--- title: "Accounting Expert Was Not Allowed to Opine on Damages to Uninsureds" meta: "og:description": "The accounting expert was barred from opining on damages suffered by uninsured persons and entities" "og:title": "Accounting Expert Was Not Allowed to Opine on Damages to Uninsureds" author: "Expert Witness Profiler" description: "The accounting expert was barred from opining on damages suffered by uninsured persons and entities" --- # Accounting Expert Was Not Allowed to Opine on Damages to Uninsureds Posted on May 4, 2026 by Expert Witness Profiler This case centers on a landslide that occurred in May 2017 in the Cincinnati neighborhood of Mount Adams. At the time of the landslide, Plaintiff Metropolitan Design & Development, LLC (“MDD”) was insured under a commercial liability policy with Defendant Frankenmuth Mutual Insurance Company (“Frankenmuth”). MDD performed construction work in the vicinity of the landslide prior to the event, and several lawsuits alleged that MDD’s negligence caused the landslide, resulting in damage to nearby properties. MDD immediately notified Frankenmuth of the lawsuits and provided documentation, but Frankenmuth declined to defend MDD in these actions. Plaintiffs alleged that, in failing to defend MDD in the prior landslide lawsuits, Frankenmuth breached the terms and conditions of its insurance policy with MDD. Plaintiffs proffered two expert witnesses in support of their case: [Charles M. Miller](https://expertwitnessprofiler.com/expert-witness/Charles-Miller/1510745) and [Rebekah A. Smith](https://expertwitnessprofiler.com/expert-witness/Rebekah-Smith/1534867). ## **Insurance Expert Witness** [Charles Murray Miller](https://expertwitnessprofiler.com/expert-witness/Charles-Miller/1510745) is a former insurance claims adjuster and manager, as well as a lawyer practicing insurance law. He has held several insurance claims positions, including senior adjuster, branch office general adjuster, and claims manager. [Discover more cases with Charles Miller as an expert witness by ordering his comprehensive Expert Witness Profile report](https://expertwitnessprofiler.com/order/add?eId=1510745&pId=3). ## **Accounting Expert Witness** [Rebekah Anne Smith](https://expertwitnessprofiler.com/expert-witness/Rebekah-Smith/1534867) is a Certified Public Accountant who specializes in forensic accounting. She has over 29 years of relevant business and analytical experience. [Want to know more about the challenges Rebekah Smith has faced? Get the full details with our Challenge Study report.](https://expertwitnessprofiler.com/order/add?eId=1534867&pId=3) ## **Discussion by the Court** ### **Charles Miller** Frankenmuth contended that Miller’s opinions and analysis offered legal conclusions based on the National Association of Insurance Commissioners’ Model Unfair Claims Settlement Practices Act and Regulations, which are encoded in Ohio law and enforced through Ohio regulations. Frankenmuth also argued that the Court should exclude Miller’s testimony due to their unreliability, as “Miller’s opinions merely amount to criticisms of Frankenmuth’s claims handling processes without grappling with the reality of this case and the facts in the record.” Miller’s opinions are based on general insurance standards that mirror relevant statutes and regulations. Thus, while “Miller’s opinions may verge on legal conclusions,” this “does not mean his entire testimony should be excluded” — instead, Frankenmuth “can object at trial to any questions that it believes would invite an improper response.” Frankenmuth’s argument here centers around its contention that Miller ignored countervailing facts, and because Frankenmuth does not identify omissions significant enough to render Miller’s opinions unreliable, the Court declined to exclude Miller’s testimony on this basis. ### **Rebekah Smith** Frankenmuth contended that Smith’s opinions (1) consisted of “simple math,” (2) were calculated using information about MDD’s financials provided by Plaintiff Matthew Fenik, one of MDD’s principals, that Smith failed to independently verify, (3) omitted consideration of MDD’s working capital during the relevant period, and (4) violated the standards of objectivity that Smith herself outlined in professional publications. As to Frankenmuth’s characterization of Smith’s opinions as “simple math,” the Court disagreed. Because this type of financial analysis is grounded in Smith’s specialized knowledge as a forensic accountant, it qualifies as expert testimony. The Court is unpersuaded by Frankenmuth’s argument contesting the reliability of Smith’s testimony. Frankenmuth asserted that Smith’s opinions are speculative because she should have considered more than just MDD’s financial representations, but Frankenmuth pointed to no other sources of information that she could have examined. This argument does not suffice to exclude Smith’s testimony. As it seems Smith did in fact consider MDD’s working capital during the relevant period, the Court is also unwilling to exclude her report and testimony on this basis. Frankenmuth also pointed out that Smith considered damages to non-insured persons in conducting her analysis, and it argued that such considerations are “plainly irrelevant.” Under Ohio law, only insured persons can recover for bad-faith denial of insurance coverage. Therefore, because Smith’s opinions as to damages to non-insureds would not help the trier of fact to determine any damages amount in this case, which would exclude damages to non-insureds, Smith’s opinions about damages suffered by non-insured persons and entities are irrelevant. ## **Held** - The Court denied the Defendant’s motion to exclude the testimony of Charles Miller. - The Court granted in part and denied in part the Defendant’s motion to exclude the testimony of Rebekah A. Smith. ## **Key Takeaway** Expert testimony must help the trier of fact to understand the evidence or to determine a fact in issue. 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