UPDATED: Film Allman, the production company behind “Midnight Rider,” is faulting CSX Corp. for failing to slow a train that plowed through the set of the movie on Feb. 20, 2014, killing camera assistant Sarah Jones and injuring eight others.
The company, owned by director Randall Miller and producer Jody Savin, are making the claims as part of its lawsuit against New York Marine, the insurer which is refusing to pay for losses on the grounds that they were incurred as a result of a criminal act.
Miller served one year in jail in Jesup, Ga., after he reached a plea agreement with prosecutors on charges of criminal trespass and involuntary manslaughter.
The crew had been shooting on a train trestle when a train unexpectedly came down the tracks. In the aftermath, prosecutors said that the production was aware that they did not have permission from CSX to be on the tracks. A paper products company that owns land around the tracks, Rayonier, did grant them access to their land.
But in a filing in U.S. District Court in Los Angeles on Monday, Film Allman contends that “the facts leading to the loss are far more nuanced that as presented by” New York Marine.
They cite evidence that before the accident, two passing CSX train crews “saw the film crew on and by the track and never reported it to their dispatch.” They also note that the engineer and conductor of the train that struck the set “saw that 20 people were on the trestle from 3/4 miles away, and never applied brakes of any kind to slow the train, which violated CSX’s own rules.”
The filmmakers, who are represented by Douglas Gastelum, also are raising doubts about whether they were even denied permission — or even if CSX actually owned or had authority over the tracks.
On the morning of the accident, a CSX executive, Carla Groleau, sent an email to location manager Charley Baxter and a Rayonier employee, Tina Kicklighter, saying that the company was “not able to support” the request to shoot on the tracks that day. But then Groleau sent a notice to recall the email.
“Even on the date of the accident, communications with CSX were objectively unclear, and people were of different minds regarding (1) what communications had been made…and (2) the meaning of any communication that occurred,” Film Allman said in its filing.
Under Georgia state law, criminal trespass occurs only “after receiving notice from the rightful occupant, that the actor is forbidden from entering the premises,” Film Allman noted in its filing.
“There were no ‘No Trespassing’ signs or other indications on site that Film Allman had to seek permission beyond the permission it received when Rayonier personnel opened lock gates, accompanied Film Allman to the site with full knowledge of the contents of the shot, went on the tracks themselves, watched Film Allman set up the shot, and never told Film Allman that it required addition permissions,” the filmmakers said in the filing.
A spokeswoman for CSX said that they do not comment on matters involving litigation.
Film Allman also has raised the issue of whether Rayionier was acting as an “agent” for CSX in granting permission. The filmmakers cited testimony from prosecutor John Johnson that he knew that CSX and Rayonier had an agreement about the use of the tracks.
New York Marine is seeking a motion for partial summary judgment in the case, and a hearing scheduled for Nov. 7.
Film Allman also is raising issues with Baxter, whose testimony has been used by prosecutors and federal safety officials to bolster their contention that Miller and others on the crew were aware that they lacked permission to be on the trestle. In a decision for the Occupational Safety Review Commission last year, an administrative law judge wrote that Baxter had forwarded the Groleau’s first CSX email, declining to support the filming request, to Miller, Savin and other crew members.
Film Allman cited instances where it says that Baxter gave “differing testimony.” That included his claim in a Jan. 27, 2015 deposition that he did not come to the location on Feb. 20, 2014 out of protest, after receiving the first CSX e-mail that day. Yet Baxter made that clear in a text message he sent to Kicklighter the night before the shoot that he would not be there, according to Film Allman’s brief.