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Alec Baldwin’s attorneys argued in a demurrer filed on Monday that the Worker’s Compensation exclusive remedy protects him from a lawsuit stemming from the “Rust” shooting last October.

The filing comes in response to a civil suit filed in Los Angeles Superior Court by Mamie Mitchell, the film’s script supervisor, against Baldwin and other producers and crew members on Nov. 17. Mitchell is represented by Gloria Allred. The “Rust” production had a liability policy with Chubb with a $6 million limit.

Mitchell was standing just a few feet away from Baldwin when he fired the gun and was the first to call 911. She alleges that she suffered pain and ringing in her ears as well as emotional injuries. Apparently her lawyers plead the case as an “assault” by the defendants, hoping to construe Baldwin’s behavior as an intentional tort which may be actionable despite the exclusive remedy.

However the defendants challenge her claim that it was an intentional tort, and that she has any legal right to any monetary recovery

They say “the law is clear that she does not. As Plaintiff obviously recognizes, having cited the New Mexico Supreme Court case Delgado v. Phelps Dodge as the basis for each of the three causes of action in her Complaint, Plaintiff cannot bring a workplace injury claim before this Court based on alleged negligence because Defendants are generally immune from such claims under New Mexico’s worker’s compensation law.

The New Mexico Supreme Court\’s decision in Delgado overruled the “actual intent test” and created an exception to the exclusivity provisions of the Workers Compensation Act which holds employers legally responsible for on-the-job injuries. The new standard is something less than intentional but more than negligence, purported to set the stage for a deluge of tort claims from injured employees who previously would have been precluded as a matter of law from recovering damages outside of the Act.

However, examination of Delgado and its New Mexico progeny, and comparison with case law in other jurisdictions with rules similar to those articulated by the New Mexico Supreme Court, indicate that while Delgado changed the law, legal scholars at the University of New Mexico say its application is so narrow as to have minimal impact. And that subsequent interpretations of the Delgado exception in New Mexico and other jurisdictions employing a similar standard have defined narrow boundaries and severely limited the scope of its coverage.

The demurrer goes on to argue that “despite Plaintiff’s attempt to label claims as intentional, nothing about Plaintiff’s allegations suggest that any of Defendants intentionally committed harmful conduct under New Mexico law. The underlying accident occurred when Cinematographer Halyna Hutchins (“Ms. Hutchins), Director Joel Souza (“Mr. Souza”), and Mr. Baldwin, among other film crew members, were rehearsing Mr. Baldwin drawing and pointing a prop six-shooter style revolver firearm (“Prop Gun”) for a cowboy-standoff scene.”

Mitchell’s suit alleges that Baldwin should have double-checked the gun and also accuses the producers of cutting corners, leading to unsafe conditions. In their demurrer, Baldwin’s attorneys argue that Mitchell cannot point to any intentional act that led to the shooting.

“Nothing about Plaintiff’s allegations suggest that any of Defendants, including Mr. Baldwin, intended the Prop Gun to be loaded with live ammunition,” they wrote. “Moreover, nothing about Plaintiff’s allegations suggests any of the Defendants knew the Prop Gun contained live ammunition.”

Serge Svetnoy, the gaffer who was also nearby when the shot was fired, filed a separate suit on Nov. 10. The producers have yet to respond to that complaint.

The demurrer will be heard on February 24 at 1:30 in Department 32.