2:25pm PT by Eriq Gardner
'Midnight Rider' Insurer Tells Judge It Doesn't Have to Cover Criminal Acts
New York Marine and General Insurance Company is looking to disclaim any payment responsibility for what happened on Feb. 20, 2014, when during the shooting of the Gregg Allman biopic Midnight Rider in Georgia, a train collision killed camera assistant Sarah Jones and left other crewmembers injured. On Wednesday, the insurer filed a summary judgment motion that argues that it doesn't have to cover losses resulting from criminal acts.
Film Allman LLC, the Midnight Rider production company, has brought a lawsuit against New York Marine for allegedly breaching contract and good faith. Although Midnight Rider director Randall Miller pled guilty to involuntary manslaughter, the film company alleges the insurer "sabotaged" the film. According to the complaint, the insurance company refused its request for its own lawyers in the separate wrongful death lawsuit brought by Jones' family, made a $5 million settlement there without consultation and later told producers that the settlement exhausted the limits on their policies. There's also talk in the court papers of how producers aimed to restart production on Midnight Rider before the parties began quarreling over insurance coverage.
Now, the insurance dispute is possibly getting closer to trial, but New York Marine aims to have a judge rule in its favor as a matter of law.
"It is a crime in the state of Georgia to enter upon the property of another after receiving notice from the owner that such entry is forbidden," opens the summary judgment brief. "On February 20, 2014, Plaintiff's film production crew did exactly that. They entered upon railroad property, placed a hospital bed across the track, and filmed a movie scene after the railroad had twice denied them permission to access its property in Wayne County, Georgia."
New York Marine says that the insurance policy in question expressly states that it will not pay for losses resulting from criminal acts and that California has held that such exclusions are "clear, unambiguous, and enforceable."
The insurer points to Miller's guilty plea in March 2015 and his sentence of 10 years, with two years' imprisonment in a county jail and the remainder on probation. The insurer further nods to how assistant director Hillary Schwartz was tried and found guilty and how line producer Jay Sedrish was found guilty after taking an Alford plea. The plaintiff says the three also admitted in proceedings at the Occupational Safety and Health Administration they entered railroad property after being told they could not.
Deposition testimony given last month from Miller, released Wednesday, also speaks of what occurred.
"We shot a number of close-ups on the side of the track, we shot close-ups of [Gregg Allman's character] in the bed on the track," testified Miller. "We shot various wide angles, and we were shooting a wider shot and in the distance, there was a light in the distance and someone yelled 'Train.'... A few of the crew ran on to try to — to get the bed off. As they were carrying the bed off, it fell apart. I reached to try and help get the bed off as the two other guys who were carrying it ran away."
Miller said at his deposition that he lost his balance, fell down, was pinned by the bed and blacked out.
"The still photographer who had been videotaping the whole time I came to find out pulled me off — off the track and I ended up on the side of the metal piece of the walkway looking up at the undercarriage of the train as it was going over."
Miller says that after he got up, he turned back, and dazed, he saw a body.
"I didn't know who it was, and I said, 'Oh, my God. Someone's dead."
In March, Miller was released from jail after completing just over half of his sentence. The plea agreement he reached was found to have been improper. Under Georgia's "first offender" statute, there's the possibility of later exoneration and the potential his record will be expunged, but New York Marine tells a judge Wednesday that any hopeful speculation is a "red herring."
"Also, Miller’s recent assertion that he did not intend to commit a crime does not create a triable issue," the insurer continues. "First, it does not change the fact that Sedrish and Schwartz admitted they knew they were trespassing, which alone establishes that the loss was caused by criminal acts of Plaintiff’s employees. Second, it ignores Miller’s own admission, under oath, that he actually did commit the act constituting the crime."
A hearing to consider summary judgment arguments is scheduled for Nov. 7.
Meanwhile, according to Miller's Sept. 8 deposition, Rayonier — the timber company that was landowner of the tracks where the accident happened — has filed claims to try to get back money they paid to the Jones family. He reports that a couple of the detectives and the district attorney have recently testified.
"We have been deposing various people to try and determine if we can figure out the truth of what happened," said Miller.
Miller also said that his company still holds rights to the Gregg Allman biopic and that there's been no discussion of selling those.