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Who will be picking up the tab for the extra cost to make movies and TV shows late in 2020, when state governments eased shutdown orders but infections were surging? That’s the crucial question that will be answered by a big lawsuit filed Thursday by Fireman’s Fund against Disney.
The insurer will at least be partially reimbursing Disney for the early months of the COVID-19 pandemic because Fireman’s Fund agrees that Civil Authority Coverage was triggered. That’s when government authorities made it impossible to proceed on productions. Disney believes other policies were triggered, too, but the big fight has to do with so-called second wave claims.
Here’s how a complaint filed in Los Angeles Superior Court describes the “second wave” of the COVID-19 pandemic:
“After several months, the shutdown orders were gradually modified, allowing production to resume. However, various jurisdictions imposed requirements, including, for example, frequent testing and quarantining of cast and crew in the event of exposure. The restrictions have led to more shutdowns, more expenses and more claims.”
Fireman’s Fund gives the example of a nonessential crewmember having face-to-face contact with a movie director and then reporting infection, requiring a costly shutdown for 14 days. Who pays? According to the complaint, Disney claims $10 million from these types of second wave claims.
Disney would like its Cast Coverage to apply here, but Fireman’s Fund says otherwise healthy cast being quarantined merely from exposure doesn’t trigger that policy.
Disney would like the Civil Authority Coverage to apply here, but Fireman’s Fund contends that testing and quarantining is not quite the same as when a government makes it impossible to use a facility.
Disney would like the Imminent Peril Coverage to apply here, but Fireman’s Fund, well, has a pretty eye-catching response.
“Fireman’s Fund contends that the Imminent Peril Coverage is not applicable because the peril, i.e., the pandemic, is no longer imminent,” states the complaint. “Rather, it arrived in 2020. Alternatively, Fireman’s Fund contends that if the peril is not the pandemic itself but is, instead, the imminent risk of infection that the Imminent Peril Coverage was not intended to apply where a producer, i.e., TWDC [The Walt Disney Company], intentionally puts the cast and crew in harm’s way by continuing production in the face of a peril that must, by definition, be imminent and of such probability and severity that it would be unreasonable or unconscionable to ignore.”
Finally, Fireman’s Fund is also looking to escape having to reimburse Disney for an additional one or two weeks of hiatus during the December holidays. At the time, COVID-19 infections were surging, and while governments expressed concern, none required extra time off. Fireman’s Fund paints Disney as generous but, unfortunately, concern and generosity doesn’t trigger Civil Authority Coverage. Or at least so the Fireman’s Fund argues.
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