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Around the year-end holidays, news of tragic deaths is as shocking as it is heartbreaking. Just last month, ten people lost their lives from being trampled or crushed to death at a music festival in Houston, Texas. One of them was only 9 years old. In addition to the death toll, hundreds of the 50,000-person crowd were reportedly injured before the festival was cancelled. There were several reports of concert goers falling unconscious from not being able to breathe in the crowd as it rushed toward the stage during the countdown to rapper Travis Scott’s arrival and others being pushed against each other when panic spread outward toward the exit and barricades (that reportedly could not be seen because the crowd was so dense) while the performance continued for over an hour. Some said they tried to scream for help during the breaks between the songs to no avail. The authorities declared it a “mass casualty event” at 9:38 PM, but the concert was not stopped until around 10:10 PM. While an event of this magnitude typically requires public safety plans and advance approval by local government, the event operations plan reportedly did not contain a specific plan for crowd surge despite three known trampling injuries during the last Astroworld festival in November 2019, and the fire department right outside did not have any radio communication access to the medics the event organizers hired, only cell numbers. The alarming accounts of the tragedy led to many questions about how this could have happened, especially during the Covid pandemic. It also led me to consider some of the insurance coverage implications, especially since nearly 100 lawsuits have already been filed. The named defendants include Scott, who was an organizer of the Astroworld festival; Live Nation, the promotor; NRG Park, where the festival took place; and others, such as contracted service providers for the festival.
Which insurance coverages would be implicated depend on the specific allegations and evidence established as to how a person or entity covered by an insurance policy should be responsible for the injuries or damages claimed. If any third-party contractors or performers claim damages resulting from the decision to stop the concert early that night or cancel the second day of the festival, their claims may trigger coverage under an event cancellation insurance policy. (Such a policy would also include first-party coverage to pay the named policyholder for revenue loss, nonrefundable down payments, or other expenses that still had to be paid out despite cancellation.) If any employees were physically injured, their claims may trigger coverage under a workers’ compensation insurance policy. On the other hand, attendees’ personal injuries could trigger coverage under a commercial general liability (CGL) policy or a special event insurance policy.
Standard CGL policies provide coverage for certain occurrences, where “occurrence” is defined as an “accident” including continuous or repeated exposure to substantially the same general harmful conditions, but “accident” is left undefined. Courts typically emphasize the unintentional nature of an “accident” based on its common meaning, but can’t being crushed by others be an intentional assault and battery? CGL policies typically contain an exclusion for assault and battery that specify that the exclusion applies even if negligence or premises liability type allegations are brought for acts or omissions in connection with preventing or suppressing assault or battery, including inadequate security. While special event insurance would likely be based off CGL forms, it would typically be more tailored to the risks of a festival such as this one. Therefore, it is possible a special event policy would have an endorsement to grant some assault and battery coverage. Whether the coverages the above defendants did obtain would be enough for horrific events of this scale is another story.
Another consideration is an insurance policy’s “Other Insurance” provision. Multiple persons and entities were potentially involved in the crowd surge injuries—from the initial public safety plans, including the training and implementation of same; to the number and locations of guests, vendors, security or medical providers, and barriers; as well as the decision making on communications and continuing the festival after initial and continued reports of dangerous conditions—and they might be covered as insureds or additional insureds under the same policies. “Other Insurance” clauses are included in policies to deal with the possibility of more than one insurance policy providing coverage for the same loss. One “Other Insurance” clause might be an “escape clause” that will not cover the loss if other insurance is available. Another “Other Insurance” clause might provide that if there is any other collectible insurance available, then that policy will be “primary” and this policy will be “excess” and not trigger coverage until the “primary” policy’s limits are exhausted. Other “Other Insurance” clauses might provide that each policy shall bear a “pro rata” share proportionate to the applicable limits. Because policies could have the same “Other Insurance” provision to all simultaneously be “excess” over each other such that there in effect is no “primary” policy, courts will typically deem the clauses mutually repugnant to each other and find all those policies to be “primary,” to be apportioned “pro rata.” If one policy’s clause is “pro rata,” and the other’s is “excess,” the majority rule is that the “pro rata” clause policy will be “primary” and not share “pro rata” with the other policy, which will be “excess” over the “primary.” Confused yet? Without a doubt, the multitude of insurance issues to resolve will be complex in cases like these, where so much will be at stake for so many.