2:04pm PT by Eriq Gardner
'Midnight Rider' Producer Claims Insurance Company "Sabotaged" Film
Two months after Midnight Rider director Randall Miller pled guilty to involuntary manslaughter and criminal trespass in the death of Sarah Jones, the camera assistant killed on the set of the Gregg Allman biopic, the production company is blaming the insurance company for much of what's transpired since the fatal accident.
On Monday, Film Allman LLC asked the judge's permission to amend a lawsuit against New York Marine and General Insurance Company with new claims of breaching contract, anticipatory repudiation and breach of good faith.
According to the amended complaint, "In a classic 'Catch 22,' Film Allman could not proceed with the Film without obtaining its insurance proceeds, and it could not obtain its insurance proceeds until it continued filming. In sum, New York Marine sabotaged the Film, the very thing that it agreed to insure and protect when it issued the Producers Policy to Film Allman."
Last November, the parents of Jones reached a settlement agreement with the film's producers.
But new papers filed today reveal that this happened "over the objection" of the producers and allegedly against their "best interests."
Film Allman asserts that the insurance company refused its request for its own lawyers in the wrongful death lawsuit, then made a $5 million settlement without consulting the production company and later told producers that the settlement exhausted the limits on their policies, leaving them to fend for themselves on other cases still pending. The insurance company also allegedly declined to accept a contribution for the $5 million settlement from the paper company that owns the land around the train tracks where Midnight Rider was filming when a train struck and killed Jones. The production company believes that the insurance company has perpetrated a "scheme," and in its own self-interest, made a "bad faith attempt to avoid payment at every turn."
The legal battle with the insurance company now is set to examine whether New York Marine must still indemnify producers from other civil actions, proceedings before the Occupational Safety and Health Administration, the criminal actions and a claim being made by CSX Transportation, which operates the railroad tracks where Jones died and others were injured.
And the ongoing Midnight Rider fight is set to travel on some bumpy tracks.
In March, the criminal trial opened with Miller and others taking guilty pleas, but according to a letter that a lawyer for the production company sent soon afterwards (revealed in court today), "the guilty plea by Mr. Miller, which was entered under Georgia's First Offender Act, is not an adjudication of Mr. Miller's guilt."
Faulting the insurance company for failing to provide Miller and producer Jody Savin with an attorney who didn't also represent first assistant director Hillary Schwartz — who was accusing her former superiors of criminal conduct — the letter goes on to suggest that neither Miller nor Savin got "an adequate defense."
Mary Craig Calkins, attorney for the plaintiffs, is also stressing that under Miller's plea deal, after he completes the terms of his 10-year jail sentence, he will be deemed to not have a criminal conviction.
For the insurance company, Leon Galdstone responds via letter with an insistance that there is no coverage for loss caused by criminal acts of the insured. "The statements contained in your letter about Mr. Miller contesting some of the findings or claiming innocence, are simply wrong," he writes. "On the record, Mr. Miller specifically agreed with the prosecutor’s recitation of the case. He then pled guilty and the judge accepted the plea and pronounced him guilty... I know of no appeal or other pending proceedings in which Mr. Miller is seeking to set aside his plea."
Gladstone's letter also reveals that as late as July 2014, there were discussions about the costs of restarting production on Midnight Rider.
A deal was worked out where the insurance company agreed to a $1.6 million cash flow schedule on a weekly basis, so long as certain pre-production milestones were met. The insurance company says it began reimbursing some expenses until the film took an "extended hiatus" so that Miller and Savin could focus on their criminal cases. The insurer believes that Film Allman didn't meet any of the pre-production milestones, further noting that the producers "through a newly formed production company... intended to make another film, entitled Slick Rock Trail."
"I will simply point out here that the policy covers extra expenses incurred in completing principal photography of the insured production, not an entirely new production to be made by a new production company, with a new script and a new cast," writes Gladstone.
According to Film Allman's amended complaint, in an effort to re-prepare Midnight Rider for production, it revised the script and settled on Utah as an alternative shooting location. Because of financial considerations caused by the hiatus, the producers say they "refocused the script on the 1970’s rock and roll world generally, rather than specifically on the life of Gregg Allman."
This allegedly happened with the insurer's knowledge and encouragement, but now the production company takes issue with "New York Marine contend[ing] that the revised script constituted a 'new' production that was no longer the same risk insured as when the film was entitled Midnight Rider."