No satisfaction as Rolling Stones insurer denied case dismissal
The insurer of a Rolling Stones concert has failed in an attempt to have a claim arising from the gig thrown out of court. The case centres on a couple who were injured when they tripped over a kerb at a Stones gig in Indianapolis in 2015. They claimed the venue breached its duty of care by failing to provide enough lighting. The venue sued the promoter and its insurer, New York Marine and General Insurance Company. However, the carrier's assertion that the claim was not properly made was dismissed by a federal magistrate judge    

This past Monday, August 14, a federal magistrate judge explained to an insurer that “you can’t always get what you want” when he denied the carrier’s motion to dismiss claims arising from a July 4, 2015 Rolling Stones concert, concluding that the facts in the complaint allege a properly pled claim.

The claim at issue in Indianapolis Motor Speedway, LLC v. Global Live, Inc. et al., No. 1:17-cv-01743-JMS-MPB (S.D. Ind. Aug. 14, 2017) involved a claim for defense and indemnity under a general liability policy specifically tailored for the Rolling Stones concert.

Indianapolis Motor Speedway, LLC (“IMS”), and Global Live, Inc. (“Global Live”) entered into a Special Event Agreement in April 2015 that allowed Global Live to host a concert featuring the Rolling Stones on July 4, 2015 at IMS’s racetrack. As part of the Special Event Agreement, Global Live was required to provide Event Insurance to IMS. New York Marine and General Insurance Company, also referred to as ProSight Insurance Group, Inc. (“ProSight”), issued a commercial general liability policy to Global Live, and the Certificate of Insurance listed IMS as the Certificate Holder.

The underlying claimants, Pamela and William Shepard, attended the concert and were injured when they tripped over a curb while walking through a tunnel at IMS. They filed suit against IMS alleging that IMS breached its duty of care by failing to provide adequate illumination for business invitees exiting the concert.

IMS subsequently sued Global Live and ProSight alleging claims for breach of contract against both companies and breach of the duty of good faith and fair dealing against ProSight. IMS additionally sought a declaratory judgment that ProSight is obligated to provide insurance coverage for any and all claims arising in the underlying lawsuit. Global Live and ProSight moved to dismiss IMS’s complaint for failure to state a claim arguing IMS was not an additional insured under the policy and that coverage is limited to claims arising from Global Live’s negligence, not the negligence of IMS.

Analyzing only the allegations of the complaint, the court distilled the parties arguments to whether the complaint stated a valid cause of action. The court found that it did, concluding that,

IMS allege[d] in the Complaint that Global Live was obligated under the Event Agreement to obtain event insurance for all claims arising from the Event, that the Policy was to provide coverage for Global Live’s obligations to IMS, that the Policy was to explicitly include IMS “as an additional insured under the Policy,” and that the coverage provided to IMS was to be “primary to any other coverage(s) available to IMS.”

Consequently, the allegations supported IMS’s claims for breach of contract and breach of the duty of good faith and fair dealing. Additionally, the court stated that the resolution for associated issues was better saved for discovery.

With large performances come large crowds. So, too, comes a large risk of injury and resulting third-party liability claims. While many entertainment-related insurance products are designed to protect producers, promotors, landlords, vendors, and others from first-party losses, such as business interruption and related commercial property losses when events are cancelled or postponed, vendors still need to ensure protection against third-party claims. Companies in the entertainment industry should contact experienced coverage counsel to assist in drafting policy language covering specific events to ensure that they are protected from claims arising from large performances and to pursue the claims, if needed, to ensure that policyholders maximize their insurance coverage.