Did Robert DeNiro pull off one of his greatest acting jobs with the insurer covering production delays for a film he was to shoot, only to be diagnosed with prostate cancer soon after? Or did he merely comply faithfully with the letter of his policy contract, as a court has ruled? Listen to the facts and decide.
Fireman's Fund sued DeNiro, charging that he hid the possibility of his suffering from a serious health problem, which eventually delayed production of his 2003 movie, “Hide and Seek.”
However, Los Angeles Superior Court Judge Rolf Treu granted summary judgment in favor of the Oscar winner and tossed the case. The insurer says it may appeal.
(To read the complete news story, click here.)
As reported by our own Dan Hays, DeNiro’s attorneys argued that their client was not diagnosed until AFTER the insurance company's standard physical.
Firemans Fund countered that DeNiro had a biopsy shortly before their own checkup that he did not disclose.
DeNiro's response was that the underwriter only asked whether he was undergoing treatment for a disorder or had a diagnosis, and in fact at that point neither was the case. DeNiro's team successfully argued that a biopsy is not a diagnosis nor a treatment of a disorder--and they're absolutely right. So why does this feel absolutely wrong?
Technically, by sticking strictly to the letter of the contract, DeNiro answered honestly.
But I would argue that the spirit of the contract is that the lead actor should disclose to the film's insurer any possible health problems that might disrupt production.
Someone having a prostate biopsy--no walk in the park--knew something might be seriously amiss. Perhaps he had a bad PSA reading on a recent blood test, or some other physical symptom manifested itself.
In any case, something out of the ordinary prompted his doctor to order a more invasive, conclusive test. Coming right on top of the insurance company's queries, shouldn't that possibility be revealed?
I realize insurers are the first to cite their strict policy language exclusions when denying coverage. Just ask those left up the creek after a combination of wind and flood damage destroyed their homes during Hurricane Katrina.
In the end, I guess DeNiro had the law on his side. Insurers should obviously modify their underwriting questionnaire to ask point blank whether a key player has undergone any diagnostic test in the past 90-days before writing a film's coverage.
By the way, DeNiro was treated, and eventually returned to the set and finished the film. Good for him, his financial backers, and his millions of fans.
Indeed, had he won an Oscar for that role, I would hope he would have thanked Fireman's Fund in his acceptance speech for keeping his production from going bust in his absence. But I wouldn't hold my breath on that.
What do you folks think?
Comments (3)
There was a time, many years ago, when I was taught that the principle of "uberrimae fides"--utmost good faith--was an indispensible foundation of the relationship between an insured and an insurer. I'm not sure I even remember how to spell it any more.
Either side can easily "screw" the other, so it is essential that both sides act with utmost good faith toward each other, or ultimately the enterprise of insurance will founder.
The insured will always know more about the risks he faces than the insurer, and the insurer always knows more about the terms of the insurance contract and the law by which it is likley to be interpreted.
On that basis, of course DeNiro had an obligation to act in utmost good faith and disclose to Fireman's Fund a fact that he knew perfectly well increased the risk of loss under the insurance.
Instead, he played a game of "gotcha," and the court let him win. So much for good faith.
He could have disclosed his heightened risk and Fireman's Fund may well have agreed to provide the insurance anyway, albeit for a higher premium.
Now all the other policyholders will have to pay to fund the cost of DeNiro's duplicity.
Posted by Mikk | March 25, 2008 12:35 PM
Posted on March 25, 2008 12:35
Your final comments cracked me up. An Oscar for "Hide & Seek?" No way.
How does this guy look himself in the mirror after pulling this kind of fast one?
You are right. We have become a "what-is-the-definition-of-is" society. Honesty has been replaced by definition.
Maybe DeNiro should devote the rest of his career to playing shifty lawyers? He's obviously convincing in the role. Didn't I read somewhere that they're considering doing a Perry Mason movie? Pack on a few pounds and DeNiro could look a bit like Raymond Burr.
But without the class.
DeNiro tends to play clones of past characters and hasn't changed anything in his style in a decade.
Some still see him as one of the best. I see 200-plus movies a year and see him as passe. DeNiro's acting skills have become as murky as "Hide & Seek's" plot.
As for this movie, DeNiro plays a single dad raising a daughter played by the brilliant child actress Dakota Fanning. A phantom playmate is at the center of an equally phantom plot.
By the way, his film tanked critically and at the box office.
Can that be insured?
SAM RESPONDS:
You are pretty funny yourself, sir! And I had not heard about any Perry Mason movie! I loved the show, as well as the later TV movies (and even the original books by Gardner), and had the pleasure of meeting Raymond Burr numerous times in his capacity of longtime spokesman for the Independent Insurance Agents and Brokers of America. (You remember? "Use an independent agent. The more than one company agent," Burr intoned, displaying a pair of handcuffs to show how captive agents are locked into one carrier.)
Posted by Gary Wolcott | March 25, 2008 12:59 PM
Posted on March 25, 2008 12:59
As an industry, we are oft times dismayed because courts will not enforce the strict language of the policy, and instead write opinions dealing with "spirit of the contract" and "expectations of the parties."
The carrier could have asked, in addition to asking about diagnosis or treatment, about test results or recent tests, but didn't.
If as an industry we're going to ask for strict construction, then as an industry we're going to have to live with the consequences.
Posted by Tim Sullivan | March 25, 2008 1:35 PM
Posted on March 25, 2008 13:35