View this article online: https://www.insurancejournal.com/news/national/2016/12/09/434766.htm
A California federal judge has rendered a ruling on the insurance dispute that emanated from the fatal train accident during the 2014 shooting of the Gregg Allman biopic Midnight Rider in Georgia. In a summary judgment opinion released on Thursday, the film’s production company was denied a bid to force its insurer to cover losses. U.S. District Judge Otis Wright concluded that criminal acts have been properly excluded under the film company’s policy.
On Feb. 20, 2014, the film crew entered private property owned by CSX Railroad to shoot a scene on a railway trestle bridge when a train barreling forward at an estimated 57 miles per hour sent the crew fleeing. Unfortunately, camera assistant Sarah Jones couldn’t get away and was killed while others were injured.
Midnight Rider director Randall Miller pleaded guilty to involuntary manslaughter and criminal trespass and spent time in prison for what happened. Meanwhile, Film Allman LLC filed a lawsuit against New York Marine and General Insurance Co. alleging that the defendant had “sabotaged the Film, the very thing that it agreed to insure and protect when it issued the Producers Policy to Film Allman.”
After months of discovery, New York Marine argued that its policy was clear – that it needn’t cover criminal acts like entering upon the property of another after receiving notice from the owner that such entry was forbidden. The insurer pointed to Miller’s guilty plea, admissions to the Occupational Safety and Health Administration, and depositions from Miller and others.
In October, the producers came forward with some new evidence including an email sent by an employee at CSX, the train rail company, that “recalled” a prior message that the Midnight Rider producers say had been used by criminal prosecutors and OSHA to indicate that CSX withheld its permission to use its tracks. The producers also pointed to evidence that there were individuals from Rayonier present during the filming. Rayonier is a timber company and landowner in the area where the train accident happened.
But that was not enough for the judge.
“There is no contention that Film Allman owned the land or the train tracks in question,” he writes in his opinion. “Thus, the Court can establish that the land and tracks constitute ‘the land or premises of another person.’ Specifically, the land was owned by CSX. Film Allman argues that the owner of the tracks is unknown, but the evidence directly contradicts this and supports the conclusion that CSX is the owner.”
Wright continues, “In addition, Film Allman’s employees received notice from CSX prior to entry that such entry was forbidden. Film Allman’s film crew knew that CSX owned the tracks. And, Film Allman’s employees received denials every time they solicited permission from CSX to use the tracks, including on the morning of the accident. Film Allman’s arguments that it was not denied permission to film on the tracks prior to the accident are conclusory and unsupported. The evidence shows that Film Allman employees knew that they had been denied permission to film on the tracks prior to the accident on February 20, 2014.”
The judge then rejected a “semantics arguments” that the presence of the train was the intervening cause of the accident, writing, “Without the crew’s unauthorized presence on the tracks, the accident would not have occurred. Any argument to the contrary regarding causation is illogical. In conclusion, the Court determines that there is a valid exclusion in the insurance policy for criminal acts, and that exclusion was triggered here.”
According to an amended complaint, after production of Midnight Rider derailed, producers revised the script to focus on 1970’s rock and roll world in general instead of Allman and looked to Utah as an alternative shooting location. They hoped that the insurance money would aid them. But the prospects of collecting on the insurance policy appear dim after now being denied summary judgment on breach of contract and other claims. The judge has also granted the insurer’s own summary judgment for declaratory relief.
Miller and producer Jody Savin experience another setback.
With the new evidence, which included an agreement between CSX and Rayonier, they wished to be added as plaintiffs to an amended lawsuit alleging the insurer may have withheld evidence and acted in bad faith. They claimed that that the insurer had represented CSX in prior matters without their knowledge and that one of the insurer’s employees had forged a plot during the criminal proceeds to force them into bankruptcy.
Judge Wright said he won’t allow an amendment to the lawsuit. He cited procedural infirmities and said he doesn’t believe the producers carried their burden in showing diligence in asserting claims. However, he did point out that Miller and Savin can attempt to bring their action against New York Marine separately.
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