If the deceased cinematographer is considered an employee of the production company, then workers’ compensation coverage applies. However, it may not be that straightforward. Workers’ compensation pays for accidental injuries that arise out of and in the course of employment. So far, so good. However, many states have exceptions when willful misconduct or safety rule violations result in an accident.
In late October 2021, tragedy struck on the set of the movie “Rust” when live rounds were mistakenly fired, killing one person and injuring another. With a variety of coverage possibly at play in this devastating event, here is a comprehensive look at the way different insurance policies could be involved. (Note that we have no inside information regarding this tragedy; our list below is based on our knowledge of the many policies that could be involved in similar tragedies.)
First, some background on the incident: Sixteen crew and cast members were working in a church at the Bonanza Creek Ranch, a popular filming location in Santa Fe, New Mexico. Joel Souza, the director, huddled behind cinematographer Halyna Hutchins lining up possible camera shots. Armorer Hannah Gutierrez Reed prepared three guns serving as props and placed them on a cart for use by the actors.
Dave Halls, the assistant director, allegedly picked up one of the guns and declared the gun to be “cold,” meaning it did not have any live ammunition including blanks within. Halls handed the gun to actor Alec Baldwin, who began rehearsing a scene that involved pulling the revolver from its holster and aiming it toward the camera. During the second rehearsal of the scene, the gun went off, with a live round striking first Hutchins and then Souza.
Hutchins was hit in the chest and pronounced dead after being taken by helicopter to a hospital in Albuquerque, while Souza was treated at a hospital and released the same day. Immediately an investigation began as to who was responsible for live rounds being on the set, who loaded the gun, why wasn’t the gun checked by Halls and who ultimately bears responsibility for the death of an up-and-coming cinematographer.
Workers’ compensation is the first place to look. If the deceased cinematographer is considered an employee of the production company, then workers’ compensation coverage applies. However, it may not be that straightforward. Workers’ compensation pays for accidental injuries that arise out of and in the course of employment. So far, so good. However, many states have exceptions when willful misconduct or safety rule violations result in an accident. Depending on the results of the investigation and the safety requirements for the movie set, this could come into play.
Multiple states may be involved, however. The accident occurred in New Mexico, but the state Hutchins and her family live in could come into play as well. Her heirs could file a claim in the location most beneficial to them.
Workers’ compensation pays for funeral expenses for the death of an employee, income replacement for a given time period and benefits to her minor children until they reach a certain age.
The “Business Insider” published a copy of the certificate of liability insurance for the movie productions, reportedly obtained via public records request from the Santa Fe Film Studio. The certificate was issued to Rust Movie Productions, LLC identifying the liability and workers’ compensation insurer as Chubb National Insurance.
The workers’ compensation insurance was shown at the statutory limits of $1 million for each accident, each employee and a disease policy limit of $1 million. The description of operations included the following: Media Services Processing Inc & Media Payroll LLC , its parents, subsidiaries, affiliated companies, officers, directors, agents, and employees are named as additional insured.
New Mexico rules dictate that workers’ compensation is the sole remedy for workers’ injuries, with the employee assuming all risks in their line of duty. With no defenses or negligence permitted regardless of whether the injury or death was sustained by the employer’s negligence or due in any part to a lack of ordinary care of a fellow servant.
Regardless, any and all causes of action, suits, and common law rights and remedies are unavailable outside the state’s workers’ compensation act. As such, the employee death benefit (not including dependents) is a maximum of $7,500 plus earned compensation. Other than a widow/widower or children, no dependent may be paid total benefits in excess of $7,500; exclusive of funeral expenses and the expenses provided for medical and hospital services for the deceased paid by the employer.
If the child is living with the father, the statute states that he is entitled to 45% of the weekly compensation benefits as provided in the statute and 55% divided equally to the child. If the spouse remarries, two years’ compensation shall be paid in a lump sum.
General liability, umbrella
The commercial general liability (CGL) policy covers bodily injury or property damage to third parties, not the insured. Since employees of the insured are covered as insureds, the general liability policy would not be available to the employees of Rust Production LLC. The limited medical payments coverage under the CGL would be available to cover the medical expenses at the time of the shooting. The medical payments coverage applies regardless of fault.
Even though the certificate of liability insurance provides for an umbrella limit of $5 million for the Rust Movie Productions LLC, the standard umbrella policy does not provide excess limits of workers’ compensation beyond the state’s statutory limits.
Depending upon the laws of the state where suit may be brought, that state may permit an action against the insured’s general liability policy for negligence. The general liability policy provides for an insured’s defense in any action made against the insured for bodily injury . However, the general liability policy includes employees of the movie production as insureds; therefore, an insured may not bring suit against itself for coverage.
The most obvious coverage is life insurance. Hutchins may have had a personal life insurance policy, payable to her husband or a trust.
Generally, carriers require the original policy and an official death certificate in order to pay the beneficiary. Once received, however, payment is generally swift. In this case, the cause of death is not excluded, so payment would be made once the death certificate is received. Death certificates take a week or two to be issued to the representative of the estate or the family.