The oft-told story about what happened during production of the Gregg Allman biopic Midnight Rider on Feb. 20, 2014 is that the film crew, having been denied permission to shoot on Wayne County, Ga. train tracks, entered private property anyway and a subsequent train collision killed camera assistant Sarah Jones and left other crewmembers injured.
But what if the filmmakers weren't denied permission? It obviously wouldn't change the tragic fact that Jones couldn't get away from a train barreling forward at an estimated 57 miles per hour, but does it cast a different light on Midnight Rider director Randall Miller and others involved in the film who pled guilty to criminal trespass and involuntary manslaughter?
On Thursday, explosive new papers were filed in an ongoing insurance dispute allegedly revealing that key evidence used to indict Miller might not be so key anymore. There's also new video, an insurance company's conflict, a suggestion made by one of the insurer's employees of driving Miller into bankruptcy, plus more. Now, Miller and producer Jody Savin want to be added as plaintiffs in a proposed amended complaint against New York Marine and General Insurance Company to assert coverage and bad faith.
The development occurs just days after New York Marine filed a summary judgment motion arguing it isn't responsible for providing coverage for criminal acts. The insurer points to Miller's guilty plea in March 2015, his deposition last month, and what Miller and others told the Occupational Safety and Health Administration to support the position that filmmakers entered railroad property after being told they could not.
But Film Allman LLC is now coming forward with a newly discovered email sent by Carla Groleau at CSX, the train rail company, that "recalled" a prior message that the Midnight Rider producers say had been used by criminal prosecutors and OSHA to indicate that CSX withheld its permission to use its tracks. The first e-mail from CSX to a Midnight Rider location manager stated the train company was "not able to support your request," but quickly afterwards, Groleau appears to have attempted to rescind the message.
The problem, implied by the court papers, is that CSX had an agreement with Rayonier - the timber company that was landowner of the tracks where the Midnight Rider accident happened - that allowed Rayonier to conduct certain operations on CSX tracks. Denying permission to use the tracks might not have been simple.
During a deposition, John Johnson, the prosecutor who indicted Miller, was shown a photograph of a Rayonier employee at the accident site and was asked whether this person was trespassing. Johnson responded it would be a matter of interpretation because of the CSX-Rayonier agreement. Later in the deposition, Johnson was asked about the presence of other mill workers at the scene of the crash and whether he interviewed them. The prosecutor didn't.
"If they had colluded with the film crew in any way... to be on the bridge, you don't think that would be significant?" asked the film company's attorney.
"I have no evidence of that," responded Johnson.
Midnight Rider producers say that the insurer's lawyers "either failed to discover" the CSX-Rayonier agreement "or failed to advise" them about the agreement "even though the existence of such agreement would have been useful in both the civil and criminal defenses defeating the trespassing allegations, and would defeat New York Marine's coverage defense regarding the Producer Policy based on allegations of trespass. New York Marine knew or should have known that Rayonier knew that CSX had not expressly denied permission to shoot on its tracks..."
And why would the insurance company have withheld evidence that may have helped Miller and others on Midnight Rider rebut the charge they were on the property illegally?
According to the producers, New York Marine had represented CSX in other matters before having its attorney, Matthew Jones, represent them in the Sarah Jones wrongful death case. The insurance company thus allegedly had a conflict, but "neglected to inform" producers of these past representations.
The CSX-Rayonier agreement isn't the only piece of evidence that producers now have in their possession. Film Allman's lawyer Doug Gastelum also says he has now obtained CSX locomotive videos "similar to aircraft 'black box' data" from the insurance company even though on June 3, New York Marine's lawyer testified in a deposition that he never had or seen the videos. (Back in March, 2015, ABC's 20/20 aired chilling video of the train accident after the footage was shown in court in the criminal prosecutions. It's not clear yet how the footage differs, if at all, or what purpose it would serve.)
Among the other pieces of new evidence brought to light in the latest court papers is how New York Marine responded when faced with the possibility of providing coverage for the Midnight Rider production.
On March 19, 2015, an insurance employee named Jill Pompeii wrote that the policies had already been exhausted (Sarah Jones' family got a $5 million settlement in a wrongful death lawsuit) and that the insurance company would be arguing against ongoing obligations.
"On the production side, things have gotten a bit odd with Randy Miller's recent criminal sentence," Pompeii wrote in an internal email. "We're going to push a bit to get that case dismissed, but if they refuse, we'll have to force them to do some work in hopes that we'll force their hand to file bankruptcy, which will stay the case."
Now, the Midnight Rider producers have erupted in outrage over this discovery.
"New York Marine opted to delay and impede progress on the claim, even considering how it could force insureds into bankruptcy," states the proposed amended complaint. "New York Marine's bad faith conduct left Plaintiffs with the prospect of having to abandon production entirely. In a classic 'Catch 22,' Plaintiffs could not proceed with the Film without obtaining its insurance proceeds, and it could not obtain its insurance proceeds until it continued filming. In addition, delays in restarting production of the Film, caused in large part by the lack of secure funding under the Producers Policy resulted in delay until a criminal prosecution of Miller and Savin was set for trial. The postponement has resulted in these insureds having been unable to make any film since before commencing production of Midnight Rider in 2013, damaging their careers as managers, film producers, writers, and director."
We've reached out to the attorney for New York Marine and will provide any response given.