10:53am PT by Eriq Gardner
Michael Jackson Company: Singer Fit to Perform Before Death
Ever since Michael Jackson died on June 25, 2009, there's been almost nonstop action in courts. Last year, Katherine Jackson and the rest of the singer's family pursued AEG Live on the theory that the concert promoter had pushed the King of Pop to the edge. The effort was unsuccessful, but get ready for another possible trial examining the circumstances surrounding the performer's death.
This one puts the handlers for the Jackson estate on the same side as AEG Live. Together, they are defending a lawsuit brought by underwriters at Lloyd's of London wishing to get out of paying a $17.5 million insurance policy on the This Is It tour.
Here, the Michael Jackson Company presents the singer in fine condition.
"As to the issue of Mr. Jackson's fitness to perform, that is conclusively proved by the footage of Mr. Jackson rehearsing on June 23 and 24, 2009, immediately prior to his death," says court papers filed on Dec. 31 by the Michael Jackson Company (an entity set up by the singer and now controlled by executors of his estate). "This footage, which was compiled into the motion picture This Is It clearly shows that Mr. Jackson was not only fit to perform in concert, but that he could still do so brilliantly."
In the lawsuit, Lloyd's of London asserts it was misled about the singer's health. The insurance underwriters point to some of the same AEG Live internal emails that were presented to a jury by Jackson's family last year. Those emails allegedly show that AEG tried to hide his deteriorating health. The insurer says it would have refused an "accident" policy had the singer's true condition been revealed.
A trial is tentatively scheduled for February. First, a judge considers the plaintiff's summary judgment motion and the defendants' opposition.
According to documents in the case, AEG looked to secure cancelation insurance in January 2009. The concert promoter went to a London-based insurance broker, which allegedly was aware of the "almost daily" press about Jackson and therefore recommended the singer be examined by a doctor.
On Feb. 4, Jackson was examined by Dr. David Slavit, a New York-based ear, nose and throat doctor who found the singer to be in "good health" and "excellent condition."
The insurance broker then presented the This Is It tour risk to insurers in the Lloyd's market and provided details about the planned concerts as well as a history of Jackson's touring (including past concerts given and canceled by the singer).
Several underwriters responded. The insurers agreed to "accident" coverage but not "illness" coverage until Jackson could be examined by another doctor. An in-depth medical examination was scheduled to take place in early July 2009. Of course, Jackson died first.
A day after the singer's death, an executive at one of the underwriters wrote in an email that an employee handling the coverage application "had taken a good decision on this risk in my view as he hadn't believed the medicals."
But the Michael Jackson Company believes that nothing about the "illness" coverage holdup did anything to negate the "accident" coverage. Further, the defendant says, "The record shows that there is no evidence establishing that MJC made false representations to Underwriters."
The only representations made by Michael Jackson, says his company, were to Dr. Slavit, retained by the broker, not the underwriter. According to the defendant's legal papers, "Putting aside the issues of whether Underwriters in fact relied on the Slavit exam and whether it was material to the issuance of 'accident' coverage, there is no evidence that the purported representations about Michael Jackson being in good health and fit to perform were false. All of the evidence in fact proves them true."
The Michael Jackson Company points to other evidence, including personal trainer Lou Ferrigno's testimony that the singer "looked great," the Los Angeles Coroner's Office conclusion that Jackson's general health was "excellent" prior to his death, and This Is It director Kenny Ortega's testimony that the singer was fit to perform.
And as for Jackson's reported drug addiction? From the court papers:
"MJC acknowledges that negative press, speculation and rumors have abounded about Mr. Jackson both before and after his death. Media speculation, rumors and opinions cannot be the evidentiary basis for a finding that Michael Jackson was abusing drugs in Feb. 2009 when he appeared for the Slavit exam, or in April 2009 when the Policy issued."
On Friday, Katherine Jackson is due back in court in a motion for a new trial in her case against AEG Live. No matter what happens tomorrow, however, it won't be the end of the legal fussing over Jackson's death. Next comes a Jan. 15 summary judgment hearing in the insurance dispute.
In other words, right after one judge decides whether Jackson's family gets another shot to prove AEG negligently hired and supervised Dr. Conrad Murray for administering him a fatal dose of propofol, Jackson's estate will attempt to persuade a different judge that insurers have failed in demonstrating any wrongdoing by those preparing the This Is It tour.
Or, as the estate puts it, "Michael Jackson's death was an 'accident' under the policy."