Canadian Lawyer InHouse

Industry Spotlight The buzz on show biz insurance Following on the heels of the Michael Jackson wrongful death lawsuit against AEG Live, will concert promoters and arises because of the performer or people the performer has hired or engaged, says venues beef up insurance policies? Tarantino. By Vawn Himmelsbach Michael Jackson's death may have come as a shock to fans and concertgoers back in 2009, but it's currently causing a kerfuffle in the insurance industry. Performers, as well as their promoters, venues, and other third parties, typically carry insurance against unforeseen circumstances that could affect an event or tour, such as illness, equipment failure, or transportation delays. But in this case, Jackson's family filed a wrongful death lawsuit against AEG Live, alleging the promoter negligently hired Dr. Conrad Murray (who was convicted for manslaughter in Jackson's death for administering a fatal dose of the anesthetic propofol). In October, an L.A. jury found AEG not liable; the promoter argued Jackson's prescription drug addiction predated its deal. Though the promoter was found not liable, there's been talk of insurers beefing up their policies, perhaps carrying more exclusions or requiring stars to indemnify their staff, such as a personal physician or bodyguard (if Jackson's family had won the lawsuit, damages were expected to exceed $1 billion). But in Canada, the ruling may have more subtle effects. "I'd be surprised if it had a really material effect," says Bob Tarantino, a partner in the entertainment law group at Heenan Blaikie LLP. "Insurance policies and insurance contracts — they're not exactly underlawyered. They're fairly tight to begin with." 38 • This type of litigation is more circumspect in a Canadian context, he added. But, a case such as this prompts people to take a closer look at their policies. The lawsuit itself was unusual, says Miro Oballa, a partner with Taylor Klein Oballa LLP, which provides services for celebrities such as Drake and producer Cirkut (who produces Rihanna and Britney Spears). Oballa hasn't heard of the decision affecting too many cases in Canada. "The concerns from that decision are less about insurance policy and more about the potential negligence which may have voided that particular insurance policy," he says. An artist's insurance is already pretty tailored, he added. The insurer will look at an individual's history and, on that basis, could request disclosure of past illnesses, medical troubles, or mental illness. Insurance is intended to cover events that nobody could have foreseen —  not events that result from a pre-existing condition. If a performer, for example, is a known drug addict, this will affect the performer's coverage. Typically, though, insurance covers less sensational items, such as injury or illness, equipment failure or theft, and transportation difficulties (such as the tour bus breaking down and delaying a performance). Items that are typically not covered are those arising from a pre-existing medical condition or from highrisk activities, such as motorcycle racing. The primary way in which promoters or other third parties may alter their policies is to make it clear they are excluding any coverage for any adverse event that d ec em b er 2013/january2014 INHOUSE So, if the performer hired a doctor that misprescribed medication, the performer would be responsible for that. That's already the case in the film and television industries, where insurers conduct medical exams and do their own research into the backgrounds of performers. "That will probably become more comprehensive," says Tarantino. The question, typically, is who is at fault — the band, the promoter, the venue, or some other third party? "If I'm the person who has been injured I'm going to sue everybody," says Tarantino. People tend to sue as many people as possible and then let the court and insurance companies figure out who is responsible for what. Sometimes it's relatively clear, such as a stage collapse. Other times it's less clear; if an audience member is injured during a concert, one could argue that the band was egging on the audience and playing increasingly aggressive music. Oftentimes business promoters and staging companies will subcontract third parties for an event, says Alan Hollingsworth, vice president, partner, and practice team leader with Hub International Ltd., a global insurance brokerage that works with a number of promoters in Canada. As a result of several high-publicity stage collapses of late, the whole industry has had to tighten up, including third parties — and this may be having more of an effect on the industry than the Michael Jackson ruling. In June, for example, 13 charges were laid in relation to a stage collapse last year prior to a Radiohead concert in Toronto's Downsview Park, killing a drum technician

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