What If You Break a $300,000 Figurine While on Assignment?

by David Walker

 A 2,600 year-old figurine before and after it was smashed at a photo shoot last year for Art + Auction magazine.

Photo shoot disasters hardly get any worse than an incident last year involving a privately owned terra cotta figurine, which was appraised at $300,000 after it was smashed to bits at a photo shoot in the owner's home. With a lawsuit and much finger pointing now under way, a timely question is: What happens when you're on assignment and something really valuable gets destroyed? How do you protect yourself against such disasters?

According to a lawsuit filed April 24 in New York state supreme court,  the 2,600 year-old archaeological specimen was destroyed when "photographers" hired by Art + Auction magazine to photograph the statue moved it. The "photographers" aren't name in the lawsuit, which is against Art + Auction's owner, Louise Blouin Media. But the New York papers have identified the photographer as fashion shooter Eric Guillemain.

Last May 12, he was with an assistant at the residence of Corice Arman--widow of French artist Arman--to photograph the ancient, rare specimen, called a Nok figure. While Corice Arman was out of the room, "the Nok figure fell onto the floor and was smashed into a myriad of pieces, cannot be restored and is a total loss," the lawsuit alleges. Arman alleges that the publisher "through the Photographers, acted negligently and without the due care necessary with respect to the Nok Figure, particularly in light of its rarity, value and fragility." She is seeking at least $300,000 in damages, plus attorneys' fees.

According to Bloomberg Businessweek, Arman had tried to negotiate with Blouin's insurance company for reimbursement for her loss, but sued after she was unable to get a settlement offer she considered reasonable. Ben Hartley, the president of Louise Blouin, reportedly told the New York Post that Blouin's position is that  it is not liable for the loss.

In an interview with the New York Post, Guillemain said he never touched the Nok figurine. Two employees of Art + Auction moved it, and Guillemain was on the other side of the room adjusting the his cameras when he heard it hit the floor and break, he told the Post. "I didn't see what happened but I am not the one responsible here."

Obviously, it's a mess for the lawyers and insurance companies to sort out.

But it's also a there-but-for-the-grace-of-god incident that ought to make any assignment photographer wonder: What if?

"It's kind of a touchy subject. It has happened to me once and it's quite a gray area," said one photographer we reached while he was on assignment in someone's house "trying not to break anything," he noted. He asked to remain anonymous. "I just don't want my name to come up in Google searches [about] this."

He went on to say that he has "very comprehensive business insurance" to cover such accidents--"but not without a deductible, of course." He adds, "Typically photographers are exposed to possible nightmare situations when working for magazines" because unlike advertising clients, magazines don't usually take out insurance policies to cover loss, damage, or injury to the owners of a property where a shoot takes place. In short, the liability is the photographers'.

And as it turns out, standard liability insurance typically carried by photographers would NOT cover the accidental dropping of, say, a $300,000 Nok figurine on the set. That's because liability insurance policies typically exclude damage claims "for property of others in the care, custody or control of the insured," says Scott Taylor of Taylor & Taylor Associates, a New York brokerage that provides insurance packages for photographers. Liability insurance also usually excludes claims for damage to property "deemed to be props, sets, wardrobe and/or camera and lighting equipment," Taylor says.

The Nok figurine, or any other prop or object being photographed as part of the shoot, would almost certainly fall under one of those exclusions. Architectural photographer Peter Aaron says he found out about those exclusions after an assignment some years ago where an assistant mishandled an architect's model of a skyscraper. "It pancaked," Aaron says. The architect demanded $5,000 in compensation. Aaron turned to his insurance company. "They said that's not something we cover," Aaron says. He had to pay out of pocket (though he negotiated a lower settlement).

"Most people find out about it [the exclusions] when they have a claim," Taylor says. "The care, custody, and control provision is one of the most litigated exclusions in the liability policies."

But photographers can insure themselves against damage to props and other third-party property under their "care, custody or control" by purchasing third-party property insurance, in addition to their liability insurance, Taylor explains. In addition, they can purchase insurance coverage for props, sets, and wardrobes, which covers them against loss or damage to objects such as art, antiques, jewelry, silverware, furs, and other valuables they work with on the set.

"The safest thing," Taylor says, "is to have [the owners or their agents] move valuable objects. That way, if it breaks, it's not your problem."

And what good is liability insurance, given the long list of exclusions (see below)? Taylor explains that liability insurance covers bodily injury if a model or a member of the public trips over one of your cables or other gear. It also covers damage to property outside your set from, say, a fire caused by your negligence.

For full details, consult your insurance agent, and ask your attorney to review the fine print of your insurance policies to help you figure out what's covered, and what isn't.

Scott Taylor on what claims insurance will--and won't-- cover

The standard liability policy will cover "bodily injury" to third-party members of the public (not "employees" of the photographer) and/or "property damage" to real and/or personal property that is not being used as part of the photographic set, props, sets and wardrobe, rented camera and lighting equipment and/or a location subject to a location agreement. The standard liability policy will typically exclude the following types of claims:

1. benefits payable under a state mandated worker's compensation and/or
disability statute;
2. real and personal property damage claims for property of others in the
care, custody or control of the insured;
3. claims arising from the maintenance, use or operation of an automobile,
aircraft, or watercraft;
4. claims arising from intellectual property right violations,
5. claims arising from sexual harassment, wrongful termination or
6. claims brought outside of the United States and Canada for injuries that
occur outside the United States and Canada;
7. pollution liability claims;
8. contractual obligation claims that are broader than the insuring
9. property deemed to be props, sets, wardrobe and/or camera and lighting
10. property damage to automobile, watercraft, aircraft, railroads when being
used in the actual photograph or rented to the photographer. 

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