The insurer of the “Midnight Rider” production says that it doesn’t have to pay a claim, in part because of negligence on the part of the film’s producers.
New York Marine on Friday responded to the producers’ lawsuit seeking to recover losses after the film shut down following a Feb. 20 train accident that killed camera assistant Sarah Jones and injured eight others. The movie was to have depicted the life of singer Gregg Allman.
“Plaintiff’s conduct and actions were so careless, reckless, and negligent as to cause and contribute in some degree to the alleged damages, if any, sustained,” the insurer said in a filing with U.S. District Court in Los Angeles. “This negligence bars any recovery or, in the alternative, reduced the right of recovery by that amount which Plaintiff’s negligence contributed to the incident pursuant to the doctrine of comparative negligence.”
The production had been shooting on a train trestle near Jesup, Georgia when a train unexpectedly came down the tracks.
In August, Film Allman — the production entity that director Randall Miller and producer Jody Savin set up to make “Midnight Rider” — filed suit against New York Marine in Los Angeles Superior Court. The litigation was subsequently moved to federal court.
Film Allman contended that Miller was covered by a provision of the policy that protects the production from losses if a cast member or principal is unable to perform, with a $5 million liability for each loss. After the accident, Miller was diagnosed with post traumatic stress disorder and “was physically and psychologically unable to continue filming for several months,” their lawsuit states. Because he was covered by the policy, Film Allman submitted a claim for shutdown and startup costs, estimated to be more than $1.6 million.
The company also contended that New York Marine refused to pay the claim “pursuant to an agreed-upon schedule,” and that it refused to cover the production at the 11th hour when they attempted to restart it with a revised script.
New York Marine admitted that it initially reached an agreement to restart the production, with periodic payments to Film Allman, but that it was subject to unspecified “specific terms and conditions.”
The insurer also contends that the policy was breached because Film Allman failed to cooperate with them. They cited a policy provision that voids the policy “in any case of fraud, intentional concealment or misrepresentation of any material fact or circumstances concerning this insurance.”
New York Marine also claims that Film Allman “entered into a settlement agreement with regard to its insurance claim whereby it agreed to contractual conditions,” leading New York Marine to withhold payment.
New York Marine said that the restarted project, “Slick Rock Trail,” is an entirely new production, while the producers said in their lawsuit that their project is a “refocusing of the script onto the rock and roll world of the 1970s generally, rather than the life of Gregg Allman.”
Miller, Savin, executive producer Jay Sedrish and assistant director Hillary Schwartz are each facing charges of criminal trespass and involuntary manslaughter. A trial is scheduled to begin in March in Georgia.