Home Page The Publication The Editor Contact Information Insurance Key issues Book Subscribe

Vol. 6, Iss. 1
January 11, 2017

Ramblin’ Arguments For Coverage: Allman Brothers-Related Claim

The coverage issues in Film Allman v. New York Marine & Gen. Ins. Co., No. 14-7069 (C.D. Calif. Dec. 8, 2016) are not at all unique or groundbreaking. But the facts are interesting (albeit tragic) and the case has a connection to the Allman Brothers. So here it is. If it had been the Hallman Brothers I would have tossed it back and casted out for a better catch.

A coverage dispute arose out of the following. Randall Miller and Jody Savin established a production company, Film Allman, to create a biopoic about the formation of The Allman Brothers and their explosion onto the music scene. An accident occurred while Film Allman employees were filming a scene on a train trestle bridge and tracks in Wayne County, Georgia. A train operated by CSX Transportation came through while the crew was still on the tracks, resulting in the death of an assistant camera technician. Location manager Charles Baxter communicated with CSX prior to the accident regarding permission to film on the train tracks. On the morning of the accident CSX sent Baxter an email denying permission. After the accident, Miller, Savin and others were indicted for criminal trespass.

Film Allman became the subject of several civil suits. New York Marine insured Film Allman under a Motion Picture/Television Producers Portfolio Policy. New York Marine argued that no coverage was owed because the policy contained a criminal act exclusion and Film Allman employees committed a criminal act.

The court didn’t break a sweat concluding that the criminal act exclusion applied. Film Allman’s arguments to the contrary were anemic -- on their best day.

On the applicability of the criminal act exclusion, the court stated: “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. Moreover, Baxter acknowledged forwarding the e-mail to Miller, Savin, Sedrish, Schwartz, and others within minutes of his having received it. 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.”

For whatever it’s worth, Film Allman sought to avoid the criminal act exclusion by arguing that it was subject to a “saving clause” [“But if any of these [exclusions] results in a Covered Cause of Loss, we will pay for the loss or damage caused by that Covered Cause of Loss.”] The court was not convinced, determining that, based on the manner in which the policy was structured, the “saving clause” applied to the pollution exclusion.

The court also rejected Film Allman’s argument tied to California’s “efficient proximate cause” rule, namely, that insurance is provided when an “efficient” cause of a loss is a risk covered under the policy, even if excluded risks may have also contributed to the loss. The court explained: “Film Allman misstates the law. For this ‘efficient proximate cause’ rule to apply, there must be two separate and distinct risks, one covered and one excluded by the policy, either one of which could have occurred independently of the other and caused the damage at issue. That is not the case here. The train did not run off its tracks, nor were the film crew pushed onto the tracks by some force beyond their control. Without the crew’s unauthorized presence on the tracks, the accident would not have occurred. Any argument to the contrary regarding causation is illogical.”

Website by Balderrama Design Copyright Randy Maniloff All Rights Reserved