The accidental shooting that resulted in the tragic death of cinematographer Halyna Hutchins on the set of the film Rust could lead to a “tremendous legal fallout,” Time magazine recently reported. Reports indicate that Hutchins died after producer and actor Alec Baldwin fired a prop gun that contained a live round. Director Joel Souza was also injured in the shooting but has been released from the hospital. Authorities are continuing to investigate the incident, which took place at a film set in New Mexico on Oct. 21.
While it remains to be seen whether Baldwin will face criminal or civil liability over the tragedy, experts told Time that he and others in leadership positions for the film could face questions over alleged negligence on the set, including reports of other gun mishaps, and that eventual lawsuit payouts could be in the “millions and millions” of dollars. Hutchins’ husband recently hired an attorney in connection with the shooting, Reuters reported on Nov. 3.
This type of disaster, though exceedingly rare, is a producer’s “worst nightmare,” said Matt Lawford, Broker, Advertising and Film Production, Chesterfield Group, a subsidiary of H.W. Kaufman Group.
“At the end of the day, somebody is accountable for what happened,” he said. “It is a tragic event. Someone did not do their job properly.”
Film production companies generally need to carry Feature Film Production Insurance, which could cover expenses related to this type of incident. Specifics of the coverage may vary, however, and criminal charges could play a role in how an insurance carrier responds.
“Some insurance policies can actually be voided on the basis that there is a legal incident involved,” he said.
‘Absolutely no way’ live ammunition should be on a film set
On Oct. 23, The New York Times reported at least two other accidental discharges occurred on the Rust set prior to the fatal shooting. According to a report from TMZ on Oct. 23, crew members may have used live ammunition for target practice on set. However, Jason Bowles, an attorney for Rust armorer Hannah Gutierrez Reed, reportedly told Good Morning America on Nov. 3 that reports of target practice on set are untrue and that he feared someone could have intentionally sabotaged the set.
At the end of the day, somebody is accountable for what happened. It is a tragic event. Someone did not do their job properly.
Regardless of the circumstances that led to the shooting, “there should be absolutely no way that live ammunition is kept on a film set,” Lawford emphasized. “If we were providing the insurance for a film production, we would obviously ask for a lot of information, including risk assessments on any Western gun shootouts. There is no way that any insurer worth their salt will condone live ammunition being mixed in with blanks, because it is a disaster waiting to happen. Live ammunition should never, ever be allowed on a set.”
Reports of negligence on the Rust set could heighten the potential liability for whoever is ultimately found to be responsible, Lawford said. “As far as the courts are concerned, it can definitely make things a lot worse,” he said. In this case, the production company and head of the film’s armory department may be the most likely entities to face liability.
When a film company obtains Feature Film Production Insurance for a production, it is usually an all-encompassing package that covers a variety of risks and includes Workers’ Compensation Insurance and Commercial General Liability Insurance. Most films will require a primary policy as well as an Excess Liability Insurance policy to obtain high enough limits for the production’s exposure.
“This policy can cover all of the cast, the crew, and even the armory director, who could be covered as a subcontractor to the main production unit,” Lawford explained, noting that covered expenses can include legal defense, injury-related medical costs, property damage, and eventual settlements. “A film may carry insurance as high as $20 million, and in this case, if insurers were to accept liability on this, I would expect that the limit is 100% going to be breached.”
Hutchins was just 42 years old when she was killed, Lawford pointed out. “She was at the top of her game, with probably another 10 or 15 years of work availability — and she had a family,” he said. “All of that would be taken into consideration by a court of law.”
Litigation could also come from the director who was injured, as well as other crew members on set who witnessed the incident. “It is going to be significant,” Lawford said of the eventual payouts.
Equipment breakdown, crew illness among other possible covered losses
According to a Sky News article from Nov. 7, lamp operator and pipe rigger Jason Miller is reportedly in the hospital and facing multiple surgeries after being bitten by a venomous brown recluse spider on the Rust set.
Feature Film Production Insurance can also cover the non-appearance of any cast or crew member, for a cause beyond their control, that may impact the film’s budget. If a lead actor is out sick for a week, for example, the policy could pick up the additional production cost for that week.
In addition, these policies can extend to “all risks,” including the set, wardrobe, cameras, or props, Lawford said.
“It can also cover digital media, meaning if there is damage to the format on which the movie is being filmed. If any of the footage got lost or damaged, and therefore needed to be reshot, the insurance can pick up those additional costs,” Lawford said. “The breakdown of any equipment can also be covered. If a camera failed and it took two days to get a replacement camera, those additional costs could be covered by the Feature Film Production Insurance package.”
It is all about the risk management. We would expect risk assessments to be done on anything that is deemed to be even slightly hazardous on set.
Some film productions will also require Errors & Omissions (E&O) Insurance, which generally needs to be purchased near the end of a film production before the film is sold. “It will protect you in the event that there is something you filmed and did not have the right permissions to include it,” Lawford explained.
Most Feature Film Production Insurance policies will include legal defense costs “outside of the limits,” meaning these expenses will not cut into the policy’s overall liability limit. “The simple reason is that if you are defending an action, you cannot use up the entire liability limit to defend it, and then there is no money to pay out for the injured party,” he added.
Movie sets, individual scenes require constant risk assessments
Feature Film Production Insurance may come with a completion bond, which can pick up the cost of production spent up to that date if certain covered losses occur. This may be unlikely in the Rust scenario, however, because of the nature of the shooting incident. “This appears to be pure negligence on behalf of individuals involved in the film itself,” he said.
According to an Oct. 22 New York Times report, at least 194 serious television- and film-set accidents and at least 43 deaths have occurred in the U.S. between 1990 to 2014. Still, while all film productions involve some level of risk, serious incidents are extremely rare.
“It is horrendous to see these things, but thankfully, of all the movies and commercials that are made, the number of incidents is miniscule,” Lawford said. “There are very few deaths or bad incidents, and it shows in the relatively low rates.”
You do not go to any insurer for this insurance — you go to a specialized film insurer, because they know exactly what the production company is looking for.
Assessing and managing risks in this industry is crucial. On a film set, the crew should know exactly where to be and what will happen in every scene, for example, he said. Films involving firearms should have policies around cleaning and testing the weapons, communicating with crew, and documenting the steps.
“It is all about the risk management,” Lawford said. “We would expect risk assessments to be done on anything that is deemed to be even slightly hazardous on set. The cast and crew should have a call sheet every day with a risk assessment attached to the call sheet so all the crew and cast can review it and be aware of what is going to happen.”
In addition to protecting the company’s assets, production studios should know that purchasing Feature Film Production Insurance is a key component of operating with professionalism in an industry that is closely connected.
“This is a very small industry, and if there is anyone trying not to take out the coverage they need, another insurer is not going to work with them either,” Lawford said. “You do not go to any insurer for this insurance — you go to a specialized film insurer, because they know exactly what the production company is looking for.”
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