American Family Insurance Company v. DIA SURI, LLC

Filing 50

ORDER granting in part and denying in part 30 Plaintiff's Motion to Exclude Testimony and Report of Fred Bonner; denying 31 Plaintiff's Motion to Exclude Testimony and Report of Dwain Begitschke; and denying 42 Plaintiff's Motion to Strike. Signed by Judge William T. Moore, Jr. on 09/10/2020. (JH)

Case 4:18-cv-00181-WTM-CLR Document 50 Filed 09/10/20 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

AMERICAN

FAMILY INSURANCE

COMPANY,

Plaintiff,
CASE NO. CV418-181

V.

DIA SURI, LLC,
Defendant

ORDER

Before the Court are Plaintiff's Motion to Exclude Testimony

and Report of Fred Bonner (Doc. 30), Plaintiff's Motion to Exclude
Testimony and Report of Dwain Begitschke (Doc. 31), and Plaintiff's
Motion to Strike Defendant's Brief in Opposition to Plaintiff's

Motion to Exclude (Doc. 42). For the following reasons. Plaintiff's

Motion to Strike Defendant's Brief in Opposition to Plaintiff's
Motion

to

Exclude

(Doc.

42)

is

DENIED,

Plaintiff's

Motion

to

Exclude Testimony and Report of Fred Bonner (Doc. 30) is GRANTED
IN PART and DENIED IN PART, and Plaintiff's Motion to Exclude

Testimony and Report of Dwain Begitschke (Doc. 31) is DENIED.
BACKGROUND

This case is a declaratory judgment action involving a dispute
over insurance coverage for loss of business income. (Doc. 1.)
Defendant has filed a counterclaim to the declaratory judgment

action alleging breach of contract for Plaintiff's alleged failure

Case 4:18-cv-00181-WTM-CLR Document 50 Filed 09/10/20 Page 2 of 17

to compensate Defendant for its loss of business income claim.
(Doc. 11.)

Defendant DIA SURI, LLC operates a Best Western hotel in
Pooler, Georgia (the ^'Best Western"). (Doc. 32, Attach. 1 at 1 1;
Doc.

44, Attach. 8

at f 1.)

The

Best

Western

was insured

by

Plaintiff American Family Insurance Company (^^American Family")

under policy number 10X25958-01 (the ^"Policy")

with effective

dates October 12, 2015 through October 12, 2016. (Doc. 32, Attach.
7 at SI 2; Doc. 44, Attach. 8 at SI 2.) On October 6, 2016, the Best

Western suffered damage due to a hurricane. (Doc. 32, Attach. 7 at
SI 3; Doc. 44, Attach. 8 at SI 3.) On November 2, 2016, Plaintiff

received a claim about the hurricane damage. (Doc. 44, Attach. 1

at 10.) On or around February 7, 2017, Plaintiff sent an estimate

of covered damages to Defendant and contended that only $3,319.21
of damage was sustained. (Doc. 11, Attach. 2 at 3.) In response.

Defendant

hired

Strategic

Claim

Consultants

to

determine

the

extent of damage incurred as a result of the hurricane and to
estimate the cost of repair. (Doc. 11, Attach. 3.) Strategic Claim
Consultants estimated the total cost of repair to be $928,638.11.

(Id. at 14.) By demand letter dated August 11, 2017, Defendant,
through

counsel,

demanded

Plaintiff

pay

$872,638.11

which

represents the $928,638.11 assessed by Strategic Claim Consultants
less the deductible of $56,000.00. (Doc. 11, Attach. 4 at 3.) On

November 7, 2017, Plaintiff paid Defendant $132,202.06. (Doc. 11,

Case 4:18-cv-00181-WTM-CLR Document 50 Filed 09/10/20 Page 3 of 17

Attach. 5 at 2.) Plaintiff also sent a copy of its own estimate
that it used to determine the payment amount. (Doc. 11, Attach. 6

at 2.) Plaintiff used Clay Kincaid, with Syndicate Claims Services,
Inc., and Kincaid estimate the replacement cost value for the
dwelling to be $210,608.66 and the net claim to be $133,149.06.
(Id. at 21.) He also found the net claim for ^^other structures" to
be $153.42 and the net claim for ""^contents" to be $4,101.12. (Id.

at 22-23.) By demand letters dated November 20, 2017, and December
12, 2017, Defendant, through counsel, demanded an appraisal of
their loss pursuant to the Policy after receiving the payment of
$132,202.06 due to the apparent disagreement about the total amount
of the loss. (Doc. 11, Attach. 7; Doc. 11, Attach. 8.) On December

7, 2017, Plaintiff agreed to the appraisal. (Doc. 11, Attach. 9.)
Each

party identified

their

respective

appraiser

and

the

two

appraisers appointed Albert Paxton as the umpire between them, as
set out in the Policy. (Doc. 11, Attach. 11 at 2.) Paxton issued

his appraisal award on May 2, 2018 and found the total loss to be
$363,071.01, less depreciation for an actual cash value total of
$254,149.71. (Id. at 6.) Plaintiff issued a second payment on May
23, 2018 in the amount of $75,947.65. (Doc. 11, Attach. 12.) The

final payment of $108,921.30 was issued by Plaintiff on December
13, 2018. (Doc. 40, Attach. 3.)

Defendant also pursued a claim for loss of business income in
the amount of $3,145,324.78. (Doc. 11, Attach. 13 at 4.) After

Case 4:18-cv-00181-WTM-CLR Document 50 Filed 09/10/20 Page 4 of 17

reviewing the claim. Plaintiff paid Defendant $13,023.00 which
''represent[ed]

the

undisputed

amount

for

the

Business

Income

claim." {Doc. 11, Attach. 15 at 2.) Plaintiff issued a check in
the amount of $13,023.00 on May 14, 2018. (Id. at 3.) Pursuant to
Section 1(A)(5)(f) of the Policy:

We will pay for the actual loss of Business Income you
sustain due to the necessary suspension of
your
"operations" during the "period of restoration". The
suspension must be caused by direct physical loss of or

damage to property at the described premises. The loss
or damage must be caused by or result from a Covered
Cause of Loss.

(Doc. 1, Attach. 2 at 17.) Further, the Policy limits the payment
of Business Income to that loss that is sustained "during the

'period of restoration' and that occurs within 12 consecutive
months after the date of direct physical loss or damage." (Id.)
"Business Income" is defined by the Policy as
(i) Net Income (Net Profit or Loss before income taxes)
that would have been earned or incurred if no physical
loss or damage had occurred, but not including any Net
Income that would likely have been earned as a result of
an increase in the volume of business due to favorable

business conditions caused by the impact of the Covered
Cause of Loss on customers or on other businesses; and

(ii)

Continuing

normal

operating

expenses

incurred,

including payroll.

(Id. at 17-18.) "Period of restoration" is defined as the period
of time that:

(1) Begins:

(a) 72 hours after the time of direct physical loss
or damage for Business Income Coverage; or
(b) Immediately after the time of direct physical
loss or damage for Extra Expense Coverage; caused

Case 4:18-cv-00181-WTM-CLR Document 50 Filed 09/10/20 Page 5 of 17

by or resulting from any Covered Cause of Loss at
the described premises; and
(2) Ends on the earlier of:

(a) The date when the property at the described
premises should be repaired, rebuilt or replaced
with reasonable speed and similar quality; or
(b)

The date when business is resumed at a
permanent location.

(Id.

at

34.)

The ''direct

physical

loss" to

the

new

Best

Western

occurred on October 6, 2016. (Doc. 44, Attach. 8 at SI 12.)

Defendant has retained a construction expert, Fred Bonner, to

opine

on

what

repairs

the

Best

Western

required

due

to

the

hurricane damage and the time estimated to complete the above
referenced repairs. (Doc. 21 at 3-8.) Mr. Bonner opined that, based
on the repairs he identified that needed to be complete, the
estimate of construction time is 120 days. (Id. at 6.) Defendant

also identified an expert on its loss of business revenue, Dwain
Begitschke.

(Doc.

22.)

Mr.

Begitschke

opines

that

Defendant

"suffered a loss of revenue in the sum and amount of Three Hundred

Twenty-Six

Thousand,

Six

Hundred

Eighty-Eight

Dollars

($326,688.00) from July 1, 2017 through December 31, 2017 because

of physical damage caused by Hurricane Matthew." (Id. at 2.)
Plaintiff offers a competing loss of business revenue expert, J.

Kyle Aldridge, who opines that for the dates October 6-9, 2016,
Defendant suffered $13,138.00 in lost net income. (Doc. 23 at 8.)

Case 4:18-cv-00181-WTM-CLR Document 50 Filed 09/10/20 Page 6 of 17

ANALYSIS

I.

PLAINTIFF^S MOTION TO STRIKE

Generally, motions to strike are brought pursuant to Federal
Rule of Civil Procedure 12(f), which provides that "[u]pon motion
made by a party before responding to a pleading . . . the court
may

strike

from

a

pleading

an

insufficient

redundant, immaterial, impertinent,

or

defense

scandalous

or

any

matter." The

federal rules define a pleading as one of the following: "(1) a
complaint;

(2)

an

answer

to

a

complaint;

(3)

an

counterclaim designated as a counterclaim; (4) an

answer

to

a

answer to a

crossclaim; (5) a third-party complaint; (6) an answer to a thirdparty complaint; and (7) if the court orders one, a reply to an

answer." Fed. R. Civ. P. 7(a). "Pleadings are defined in Federal
Rule

of

Civil

Procedure

7(a)

and

do

not

include

motions

or

supporting briefs." Donaldson v. Normand, No. 5:18-CV-7, 2019 WL
956809, at *4 (S.D. Ga. Feb. 27, 2019), report and recommendation
adopted as modified. No. 5:18-CV-7, 2019 WL 1349684 (S.D. Ga. Mar.
26, 2019). See also Brantley v. Ferrell Elec., Inc., 112 F. Supp.
3d 1348, 1354 (S.D. Ga. 2015).

However, this Court will treat Plaintiff's motion to strike

as an objection. The Court overrules the objection and denies
Plaintiff's motion. Plaintiff seeks to strike Defendant's response

brief on the basis that the page limit exceeds the limit set by
Southern District of Georgia Local Rule 7.1(a). (Doc. 42 at 6.)

Case 4:18-cv-00181-WTM-CLR Document 50 Filed 09/10/20 Page 7 of 17

Defendant's response brief is thirty-one (31) pages in length and
Local Rule 7.1(a) specifies that ^^no brief shall exceed twenty-

six (26) pages in length" absent prior permission from the court.
Defendant has responded in opposition to Plaintiff's motion to
strike and argued that its response brief should not be stricken.
(Doc.

43.)

Defendant

also

attached

the

same

response

brief

converted to 12-point Times New Roman font which, once the font
was changed, equals twenty-six (26) pages in length. (Doc. 43,
Attach. 1.) The Court finds Plaintiff's motion to strike is due to

be denied. First, Defendant has shown that the brief, in another

format, fits

Plaintiff

has

within

not

this

Court's

how

shown

length

was

it

requirements.

prejudiced.

Second,

Accordingly,

Plaintiff's motion (Doc. 42) is DENIED.
II.

PLAINTIFF'S

MOTIONS

TO

EXCLUDE

TESTIMONY

AND

REPORTS

OF

EXPERTS

A.

Standard of Review

The admission of expert testimony is controlled by Federal
Rule of Evidence 702:

A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in
the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles
and methods; and

(d) the expert has reliably applied the principles and
methods to the facts of the case.

Case 4:18-cv-00181-WTM-CLR Document 50 Filed 09/10/20 Page 8 of 17

The trial judge is assigned ""the task of ensuring that an expert's
testimony both rests on a reliable foundation and is relevant to
the task at hand." Daubert v. Merrell Dow Pharm., Inc., 509 U.S.

579, 597, 113 S. Ct. 2786, 2799, 125 L. Ed. 2d 469 (1993). "As the

Supreme Court made abundantly clear in Daubert, Rule 702 compels
district

courts

concerning

the

to

perform

admissibility

the
of

critical
expert

gatekeeping
scientific

function

evidence."

United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004)

(internal quotation omitted). This gatekeeping function equally

applies to the admissibility of expert technical evidence. Id.;
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-49, 119 S. Ct.

1167, 1174-75, 143 L. Ed. 2d 238 (1999). The Eleventh Circuit Court

of Appeals has explained that district courts fulfill that function
by engaging in a three-part inquiry, considering whether
(1) the expert is qualified to testify competently
regarding the matters he intends to address; (2) the
methodology by which the expert reaches his conclusions
is sufficiently reliable as to be determined by the sort
of inquiry mandated in Daubert; and (3) the testimony
assists the trier of fact, through the application of
scientific . . . expertise, to understand the evidence
or to determine a fact in issue.

Frazier, 387 F.3d at 1260.

When

a

court

considers

the

reliability

of

a

particular

expert's opinion, it considers, to the extent possible, (1) whether
the expert's theory can be and has been tested; (2) whether the
theory has been subjected to peer review and publication; (3) the

Case 4:18-cv-00181-WTM-CLR Document 50 Filed 09/10/20 Page 9 of 17

known or potential rate of error of the particular scientific
technique; and (4) whether the technique is generally accepted in
the scientific community. See Quiet Tech. DC-8, Inc. v. HurelDubois, UK, Ltd., 326 F.3d 1333, 1341 (llth Cir. 2003) (citing
McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256 (llth
Cir.

2002)).

These

factors

""do

not

constitute

a

definitive

checklist or test." Kumho Tire, 526 U.S. at 150, 119 S. Ct. at

1175 (internal quotation marks and citation omitted). Rather, the
applicability

of

these

circumstances of the

factors

particular

"'depends

upon

the

particular

case at issue." Id. The

same

criteria that are used to assess the reliability of a scientific

opinion may be used to evaluate the reliability of non-scientific,
experience-based testimony. Frazier, 387 F.3d at 1262.
B. Plaintiff^s Motion to Exclude Testimony and Report of
Fred Bonner

Plaintiff moves to exclude Fred Bonner's testimony and expert

report as irrelevant and unreliable. (Doc. 30, Attach. 1 at 4.)
Plaintiff argues

that

Mr.

Bonner's opinion

that the

necessary

repairs would take 120 days should be excluded because his opinion
is not based upon the repairs specified in the appraisal award and
is instead based on report prepared by Strategic Claim Consultants.
(Id. at 8.) Thus, because the parties are bound to the damages

specified

in

the

appraisal award.

Plaintiff

contends that an

opinion based on a separate calculation of damages would not assist

Case 4:18-cv-00181-WTM-CLR Document 50 Filed 09/10/20 Page 10 of 17

a trier of fact in determining the ^^period of restoration." (Id.

at 9.) In response. Defendant argues that Mr. Bonner's opinion is
reliable because (1) he reviewed the Appraisal Award when preparing

his expert report, (2) the Appraisal Award lacked significant
details and could not be relied upon entirely, and (3) Bonner

specified in his deposition that, based solely on the amount of
work given in the Appraisal Award, it would take 115 to 120 days
to complete. (Doc. 40 at 15-31.)

Plaintiff's motion is due to be granted. The Court finds that

the Appraisal Award constitutes a binding award on the amount of

physical loss and that Mr. Bonner's report and opinions, to the
extent they are based on the Strategic Claims Estimate and not the
Appraisal Award, are irrelevant and should be excluded.

First,

according

to the

plain

terms

of

the

Policy,

the

Appraisal Award in this case is binding on the parties. The
operative provision in the Policy provides:

If we and you disagree on the amount of loss, either may
make written demand for an appraisal of the loss. In
this event, each party will select a competent and
impartial appraiser. The two appraisers will select an
umpire. If they cannot agree, either may request that
selection be made by a judge of a court having
jurisdiction. The appraisers will state separately the
amount of loss. If they fail to agree, they will submit
their differences to the umpire. A decision agreed to by
any two will be binding. Each party will:
a. Pay its chosen appraiser; and
b. Bear the other expenses of the appraisal and
umpire equally.
If there is an appraisal, we will still retain our right
to deny the claim.

10

Case 4:18-cv-00181-WTM-CLR Document 50 Filed 09/10/20 Page 11 of 17

(Doc. 1, Attach. 2 at 28.) Plaintiff's appraiser was Jim Stoops.

(Doc. 11, Attach. 9 at 3.) Defendant selected Brian Rindt as the
insured's appraiser. (Doc. 11, Attach. 10 at 2.) Albert Paxton was

the umpire between them, as set out in the Policy. (Doc. 11,
Attach. 11 at 2.) Jim Stoops, Brian Rindt, and Albert Paxton all

signed the Appraisal Award. (Id.) Under the Policy, a decision
agreed to by two of the three appraisers (the insurer's appraiser,
the insured's appraiser, and the mutually selected umpire) is
binding. Here, all three agreed to the award and, therefore, the
appraisal award is binding.

Second, the Court finds that Mr. Bonner's opinions, as based
on the Strategic Claims Estimate, should be excluded. Mr. Bonner

opined that "[t]he estimate of the construction time to complete
the above-reference repairs is one hundred (120) days," and that

the basis for this opinion is that ^'[t]he 120 days will be for the

roof

work

only

and

the

interior

time

will

depend

on

the

availability of rooms and how many rooms we can access at one time

to perform work." (Doc. 21 at 6.) Plaintiff moves to exclude this
opinion on the grounds that it is improperly based on the Strategic
Claims

Estimate,

irrelevant.

The

not
Court

the

Appraisal

agrees.

It is

Award,

and

clear

from

is
Mr.

therefore
Bonner's

deposition that his expert report was based upon the Strategic
Claims Estimate. Mr. Bonner testified in his deposition that he

11

Case 4:18-cv-00181-WTM-CLR Document 50 Filed 09/10/20 Page 12 of 17

reviewed both the Strategic Claims Estimate and the Appraisal
Award, but based his opinion on the

work contemplated in the

Strategic Claims Estimate and the work that be believed should be
completed. Mr. Bonner testified as follows:

Q. Okay. So you estimated 120 days to do the roof work
that you reference in your expert report?
A. Correct.

Q. Not the roof work that is referenced in the Appraisal
Award?
A. No.

(Doc. 35 at 71-72.) He also testified as follows:

Q. Okay. And your opinion with regards to the time frame
to complete repairs is based upon your view of the
property; correct?
A. Correct.

Q. And the Strategic Claim estimate; correct?
A. Yes.

Q. And nothing else?

A. And my background in doing this kind of work.
Q. Yeah. I apologize. And your experience?
A. Yes.

Q. Okay. It's not based on any estimate prepared by
anybody on behalf of American Family?
A. No.

Q. It's not based on the Appraisal Award?
A. No.

(Id. at 75.)

Defendant urges this Court to find Mr. Bonner's expert report
reliable because he testified in his deposition that ""the repairs
covered under the Appraisal Award would take one hundred twenty

(120) days to complete, which is the exact same amount of time
provided in his expert report." (Doc. 40 at 20-21.) Defendant,
however, mischaracterizes Mr. Bonner's testimony. Mr. Bonner, when

12

Case 4:18-cv-00181-WTM-CLR Document 50 Filed 09/10/20 Page 13 of 17

asked to give an estimate of time based upon the Appraisal Award,
estimated 60 days for the flat roof and 25 to 30 days for the metal
roof for a total of 85 to 90 days for roof repairs. (Doc. 35 at

91-92.) He estimated 115 to 120 days for all work contemplated in
the Appraisal Award, including the roof and the interior work.
(Id. at 92.) As stated above, Mr. Bonner explicitly stated in his

expert report that the 120-day estimation was only for the roof
repairs. He made this distinction clear in his deposition as well,
where he testified that, in his own opinion of what repairs would
be

needed, the total time for

both

the

roof

repairs and

the

interior repairs would be 240 days, comprised of 120 days for each
the roof and the interior work, and these repairs could not be
done concurrently. (Id. at 73; 76-77.)

Accordingly, the Court GRANTS Plaintiff s motion to exclude
to the extent it seeks to exclude Mr. Bonner's opinion that the

roof repairs would take an estimated 120 days because this opinion
was not based upon the Appraisal Award. The Court, does not,
however exclude Mr. Bonner's opinions in their entirety. Mr. Bonner

did review the Appraisal Award and he relied on the evidence of
this case in his deposition when he gave various estimates of time

for repairs pursuant to the Appraisal Award. Mr. Bonner's opinions
based on the Appraisal Award are not excluded.

13

Case 4:18-cv-00181-WTM-CLR Document 50 Filed 09/10/20 Page 14 of 17

C. Plaintiff^s Motion to Exclude Testimony and Report of
Dwain Beqitschke

In his expert report, Dwain Begitschke offers an opinion that
^^Dia Suri, LLC suffered a loss of revenue in the sum and amount of

Three

Hundred

Twenty-Six

Thousand,

Six

Hundred

Eighty-Eight

Dollars ($326,688.00) from July 1, 2017 through December 31, 2017

because of physical damage caused by Hurricane Matthew." (Doc. 22
at 2.) Plaintiff first argues that Begitschke is not qualified to
opine on ^'loss of business income" because he is a tax accountant

with no experience in forensic accounting and/or determining ^^loss
of business income." (Doc. 31, Attach. 1 at 7-8.) Plaintiff argues

that

Begitschke

does

not

have

the

appropriate

experience

in

calculating loss of business income for insurance purposes. (Id.

at 9.) In response. Defendant argues that Begitschke is qualified
because of his education, training, and experience even in absence

of specific experience in calculating business income claims.
(Doc. 41 at 9.) Defendant also argues that Begitschke's experience

as an accountant qualifies him to opine on business income because,

in preparing tax returns, he reviews and analyzes business income.
(Id. at 11.)

First,

the

Court

finds

Plaintiff's

motion

is

misplaced

because Begitschke's deposition and expert report make it clear
that,

while

his

opinion

goes

to

support

Defendant's loss

of

business income claim, he is not opining on the lost business

14

Case 4:18-cv-00181-WTM-CLR Document 50 Filed 09/10/20 Page 15 of 17

income itself. Begitschke stated in his deposition that he was
retained to offer an opinion on loss of revenue, not loss of
income. (Doc. 37 at 8-9.) Second, Begitschke clarified the scope

of his opinion (e.g. revenue versus net income) in his deposition
as follows:

Q.

Let's

talk

about

what's

the

difference

between

revenue and income are.

A. Yeah, that's what — that's -- we got to clarify that.
Q. Okay. So —
A. Whenever you say income, I'm thinking of net income.
I'm thinking of the bottom line. I'm thinking of revenue
minus expenses gets you the net income. That seems to be
what people is always worried about 'cause you pay taxes
on it or if somebody is going to evaluate your company,
that's what they're going to look at. . . .
(Doc. 37 at 31-32.) Elsewhere, Begitschke testifies:
Q. So business income is not just revenue; it's revenue
less expenses?
A. Correct. When you keep saying "income," I'm thinking
net income. That's what I'm thinking of.
Q. Correct and that is — that is the - is that standard
in the industry that businesses income is revenue less
expenses?
A. Yes. If it -- people say their gross revenue, gross

profit, which is after your direct expenses and usually
your administrative expenses, it get down to your net
income.

(Id. at 33.) Begitschke's expert report states that he is opining
on the loss of revenue. (Doc. 22 at 3.) As made clear in

his

deposition, revenue and net income are different sums. Thus, the
fact that Begitschke did not give an opinion of loss of income
does not render him unqualified to offer an opinion on the loss of
revenue for Defendant during a certain time period.

15

Case 4:18-cv-00181-WTM-CLR Document 50 Filed 09/10/20 Page 16 of 17

Further,

the

Court

finds

that

Begitscke

is

sufficiently

qualified to offer an expert opinion in this case. Begitschke is
a certified public accountant who has been a shareholder in the
Cumberland Financial Group, Inc. for the last ten years. (Doc. 22,
Attach. 1 at 1.) In his role at Cumberland Financial Group, Inc.,

Begitschke prepares business income tax returns for businesses,

provides

consulting

for

businesses

on

financial,

tax,

and

management issues, and prepares income tax returns for business
owners.

(Id.)

The

Court

finds

that

Begitscke's

education

and

experience qualifies him to opine on loss of business revenue.
Plaintiff further contends that Begitschke's testimony must
be excluded as irrelevant and unreliable. (Doc. 31, Attach. 1 at
10.) Plaintiff contends that

the policy provides that loss of business income is
revenue less "continuing operating expenses." Simply
providing the jury the revenue portion of this
calculation does not assist them in understanding the

evidence, because the lay jury is in no way qualified to
calculate, on its own, the "continuing operating

expense" which must be deducted from revenue in order
to calculate "loss of business income."

(Doc.

47

at

5-6.)

The

Court

disagrees.

By

Plaintiff's

own

admission, "to complete a calculation on loss of business income,
one

must

calculate

calculation."

(Id.

revenue
at

6.)

as

a

portion

Plaintiff

of

attempts

the
to

complete
exclude

Begitschke's opinion because it does take the next step of actually
deducting continuing operating expenses from revenue to reach loss

16

Case 4:18-cv-00181-WTM-CLR Document 50 Filed 09/10/20 Page 17 of 17

of business income. The fact that Begitschke did

not offer an

opinion of loss of business income does not render his opinion of
loss of revenue unreliable or unhelpful to the jury as Plaintiff
itself recognizes that loss of revenue is a key element in the
calculation

of

loss

of

income.

Moreover,

any

issues

with

Begitschke's opinion being limited to just one part of the whole
"calculation" to arrive at loss of business income can be explored
on cross-examination. "Cross-examination and the presentation of

contrary evidence
attacking

shaky

^are the traditional and appropriate means of
but

admissible

evidence.' " Sorrels

v.

NCL

(Bahamas) Ltd., 796 F.3d 1275, 1285 (11th Cir. 2015) (quoting
Daubert, 509 U.S. at 596, 113 S. Ct. at 2786).
CONCLUSION

For

the

foregoing

reasons.

Plaintiff's

Motion

to

Strike

Defendant's Brief in Opposition to Plaintiff's Motion to Exclude
(Doc. 42) is DENIED, Plaintiff's Motion to Exclude Testimony and

Report of Fred Bonner (Doc. 30) is GRANTED IN PART and DENIED IN
PART, and Plaintiff's Motion to Exclude Testimony and Report of
Dwain Begitschke (Doc. 31) is DENIED.
SO ORDERED this

day of September 2020.

WILLIAM T. MOORE,
'PSr.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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