United States: Insurance Coverage For Astroworld: Travis Scott's Intent Should Not Be A Factor For Insurance Coverage

In the wake of the recent tragic events at the music festival, Astroworld, in which at least 10 people lost their lives and hundreds more were injured, the festival's insurers should honor their coverage obligations and defend and resolve the lawsuits that have already begun to accrue.¹ But, insurance coverage for the Astroworld tragedy will be an issue.

No small amount of blame for the Astroworld tragedy has been laid at the hands of the festival's showrunner, Travis Scott. Characterizations of Scott's past statements and the often-chaotic nature of his shows have become the focus of heavy criticism, with several of the pending lawsuits against Scott and Live Nation Worldwide Inc. - the company that organized the festival -claiming he created "dangerous conditions for concertgoers."²

As tempting as it may be for some insurance companies to assume that the allegations against Scott foreclose coverage, their assertions are premature at best. Coverage will depend on Scott's actual intent when he took the stage that night. This is a fact-intensive inquiry that, at present, strongly suggests the Astroworld tragedy should be covered.

Travis Scott, "Raging" and Astroworld

Travis Scott is an artist who initially burst onto the scene because of his live performances, engendering a rowdy "kind of community-based catharsis" according to a recent New York Times article about the tragedy.³ He is known for purportedly encouraging his audiences to "rage," a term he has articulated to mean "having fun and expressing good feelings," but that has the look and effect of making his concerts feel like a professional wrestling match.⁴

Scott is alleged to have encouraged his audiences to take the "rage" experience too far. In 2017, a fan jumped from a second-floor balcony at one of his shows, resulting in partial paralysis.⁵ And on two occasions, Scott was arrested for purportedly urging fans to overwhelm security and join him onstage.⁶

Perhaps in anticipation of Scott's style, as well as experience with past Astro world festivals, Houston Police Chief Troy Finner reportedly "visited Scott in his trailer before the show and 'conveyed concerns about the energy in the crowd.'"⁷ Nonetheless, at Astroworld Scott supposedly "hyp[ed] the crowd to 'rage'" and exclaimed, "[y]a'll know what we came to do."⁸

Insurance Coverage Law Requires Us to Ask: What Did Travis Scott Intend?

Scott's history of allegedly encouraging his audiences to "rage" coupled with the warnings he received prior to his performance at Astroworld begs the most important question for insurance coverage - what did he intend?

Intent and liability in the festival or concert context commonly involves the adequacy of safety preparations and the foreseeability of injury. For example, in the 2011 case Berry v. SMG Facility Management Corp., the parents of a 16-year-old boy sued an event organizer and the band Attack Attack in New York Supreme Court, alleging the boy suffered injuries at the Vans Warped Tour because the band allegedly incited the crowd to mosh, i.e., dance violently.⁹

In Maxum Indemnity Co. v. Towne Pub Inc., the U.S. District Court for the Central District of Illinois held in 2018 that the insurance policy at issue excluded coverage based on an assault and battery exclusion for claims against rapper Dej Loaf for "encourage[ing] violence among the patrons attending and/or watching their concerts."¹⁰ Notably, this type of exclusion is not common in many policies covering music festivals.

And a similar coverage dispute is currently pending in Acceptance Casualty Insurance Co. v. MRVK Hospitality Group LLC, in which the U.S. District Court for the Central District of California is considering a suit by an insurer against its insured over whether an exclusion bars coverage for a rap concert where the insured allegedly "failed to have adequate security or searching for people entering onto the premises."¹¹

As with other types of liability, event liability insurance policies resolve the question of the insured's intent by insuring only against loss stemming from a fortuitous event, i.e., an accident. Often denominated an "occurrence" in the parlance of such policies, coverage requires that loss be due to "something unforeseen, unexpected, and unpremeditated"¹² such as loss due to bodily injury suffered by a third party at the insured event. In addition to insuring only accidents, event liability policies usually also explicitly exclude coverage for intentional wrongdoing.

Even though intent is often the central question, insureds need not be passive wallflowers in order to preserve coverage. In the 2007 decision, Lamar Homes Inc. v. Mid-Continent Casualty Co., the Texas Supreme Court explained that "a deliberate act, performed negligently, is an accident if the effect is not the intended or expected result; that is, the result would have been different had the deliberate act been performed correctly."¹³

In the context of "bodily injury," the U.S. District Court for the Southern District of Texas recently opined in Centauri Specialty Insurance Co. v. Phillips that even when an insured actively plans a series of events or actions, as long as the injuries that result were not "expected or intended from the standpoint of the insured," such injuries may nonetheless qualify as an accident.¹⁴

Furthermore, in King v. Dallas Fire Insurance Co., the Texas Supreme Court explained that "separation of insureds" clauses prevent imputation of the actions of one insured upon another when determining whether there has been an "occurrence."¹⁵ This means that if there are multiple insured parties involved in a loss, the alleged bad acts of one cannot be used against the other to determine whether there was an accident.

In other words, when evaluating whether bodily injuries are covered as an accident, coverage is not defeated merely because the insured may have acted, may have been negligent, or both. It is the insured's intent that matters.

Applying this framework to Scott and the Astroworld tragedy will be a fact-intensive inquiry that is unlikely to result in any quick determinations supporting any blanket denials of coverage.

Currently, there is no evidence that Scott actively encouraged the Astroworld audience to rush the stage such that he should have expected or intended any of the injuries that resulted from the stampede, at least for insurance coverage purposes.

And although much has been made of Scott's alleged past behavior, the fact that his music is loud, his lyrics at times suggestive, and his fan base erratic does not mean that Scott intended the injuries at Astroworld.

To the contrary, at one point Scott apparently paused the show and asked for security and "help real quick."¹⁶ And Scott has since said that he would have "stopped the show" entirely and found anyone injured "the help they needed" had he realized what was happening.¹⁷

To jump to the conclusion that Scott intended to do bodily harm to his fans is simply not supported by the evidence. Liability arising from the Astroworld tragedy should be covered, and any insurer protests to the contrary appear not to be based on the law or the facts.

Scott's economic interests also caution against jumping to conclusions that the atmosphere of his shows - raucous and engaging - is much more than a veneer of wildness. The mystique of his shows is reportedly a large part of the reason his crowds are so large, but those crowds would likely disappear if they knew they risked serious injury in attending. To that point, Scott and Live Nation apparently hired hundreds of private security guards for Astroworld in addition to those provided by the city of Houston, whose mayor has stated that there was "more security over there than we had at the World Series games."¹⁸

Conclusion

The present debate over what role, if any, Travis Scott's alleged support of "rage" audience culture played in the Astroworld tragedy should not obscure the fundamentals of event insurance policies, which were devised to provide coverage for precisely this type of catastrophic incident.

The festival's insurers should take note that they are obligated to look beyond the optics of the moment. There will be plenty of time for blame in the months and years to come, but placing blame on policyholders who purchased coverage for this exact kind of calamity is not warranted.

Footnotes

1 Y. Peter Yang, Travis Scott Concert Disaster Mobilizes Texas Plaintiffs Attys, Law360 (November 8, 2021), available at https://www.law360.com/articles/1438924/travis-scott-concert-disastermobilizes-texas-plaintiffs-attys (last accessed November 10, 2021).

2 Chris Willman, First Lawsuits Filed by Astroworld Festival Attendees Over Travis Scott Concert Disaster, Variety.com (November 7, 2021), available at

https://variety.com/2021/music/news/astroworld-lawsuits-filed-festival-injuries-1235106910/ (last accessed November 10, 2021).

3 Joe Coscarelli, Before the Astroworld Tragedy, Travis Scott's 'Raging' Made Him a Star, NYtimes.com (November 8, 2021), available at https://www.nytimes.com/2021/11/08/arts/music/travis-scott-astroworld-concerts.html (last accessed November 10, 2021).

4 Id.

5 Brian Hiatt, 'They Weren't Prepared': Experts Point to Missed Warning Signs at Astroworld, RollingStone.com (November 6, 2021), available at https://www.rollingstone.com/music/musicnews/warnings-Astroworld-fest-tragedy-1254261/ (last accessed November 10, 2021).

6 Daniel Kreps, Travis Scott Arrested After Fans Storm Lollapalooza Stage, RollingStone.com (August 3, 2015), available at https://www.rollingstone.com/music/music-news/travis-scottarrested-after-fans-storm-lollapalooza-stage-57069/ (last accessed November 10, 2021).

7 Téa Kvetenadze, Astroworld Tragedy: Travis Scott Was Warned, First Civil Suits Are Filed And Police Investigation In 'Early Stages,' Forbes.com (November 8, 2021), available at

https://www.forbes.com/sites/teakvetenadze/2021/11/08/astroworld-tragedy-travis-scott-waswarned-first-civil-suits-are-filed-and-police-investigation-in-early-stages/?sh=25829b2e5ac3 (last accessed November 10, 2021).

8 Juan A. Lozano, Crowd surge kills 8 at Travis Scott's Astroworld Festival concert in Houston, Associated Press (November 6, 2021), available at https://www.kxan.com/news/officials-8-deadmany-injured-at-Astroworld-fest-in-texas/ (last accessed November 10, 2021).

9 See Berry et. al. v. SMG Facility Management Corp., et al., Case No. 0001998/2011 (N.Y. Supreme Ct. 2011). 10 Maxum Indem. Co. v. Towne Pub Inc. , No. 17-CV-2211, 2018 WL 9878319 at *2-3 (C.D. Ill. July 9, 2018).

11 See Acceptance Cas. Ins. Co. v. MRVK Hosp. Co., Case No. 21-at-00880 (C.D. Cal. 2021).

12 1A John Alan Appleman & Jean Appleman, Insurance Law and Practice § 360 at 449 (1981).

13 Lamar Homes, Inc. v. Mid-Continent Cas. Co ., 242 S.W.3d 1, 8 (Tex. 2007).

14 See, e.g., Centauri Specialty Ins. Co. v. Phillips , No. 4:20-CV-02525, 2021 WL 4215481, at *4 (S.D. Tex. Sept. 15, 2021).

15 See King v. Dallas Fire Ins. Co ., 85 S.W.3d 185, 188 (Tex. 2002); see also Dugan Walker v. Lumbermens Mut. Cas. Co ., 491 S.W.2d 696, 698 (Tex. Civ. App. 1973).

16 Juan A. Lozano, Crowd surge kills 8 at Travis Scott's Astroworld Festival concert in Houston, Associated Press (November 6, 2021), available at https://www.kxan.com/news/officials-8-deadmany-injured-at-Astroworld-fest-in-texas/ (last accessed November 10, 2021).

17 Kalhan Rosenblatt, "'Broken and devastated': Kylie Jenner responds to Astroworld festival tragedy, NBCnews.com (November 7, 2021), available at https://www.nbcnews.com/popculture/pop-culture-news/broken-devastated-kylie-jenner-responds-Astroworld-festival-tragedyn1283428 (last accessed November 10, 2021).

18 Jem Aswad, Houston Mayor Says Astroworld 'Had More Security Than the World Series,' Promises 'Thorough Investigation,' Variety.com (November 6, 2021), available at https://variety.com/2021/music/news/houston-mayor-Astroworld-security-investigation-1235106446/ (last accessed November 10, 2021).

This article was also published in Law360.

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