury regarding damages. During the three-day jury trial, appellees, over the objection of appellants, introduced into evidence the letter from Johansson to Hartford. Appellees, also over the objection of appellants, cross-examined appellants’ witnesses regarding that correspondence and the lack of success appellants had achieved in pursuing claims against Crown and Hartford.

In addition, appellants objected to the weather data records compiled by the U.S. Department of Commerce Weather Station at the Baltimore-Washington International Airport that were introduced into evidence without an explanation of an expert witness. On September 1, 2006, the jury returned a verdict for the defendants. Appellants subsequently filed a Motion for New Trial and for Judgment Notwithstanding the Verdict, which was later denied. DISCUSSION I Appellants initially contend that the circuit court erred in allowing appellees to introduce Johansson’s note to Hartford into evidence.

Appellants further aver that the court improperly permitted cross-examination of their witnesses regarding their relationship and insurance coverage with Hartford, thereby violating the collateral source rule. Appellees, in rejoinder, argue that appellants’ witness, Johansson, was properly questioned regarding his prior inconsistent statement contained in the note to Hartford. Appellees also insist that the factual chronology elicited through the cross-examination of appellants’ witnesses regarding appellants’ unsuccessful recovery against Hartford explained appellants’ new motiva ²¹⁸ tion to pursue a claim against appellees almost three years after the flood. Upon our review of the proceedings below, we hold that the trial court did not abuse its discretion in permitting appellants’ witness to be impeached by prior inconsistent statements and we conclude that there was no violation of the collateral source rule.

STANDARD OF REVIEW “Generally, the standard of review with respect to a trial court’s ruling on the admissibility of evidence is that such matters are left to the sound discretion of the trial court and unless there is a showing that the trial court abused its discretion, ‘its [ruling] will not be disturbed on appeal.’ ” Hall v. Univ. of Maryland Med. Sys. Corp., 398 Md. 67, 82 , 919 A.2d 1177 (2007) (quoting Bern-Shaw Ltd. P’ship v. Mayor and City Council of Baltimore, 377 Md. 277, 291 , 833 A.2d 502 (2003)) (brackets in original). The application of that standard depends on “whether the trial judge’s ruling under review was based on a discretionary weighing of relevance in relation to other factors or on a pure conclusion of law.” Bern-Shaw, 377 Md. at 291 , 833 A.2d 502 .

If the trial judge’s ruling involves a pure legal question, we will review the trial court’s ruling de novo. Id.; see also Bernadyn v. State, 390 Md. 1, 8 , 887 A.2d 602 (2005) (concluding that, in a criminal case, the trial court’s decision to admit or exclude hearsay is not discretionary and is thus reviewed de novo). Given that the trial judge’s ruling under our review was based on a discretionary weighing of relevance in relation to other factors, we shall review the legal questions presented at bar using the abuse of discretion standard of review. Moreover, as we reiterated in Lomax v. Comptroller of the Treasury, 88 Md.App. 50, 54 , 591 A.2d 1311 (1991), we will only reverse upon a finding that a trial judge’s determination was “both manifestly wrong and substantially injurious.” PRIOR INCONSISTENT STATEMENT Prior to addressing Johansson’s correspondence with Hartford before the jury, appellees’ counsel approached the bench ²¹⁹ and advised the court of his intention to cross-examine Johansson regarding his prior inconsistent statement made to Hartford, in which he blamed Crown for appellants’ loss and requested legal pursuit of Crown to preserve appellants’ insurance status.

Appellees’ counsel also proffered that he planned to cross-examine Johansson about the fact that there was a three-year delay in any assertion of negligence against appellees; these claims were pursued only after appellants’ claims against Crown and Harford were unfavorably resolved. Appellants objected to the proposed line of cross-examination, protesting that it was “totally improper for a party to bring issues of insurance in a case like this.” The trial judge, however, ruled that this was not an instance where appellees were insinuating that appellants had already been “fully paid.” The court, after reviewing the Johansson correspondence and listening to the arguments of counsel, found that “the critical issue of the case” was whether Johansson did in fact observe an elbow joint pipe clogged with fresh tar lying on the ground the day following the flood. Consequently, the court permitted the cross-examination of Johansson regarding his inconsistent statements and the fact that appellants waited three years before initiating suit against appellees. The court, sua sponte, treated appellants’ objections to appellees’ proposed line of questioning as a Motion in Limine by appellants and denied it.

Johansson was then cross-examined and the testimony in dispute has been reproduced in pertinent part below: [Appellees’ counsel]: Q. You had insurance on your property in the building, correct? [Appellants’ counsel]: Objection. THE COURT: Overruled. [Appellees’ counsel]: You had insurance on it? A. Yes. Q. And one concern you had—you were familiar with something called an insurability profile?

A. Yes. ²²⁰ Q. The fact is: If you had too many claims, you may lose your insurance; the rates may go up; you may not be able to get insurance, correct? A. That could be one description, yes. Q. You also knew— [Appellants’ counsel]: Can I have a continuing objection on this line of questioning? THE COURT: You may. [Appellants’ counsel]: Thank you. [Appellees’ counsel]: You also knew that if you had a claim and are able to have it be somebody else’s fault, someone that the insurance company could get the money back from, that would not go on your insurability profile, correct?

A. I wasn’t sure of that. Q. Let me show you what has been marked as Defense Exhibit 17. Tell me if you can identify it. (Whereupon there was a pause in the proceedings.) A. Yes.

Q. What is it? A. It’s a letter to an insurance company. Q. Who wrote it? A. Me.

Q. That he [sic] was the date on it? A. May the 6th. Q. Would you please read it to the jury? A. “Suit.

In discussing this claim with Mr. Heartly [sic], our agent, he noted that it is not up for subrogation.” Q. Let me ask you, subrogation you knew is a principal [sic] by which the insurance company goes after the person that caused the claim, right? A. Yes. Q. In your deposition you said it’s making the guilty party pay, correct? Is that correct?

A. I wouldn’t say guilty. Responsible party. Q. Please continue. I won’t interrupt again. ²²¹ A. “You knew as well as I know that the landlord appointed the manager to put the hole in the point that caused the break.

I like that you subrogated this claim since it would otherwise stay on my insurability profile.” Q. So it is true that as of May 6th, 2002—at least based upon that letter—the person that you considered responsible for the flood was Mr. Kirchner? A. Yes. From what I knew at the time. Q. And you copied—you were already represented by Mr. Chaifetz [appellee’s counsel] at the time, were you not?

A. Mr. Chaifetz is my lawyer for many years. Q. You copied him on that letter? A. Yes. [Appellees’ counsel]: Your Honor, I introduce Exhibit 17. [Kirchner’s counsel]: Objection THE COURT: Overruled. [Appellees’ counsel]: Now, you subsequently did make a claim against your insurance company for damages; is that correct? [Appellants’ counsel]: Objection. THE COURT: Overruled.

THE WITNESS: Yes. [Appellees’ counsel]: Incidentally, you found out at some point that under your lease agreement, you couldn’t sue your landlord? A. No. Q. Correct? A. No. Q. And your lease says you can’t do it. The landlord is not responsible?

A. I knew that all the time. Q. You knew that? So you made the claim against your insurance company, but that didn’t end satisfactorily. There was a dispute as to what the proper payment should ²²² be and you felt felt [sic].

It hadn’t been handled correctly, so you sued the insurance company? A. Correct. Q. And ultimately, you lost that case, correct? A. No, we settled the case.

Q. Well, you settled it for this much, correct—compared to what you were looking for? A. It was the best deal we could make under the circumstances. Q. On a percentage basis, without getting into numbers, what percentage of what you were looking for did you settle for? A. How can I answer you that without giving a number?

Q. You don’t. Just give a percentage. A. I can’t give a percentage because that’s a number. Q. One service of a hundred dollars is just one percent of the number, but whether it is a thousand dollars, $10,000 or $1, one percent is one percent.

We don’t have to give the numbers because of a certain ruling by the Court. But what is the percentage? A. I don’t know. Q. Isn’t it a fact it is a very, very small percentage, what you settled for in terms of what you were looking for?

A. I don’t think so. [Appellant’s counsel]: May I approach? THE COURT: You may. (Whereupon the parties approached the bench and the following proceeding ensued on the record). 2 * * Q. That lawsuit concluded the beginning of 2005, correct? That is when it was resolved? ²²³ A. It’s possible.

Q. And it is after it resolved that you filed your lawsuit against my client, correct? A. As supervisors [sic], we heard that your client was responsible. We attempted to find him and serve him, but we spent a couple of years trying to find him, but we couldn’t. Q. I see.

That’s the delay. It took a couple of years to sue my client because you didn’t know who had done the roofing work? A. No. Well, that we knew. But to get hold of him to discuss it with him was impossible.

Q. I see. Assume you sent him some letters? I assume there is some written evidence of the assertion you are just making now? A. I think we have the private detective that went out to his last given address.

Q. After you filed suit is what you’re talking about, sir; isn’t that true? A. No. Q. Do you have any written documentation or does [appellants’ counsel] have any written documentation to back up what you are saying? A. You’d have to ask [appellants’ counsel] that. Appellants argue that the mention of insurance during Johansson’s cross-examination contaminated the trial, resulting in a fatal error and they point to the holding of Morris v. Weddington, 320 Md. 674, 681 , 579 A.2d 762 (1990), to the effect