Insurance Coverage for Lawsuits Arising Out of Head Injuries in Sports

Insurance Coverage for Lawsuits Arising Out of Head Injuries in Sports By Shaun H. Crosner, Michael S. Gehrt, and Kirk A. Pasich April 2011

Table of Contents Page I. INTRODUCTION...1 II. AN OVERVIEW OF THE DUTY TO DEFEND...2 III. COVERAGE UNDER COMMERCIAL GENERAL LIABILITY POLICIES...4 A. Coverage for Claims of Bodily Injury...4 B. Applicable Policy Years...5 C. Insurers Arguments Against Coverage...7 1. The Rules Governing Exclusions...7 2. The Athletic Participant Exclusion...8 3. The Employer s Liability Exclusion...9 4. The Workers Compensation Exclusion...10 5. The Exclusion for Expected or Intended Injury and Section 533...11 IV. ALTERNATIVE SOURCES OF COVERAGE...12 V. CONCLUSION...13 ENDNOTES...14 ABOUT DICKSTEIN SHAPIRO LLP...17 ABOUT THE INSURANCE COVERAGE PRACTICE...17 ABOUT THE AUTHORS...18 Page i

I. INTRODUCTION Contact sports such as football, hockey, and boxing can lead to serious head injuries for athletes. These injuries have long been a source of potential liability for professional sports leagues and teams, as well as colleges and universities with contact sports programs. In fact, a handful of lawsuits arising out of head injuries in sports have resulted in significant judgments and settlements, including: In 2000, a jury awarded Merril Hoge, a former Chicago Bears running back, more than $1.5 million for the alleged mistreatment of his concussion by team physicians. 1 The award was later overturned and the case eventually settled for an undisclosed amount; and In late 2009, La Salle University agreed to pay $7.5 million to one of its former football players who alleged that he suffered permanent neurological injuries after being cleared by university personnel and sustaining a hit during a game. 2 The former player alleged that the university and its officials failed to exercise the appropriate standard of care in the treatment and handling of his head injury. Although the university paid $7.5 million to settle the case, the former player initially sought more than $20 million in medical bills and lost earning capacity. 3 Moreover, in the last few years, head injuries in sports have received increased attention from national media outlets. A number of recent medical studies purport to link certain head injuries with long-term health problems caused by chronic traumatic encephalopathy (or CTE ), a progressive degenerative disease of the brain found in individuals with a history of repetitive concussions. According to these studies, the changes in the brain caused by CTE can potentially continue months, years, or even decades after an athlete s last concussion or retirement from active athletic participation. Lawsuits arising out of head injuries in sports can come in numerous forms and include a variety of allegations. These lawsuits can be brought by athletes seeking substantial damages for alleged physical and emotional injuries, or they may be brought by an athlete s spouse or family member in the form of a loss of consortium claim. Either way, the cost of defending these lawsuits can be considerable, and these suits can subject leagues, teams, and universities to potential exposure in the form of settlements and judgments. Because of the many variations in policy language, this white paper does not address all of the issues. It also does not replace, and should not be relied on instead of, legal advice based on the specific policy language involved and the insured s particular situation. However, it does provide a starting point and is intended to be an aid in considering what is sometimes a maze of factual and legal issues regarding insurance. This white paper may be considered advertising in some states. Page 1

However leagues, teams, and universities may be able to defray some or all of these expenses with frequently overlooked assets their liability insurance policies. Although insurers may advance a number of arguments aimed at avoiding their coverage obligations, the liability insurance policies issued to leagues, teams, and universities may provide them with a defense and possible indemnity against lawsuits arising out of head injuries in sports. In fact, in certain instances, a single lawsuit can trigger coverage in multiple policy periods, thereby potentially providing an insured with considerable resources. It is therefore critical that insureds evaluate all potential sources of coverage, for doing so may pay dividends for those leagues, teams, and universities named as defendants in lawsuits arising out of head injuries in sports. II. AN OVERVIEW OF THE DUTY TO DEFEND One of the most valuable provisions in a liability insurance policy is the provision obligating an insurance carrier to defend its insured, or pay its insured s defense costs, in a lawsuit or claim that is potentially covered. This is especially true with respect to lawsuits arising out of head injuries in sports, for such lawsuits can be costly to litigate. When the carrier receives notice of an action against its insured, it is obligated to respond in one of three ways: (1) by acknowledging coverage, with an unqualified assumption of its duty to defend; (2) by acknowledging notice, with an assumption of its duty to defend under a reservation of rights to deny coverage; or (3) by denying coverage, with a refusal to defend. 4 In many situations, an insured will have a strong argument that it is entitled to a defense from the carrier, even if the carrier ultimately is not obligated to pay for any judgment or settlement. This is clear from a number of New York decisions, among them Fitzpatrick v. American Honda Motor Co., in which the court stated that, the duty to defend is broader than the duty to indemnify. 5 The court in Town of Massena v. Healthcare Underwriters Mutual Insurance Co. clarified further, holding that, [i]f the allegations of the complaint are even potentially within the language of the insurance policy, there is a duty to defend. 6 A leading decision in California regarding the duty to defend is the California Supreme Court s decision in Gray v. Zurich Insurance Co., in which the court held that an insurance carrier must defend a suit which potentially seeks damages within the coverage of the policy. 7 As the California Supreme Court has subsequently explained, the duty arises when the carrier is informed of [an] accident and learns of even the potential for liability under its policy. 8 This duty is triggered by allegations in a complaint or by facts extrinsic to the complaint that reveal a possibility that the claim may be covered by the policy. 9 Thus, an insurer has a duty to defend the entire third party action if any claim encompassed within it potentially may be covered. 10 Also, notably, the duty to defend exists if the complaint might be amended to give rise to a liability that would be covered under the policy: Page 2

[The carrier] cannot construct a formal fortress of the third party s pleadings and retreat behind its walls. The pleadings are malleable, changeable and amendable.... [C]ourts do not examine only the pleaded word but the potential liability created by the suit. 11 Indeed, the Ninth Circuit Court of Appeals has stated: The duty to defend does not usually turn on whether facts supporting a covered claim predominate or generate the claim. Instead, California courts have repeatedly found that remote facts buried within causes of action that may potentially give rise to coverage are sufficient to invoke the defense duty. Thus, California law does not require that the insured s conduct proximately cause the third party claim in order to trigger the defense duty. 12 This sentiment was echoed by the court in Ruder & Finn Inc. v. Seaboard Surety Co., 13 in which the court rejected a carrier s argument that two solitary, unsubstantiated words [buried within] a completely unrelated... cause of action which was, itself, undisputedly not covered... could not possibly evoke a duty to defend the insured. 14 The Ruder & Finn court added that the duty to defend includes the defense of those actions in which alternative grounds are asserted, even if some are without the protection purchased. Further, a policy protects against poorly or incompletely pleaded cases as well as those artfully drafted. 15 An insurance carrier cannot sit back and conduct an investigation to determine whether there might be coverage, while it leaves its insured to fend for itself. As the California Supreme Court has held: The defense duty is a continuing one, arising on tender of defense and lasting until the underlying lawsuit is concluded or until it has been shown that there is no potential for coverage.... Imposition of an immediate duty to defend is necessary to afford the insured what it is entitled to: the full protection of a defense on its behalf. 16 Any doubt as to whether the facts establish the existence of the defense duty must be resolved in the insured s favor. 17 A carrier also cannot ignore its duty to defend by arguing that the underlying plaintiff will not recover against the insured, or that the allegations are meritless. As one court explained: [A]n insurer cannot avoid the duty to defend merely by concluding, based on its own investigation, that the insured has done no wrong. The duty to defend does not evaporate simply because the insurer has decided that the insured will ultimately be exonerated (or because evidence supporting that conclusion has been introduced in a declaratory relief action over coverage). Indeed, the duty of defense... covers third party claims that are groundless, false or fraudulent.... In short, an insurer s determination that an insured is not liable on a third party Page 3

claim does not provide a basis for escaping the duty to defend. That duty extends to those insureds whom the insurer believes to be innocent of the conduct alleged in the third party complaint. 18 III. COVERAGE UNDER COMMERCIAL GENERAL LIABILITY POLICIES Prior to the 1940s, insurers typically only sold policies that provided insurance coverage for specific risks. In the late 1940s, the industry underwent a revolution that ushered in new comprehensive general liability policies. These policies were intended to insure all risks facing an insured that were not specifically excluded by the policy terms. 19 This new insurance product gave the business owner a uniform and convenient way to protect an entire business enterprise, all for one premium. Comprehensive or commercial general liability ( CGL ) policies have traditionally provided the broadest liability insurance coverage available. As one court has explained: The primary purpose of a comprehensive general liability policy is to provide broad comprehensive insurance. Obviously the very name of the policy suggests the expectation of maximum coverage. Consequently the comprehensive policy has been one of the most preferred by businesses and governmental entities over the years because that policy has provided the broadest coverage available. All risks not expressly excluded are covered, including those not contemplated by either party. 20 The standard form CGL policy has been the cornerstone of commercial liability protection since the early 1940s. The standard policy was developed and is periodically revised by insurance industry associations for use throughout the insurance industry. The CGL policy obligates an insurer to defend and indemnify its insured with respect to claims and liabilities covered by the policy. The broad coverage provided by most CGL policies, including the standard form CGL policy, could be a valuable asset to those insured leagues, teams, and universities named as defendants in lawsuits arising out of an athlete s head injuries. Such lawsuits should trigger the bodily injury coverage provided by most CGL policies, and in some cases multiple policies should respond. Carriers will no doubt advance a number of arguments in an attempt to avoid their coverage responsibilities, but insureds may nonetheless be entitled to a defense and possibly indemnification as well. A. Coverage for Claims of Bodily Injury When an insured faces a lawsuit arising out of a head injury to an athlete, the bodily injury coverage provided by the insured s CGL policy may prove extremely valuable. Virtually all CGL policies contain an insuring agreement that obligates the insurer to provide coverage for bodily injury. CGL policies will typically provide the following: Page 4

We will pay those sums that the insured becomes legally obligated to pay as damages because of bodily injury... to which this insurance applies..... This insurance applies to bodily injury... only if: (1) The bodily injury... is caused by an occurrence that takes place in the coverage territory [and] (2) The bodily injury... occurs during the policy period.... 21 The term bodily injury typically is defined as bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time. 22 This standard definition of bodily injury is broad enough to potentially encompass various athletic injuries including the physical damage to an athlete s brain that can result from severe head trauma, as well as any accompanying alleged emotional distress. It is also worth noting that, at least in some jurisdictions, allegations concerning loss of consortium have been read to trigger bodily injury coverage in a liability policy. 23 Accordingly, when spouses or family members of injured or deceased athletes sue for loss of consortium, such allegations might trigger coverage under a CGL policy s bodily injury provisions. B. Applicable Policy Years As noted above, recent scientific studies purport to link certain head injuries to long-term cognitive health problems such as CTE. Individuals affected by degenerative conditions like CTE may experience a gradual decline in cognitive function, and the structure and chemistry of their brains may become increasingly damaged over time. 24 For this reason, allegations concerning degenerative conditions such as CTE could potentially trigger bodily injury coverage in multiple policy years. CGL policies typically cover claims of bodily injury arising from occurrences during the policy period. 25 So long as bodily injury is alleged to have occurred during a particular policy period, coverage is triggered regardless of when a claim is made or a lawsuit is filed. In other words, when an underlying lawsuit contains allegations of a progressive or degenerative injury, a range of CGL policies may provide coverage. 26 For example, a former professional football player who develops a progressive condition like CTE might allege that his former team failed to properly diagnose concussions during his career, or he might allege that his former team failed to adequately warn him of the long-term consequences of head trauma. Allegations of this sort could trigger bodily injury coverage in a number of successive CGL insurance policies. Of course, policies issued during the athlete s playing career would likely be triggered by allegations of concussions suffered during his career. Furthermore, policies issued after the athlete s retirement may also be triggered, for the brain of Page 5

an individual suffering from CTE is said to be in a gradual state of decline. Each brain cell allegedly killed by this degenerative condition should arguably be treated as independent bodily injury, meaning that an athlete with CTE could potentially suffer continuous bodily injury in successive policy periods throughout his life. In this respect, courts treatment of other degenerative diseases including cancer is instructive. As one court stated: With respect to asbestos-induced cancers, the jury s determination that injury-in-fact commences with the time of first exposure and progresses continuously thereafter was sufficiently supported by the evidence regarding the etiology of such cancers. This evidence demonstrated the ability of asbestos to cause cancer, and permitted a finding that asbestos potentially plays a role in each and every mutation of cells. The jury could reasonably have concluded that such mutations, and thus injury-in-fact, had been established by [the insured] to occur at every moment in the disease process, thereby triggering all policies in effect at any point during that process. Specifically, upon exposure to a carcinogenic substance, a cell mutates, after which the cell containing that mutation replicates itself until millions of cells exist with the same mutation. One of those mutated cells may then undergo a second mutation, and so on until enough mutations have taken place to result in a cell that scientists call a cancer cell. Asbestos can contribute to the process in four ways: it can (1) cause the mutation directly, (2) increase the likelihood that another mutation will occur, (3) introduce other carcinogenic substances into the cells, and (4) cause the release of other substances capable of causing certain mutations that asbestos may not be able to effect on its own. These processes may involve millions of cells, each at various stages of the process. In short, the medical evidence regarding the carcinogenic mechanisms of asbestos sufficiently establishes an insidious disease process involving billions of cellular mutations that constitute injuries. The jury could reasonably have concluded that these mutations occurred in a continuous sequence from initial exposure to the manifestation of the clinical diseases known as lung cancer and mesothelioma. Based on this evidence, the jury found that, for asbestos-induced cancer claims, [the insurer s policies] are triggered from the date of first exposure to the date of death or claim, whichever is earlier. We will not disturb this finding. 27 Therefore, when faced with allegations of a degenerative or progressive condition, insureds should consider the possibility of coverage going back as far in time as the injured athlete s first head injury or concussion. And, because degenerative conditions may result in bodily injury in successive policy periods, CGL policies issued after the end of the athlete s career would also potentially provide coverage. 28 Page 6

C. Insurers Arguments Against Coverage CGL insurers faced with the prospect of defending a lawsuit arising out of a head injury in sports may attempt to rely on a number of common policy exclusions to deny coverage. Among other things, these insurers might attempt to invoke the athlete participation exclusion, the employer s liability exclusion, the workers compensation exclusion, or the exclusion for expected or intended injuries. However, as explained below, these exclusions should not operate to bar coverage in most instances, meaning that insureds may very well be entitled to a defense and possibly indemnity as well. 1. The Rules Governing Exclusions Courts have long held that exclusions from coverage must be conspicuous, plain, and clear to be effective against the insured. 29 A restriction on coverage is not sufficiently conspicuous unless it is positioned in a place and printed in a form which would attract a reader s attention. 30 [A]n exclusion in an insurance policy can negate coverage only where it is stated in clear and unmistakable language [and] is subject to no other reasonable interpretation. 31 In other words, even if an insurance carrier s interpretation of an exclusion is reasonable, it will not be adopted unless the carrier establishes that its interpretation is the only reasonable one. 32 Thus, policy exclusions and limitations are strictly construed against the insurer and liberally interpreted in favor of the insured. 33 Similarly, exceptions to exclusions are construed broadly in favor of the insured. As one court put it: An insurer cannot escape its basic duty to insure by means of an exclusionary clause that is unclear.... The burden rests upon the insurer to phrase exceptions and exclusions in clear and unmistakable language. 34 As the Ninth Circuit has explained, [t]he language of the insurance policy is broad, and the onus was on the drafter of the policy to convey any limitations. If [the insurer] desired to limit coverage, it could have expressly done so. Instead, it used broader language. Once again, [the carrier] failed to communicate an asserted limitation conspicuously, plainly and clearly. 35 Finally, it is important for insureds to remember that a CGL carrier s broad duty to defend obligates it to defend against all potentially covered lawsuits. 36 It is settled that this [duty] is excused only where the third party complaint can by no conceivable theory raise a single issue which could bring it within the policy coverage. 37 For this reason, an insurer cannot rely on an exclusion to deny a defense unless it can conclusively prove that the exclusion applies to bar coverage for each and every allegation of the underlying lawsuit. 38 In other words, so long as any allegation in a complaint is potentially covered under the policy, an insurer has a duty to defend the entire lawsuit. Page 7

2. The Athletic Participant Exclusion CGL policies issued to professional sports teams and leagues, as well as colleges and universities, frequently contain provisions that exclude coverage for certain injuries sustained by participants in sporting events. These so-called athletic participant exclusions frequently state: This insurance does not apply to bodily injury to any person while practicing for or participating in any contest or exhibition of an athletic or sports nature sponsored by the named insured. 39 CGL insurers may attempt to rely on athletic participant exclusions to deny coverage for lawsuits arising out of head injuries to athletes. However, these exclusions will not necessarily bar coverage for all lawsuits of this kind. For one, lawsuits arising out of head injuries often include allegations of post-injury negligence. In particular, an athlete could allege that he received improper medical treatment from school, team, or league officials following a concussion or other head injury. Allegations of this sort are temporally distinct from the injury itself, not to mention largely unrelated to the athlete s participation in the sport. Accordingly, courts have construed allegations of improper post-injury treatment as falling outside the ambit of athletic participant exclusions. 40 Moreover, it is important for an insured to pay close attention to the precise wording of the athletic participant exclusion in its CGL policy including the use (or non-use) of defined terms in the exclusion. The bodily injury coverage provided by most CGL policies is defined to include bodily injury, sickness or disease sustained by a person. 41 Thus, bodily injury (the defined term) includes sickness and disease. Notably, however, many athletic participant exclusions are written to apply only to the undefined term bodily injury not sickness or disease. The importance of this construction is that allegations concerning long-term, degenerative diseases such as CTE are arguably not included in the undefined term bodily injury and, therefore, are outside the scope of most athletic participant exclusions. Finally, even if an athletic participant exclusion bars coverage for physical injuries sustained in the course of a sporting event, the exclusion might not apply to subsequent derivative physical and emotional injuries. For instance, as discussed above, allegations of long-term conditions like CTE could trigger bodily injury coverage in CGL policies issued long after a player s career has ended. These new physical injuries should not be viewed as having occurred by the athlete while participating in a sport or athletic contest, even if they can arguably be traced back to injuries sustained in the course of an athletic contest. The same would likely be true of emotional distress injuries allegedly suffered by an athlete or his family members in the aftermath of a traumatic brain injury. For this reason, athletic participant exclusions should generally not apply to allegations of emotional distress and loss of consortium. Page 8

3. The Employer s Liability Exclusion Carriers may attempt to invoke the so-called employer s liability exclusion found in the standard form CGL policy to deny coverage for certain lawsuits arising out of head injuries in sports. The exclusion precludes coverage for bodily injury to: (1) An employee of the insured arising out of and in the course of: (a) (b) Employment by the insured; or Performing duties related to the conduct of the insured s business; or (2) The spouse, child, parent, brother or sister of that employee as a consequence of Paragraph (1) above. 42 Although the employer s liability exclusion could apply to certain allegations or lawsuits arising out of head injuries in sports, the exclusion should certainly not apply to all such lawsuits. For instance, the exclusion would not logically apply to claims brought by amateur athletes or their families, as amateur athletes are by definition not employees at all. Similarly, the exclusion should not apply to lawsuits brought against professional sports leagues, for professional athletes are generally thought of as being employees of their respective teams not the league in which the team is a member. However, even with respect to lawsuits brought against professional sports teams, the exclusion might not apply in all instances. Notably, the term employee (which is not fully defined in the standard form CGL policy) excludes temporary workers. 43 The standard form policy defines a temporary worker as a person who is furnished to [the insured] to substitute for a permanent employee on leave or to meet seasonal or short term workload conditions. 44 Thus, unless a professional athlete sustains an injury while under a long-term contract, there may be an argument that the athlete should be treated as a temporary worker being used to meet seasonal or short term workload conditions. In other words, certain professional athletes including those signed to short-term contracts or those trying out to make the team could be viewed as temporary workers whose injuries are exempt from the employer s liability exclusion in the standard form CGL policy. Furthermore, the employer s liability exclusion purports to apply only to bodily injury... arising out of and in the course of the employee s employment. 45 Under a fair reading of the exclusion, bodily injury suffered after a professional athlete s retirement would not occur in the course of his employment. Thus, the exclusion would arguably not apply to alleged bodily injury in the form of long-term degenerative neurological diseases like CTE. Nor would the Page 9

exclusion necessarily apply to post-retirement emotional distress suffered by a former professional athlete, assuming such emotional injuries would otherwise qualify as covered bodily injury. Similarly, with respect to loss of consortium claims brought by an injured athlete s spouse or family members, the employer s liability exclusion would apply only in those situations where the athlete s bodily injury would also be excluded. Thus, if the loss of consortium claim is related to alleged post-retirement bodily injury suffered by an ex-athlete, then the employer s liability exclusion should not apply. In sum, the employer s liability exclusion could potentially bar coverage to certain lawsuits arising out of head injuries in sports, but the exclusion should not apply in every instance. 4. The Workers Compensation Exclusion Most CGL policies exclude coverage for any obligation of the insured under workers compensation statutes, disability benefits or unemployment compensation law, or any similar law. 46 CGL insurers might argue that this exclusion precludes coverage for certain lawsuits brought by athletes who have suffered traumatic head injuries. These insurers might contend in some cases correctly that the injured athletes should be limited to disability benefits or workers compensation benefits. However, even if the workers compensation exclusion may bar coverage for workers compensation awards, disability benefits, and the like, it should not apply to lawsuits seeking damages in tort. For instance, in Penn-America Insurance Co. v. Disabled American Veterans, Inc., 47 an employer was sued by its employee for injuries sustained in a slip-and-fall on the employer s premises. When the employer sought a defense from its CGL insurer, the insurer denied coverage. The insurer invoked, among other defenses, the workers compensation exclusion in the insured employer s policy. 48 According to the insurer, because the injured employee was hurt in the course of her employment, the state s workers compensation statutes provided the exclusive remedy. The court soundly rejected this argument, holding that the exclusion did not excuse the insurer s coverage obligations: [Regardless of whether the injured employee] was injured in the course of employment and [the underlying] action was therefore precluded by the exclusive remedy provision of the workers compensation statute, Penn- America still had a duty to defend the action before the insureds received the favorable ruling. Indeed, it was Penn-America s duty to seek that favorable decision on its insureds behalf. We do not look to the outcome of an earlier action to determine if the insurer had a duty to defend.... The question is not whether the underlying action has merit, but whether the complaint alleges a claim that Page 10

is covered by the policy. If the facts as alleged in the complaint bring the occurrence even arguably within the policy s coverage, the insurer has a duty to defend the action, regardless of whether liability is ultimately established. 49 Thus, even if an injured athlete should be limited to workers compensation or disability benefits, his decision to sue in tort may trigger a CGL insurer s coverage obligations. This coverage could be especially valuable for insured teams, leagues, and universities. After all, it is not always clear how (or if) workers compensation statutes apply to athletes. 50 This lack of clarity has resulted in a number of injured athletes incorrectly suing in tort when they should instead be seeking workers compensation benefits. Still, even if unmerited, these lawsuits can be costly to defend against, and insureds should not overlook the broad coverage provided by their CGL policies. 5. The Exclusion for Expected or Intended Injury and Section 533 Insurance carriers often argue that an insured s intentional or willful conduct is not covered, and CGL insurers may make such an argument in the context of lawsuits arising out of head injuries in sports. For instance, insurers could argue that head injuries are a known or expected consequence of contact sports, or they might assert that the insured ignored scientific studies linking head trauma to degenerative brain disorders in athletes. Arguments of this sort would be premised in large part upon the expected or intended exclusion found in standard form CGL policies. The standard form CGL policy states that the insurance does not apply to bodily injury... expected or intended from the standpoint of the insured. 51 Some insurance carriers may also point to California Insurance Code Section 533 as a coverage defense. Section 533 provides: An insurer is not liable for a loss caused by the wilful act of the insured; but he is not exonerated by the negligence of the insured, or of the insured s agents or others. 52 A number of courts have interpreted the expected or intended exclusion and Section 533 in a variety of scenarios, and these decisions suggest that neither defense should apply to bar coverage for most lawsuits arising out of head injuries in sports. The expected or intended exclusion and Section 533 should bar coverage only where there is a finding that the insured subjectively intended to injure the athlete or cause him to suffer head trauma. [T]he policy term, expected or intended injury, cannot be equated with foreseeable injury. 53 Similarly, a willful act as used in Section 533 requires more than intentional wrongdoing, as the statute does not preclude coverage for acts that are merely negligent or reckless. 54 Page 11

This reasoning was applied in J.T. Baker, Inc. v. Aetna Casualty & Surety Co., 55 in which the court concluded that application of the expected or intended exclusion required consideration of the insured s subjective intent, not of some objective intent. As the court explained: Insurance is purchased and premiums are paid to indemnify the insured for damages caused by accidents, that is, for conduct not meant to cause harm but which goes awry. The insured may be negligent, indeed, in failing to take precautions or to foresee the possibility of harm, yet insurance coverage protects the insured from his own lack of due care. If the policy holder were to be told that the words of the occurrence definition excluding coverage for expected or intended damages actually mean that coverage is also lost for damage which a prudent person should have foreseen, there would be no point to purchasing a policy of liability insurance. 56 Other courts are in accord. As the Kentucky Supreme Court has explained: The expected or intended exception is inapplicable unless the insured specifically and subjectively intends the injury giving rise to the claim. We believe this to be the majority rule, and we agree that if injury was not actually and subjectively intended or expected by the insured, coverage is provided even though the action giving rise to the injury itself was intentional and the injury foreseeable. 57 Thus, even though concussions and other head injuries may be viewed as a foreseeable consequence of sports like football, hockey, and boxing, it does not follow that such injuries are expected, intended, or willful. IV. ALTERNATIVE SOURCES OF COVERAGE In addition to potentially seeking coverage under a CGL policy, a league, team, or university may be able to obtain insurance coverage for lawsuits arising out of head injuries pursuant to other types of liability insurance such as directors and officers ( D&O ), individual and organization ( I&O ), or errors and omissions ( E&O ) policies. The language and provisions contained in D&O, I&O, and E&O policies tend to vary more than many other types of insurance coverage. Thus, it is very important that policyholders have potentially relevant policies reviewed as soon as possible. That being said, most D&O, I&O, and E&O policies are claims-made policies, meaning that they typically cover only claims that are made against the policyholder during the policy period. Some policies, however, provide coverage for claims that are made against the policyholder shortly after the policy period. The policies also frequently include specific provisions concerning timely notice of claims, giving the policyholder a discrete window of time from when it knows about a claim to notify its insurance company. Accordingly, leagues, teams, and Page 12

universities should give timely notice as soon as possible to their D&O, I&O, and E&O carriers for claims or losses arising out of head injuries in sports. D&O, I&O, and E&O policies typically define a claim as a written demand for monetary or non-monetary relief; or a criminal proceeding commenced by the return of an indictment... against the insured for a wrongful act. When a league, team, or university is sued, it is clear that a claim exists under this type of policy. Furthermore, these types of policies generally provide coverage for a wide array of wrongful acts, including any breach of duty, neglect, error, misstatement, misleading statement, omission or act, if they are committed by the insured organization or by an individual in the course of carrying out corporate responsibilities or rendering professional services. In the case of an insured league, team, or university, there is a strong possibility that certain types of lawsuits, such as those described above, could be covered. While these types of policies tend to be highly particularized to the specific insured, losses that an insurer contends are not covered by one type of policy may be covered by another. Accordingly, leagues, teams, and universities named as defendants in lawsuits arising out of head injuries in sports should consider the entire panoply of liability insurance policies that could apply. V. CONCLUSION Lawsuits arising out of head injuries in sports are not only expensive to defend, but they can result in significant liability for leagues, teams, and universities named as defendants in such suits. However, some or all of these costs may be covered under CGL and other liability insurance policies. Accordingly, insured leagues, teams, and universities should carefully review the terms of their liability policies both when purchasing such policies and also when making a claim for coverage. Page 13

ENDNOTES 1 Darren Rovell, Money Game for NFL Team Docs Not Adding Up, May 17, 2010, available at http://www.cnbc.com/id/37132952/money_game_for_nfl_team_docs_not_adding_up. 2 Zack Needles, La Salle University Settles Football Injury Case for $7.5 Mil., The Legal Intelligencer, Dec. 1, 2009. 3 Id. 4 See Truck Ins. Exch. v. Superior Court, 51 Cal. App. 4th 985, 993-94 (1996); Campbell v. Superior Court, 44 Cal. App. 4th 1308, 1321 (1996); see also 22 Eric Mills Holmes, Holmes Appleman on Insurance 139.7 (2003). 5 78 N.Y.2d 61, 65 (1991); see also Cont l Cas. Co. v. Rapid-American Corp., 80 N.Y.2d 640, 648 (1993). 6 98 N.Y.2d 435, 443 (2002). 7 65 Cal. 2d 263, 275 (1966). 8 Samson v. Transamerica Ins. Co., 30 Cal. 3d 220, 239 (1981). 9 Horace Mann Ins. Co. v. Barbara B., 4 Cal. 4th 1076, 1081 (1993). 10 Id. at 1084. 11 Gray, 65 Cal. 2d at 276. 12 Pension Trust Fund for Operating Eng rs v. Fed. Ins. Co., 307 F.3d 944, 951 (9th Cir. 2002) (citations omitted). 13 52 N.Y.2d 663 (1981). 14 See CNA Cas. of Cal. v. Seaboard Sur. Co., 176 Cal. App. 3d 598, 612 (1986) (citing to Ruder & Finn Inc. v. Seaboard Surety Co., 52 N.Y.2d 663 (1981)). 15 52 N.Y.2d at 669-70. 16 Montrose Chem. Corp. v. Superior Court, 6 Cal. 4th 287, 295 (1993) (citation omitted). 17 Id. at 299-300. 18 A-H Plating, Inc. v. Am. Nat l Fire Ins. Co., 57 Cal. App. 4th 427, 442-43 (1997). 19 See J.M. Campbell, Specific Policies on the Way Out Comprehensive Takes Over, The Local Agent 16 (Mar. 1949) ( [T]oday we have come to the point when separate coverages must give way to... comprehensive policies for all industrial and mercantile risks. ). 20 James Graham Brown Found., Inc. v. St. Paul Fire & Marine Ins. Co., 814 S.W.2d 273, 278 (Ky. 1991). 21 See Commercial General Liability Coverage Form CG 00 01 12 07, I Coverages, Coverage A Bodily Injury and Property Damage Liability, 1 (ISO Properties, Inc. 2006). 22 See Commercial General Liability Coverage Form CG 00 01 12 07, V Definitions, 3 (ISO Properties, Inc. 2006). 23 See, e.g., Abellon v. Hartford Ins. Co., 167 Cal. App. 3d 21, 26-30 (1985) (allegations of loss of consortium could constitute bodily injury under liability insurance policy); but see McGovern v. Williams, 741 S.W.2d 373, 374 (Tex. 1987) ( The term bodily injury cannot be reasonably construed to incorporate loss of consortium. ). 24 Alzheimer s Society, The Progression of Dementia (Mar. 2010), available at http://alzheimers.org.uk/site/scripts/documents_info.php?documentid=133 (discussing progressive nature of dementia); see also Marie-France Wilson, Young Athletes at Risk: Preventing and Managing Consequences of Sports Concussions in Young Athletes and the Related Legal Issues, 21 Marq. Sports L. Rev. 241, 245 (2010) (describing CTE as a progressive degenerative disease of the brain, common in athletes and others who have suffered multiple concussions ). 25 See Commercial General Liability Coverage Form CG 00 01 12 07, I Coverages, Coverage A Bodily Injury and Property Damage Liability, 1 (ISO Properties, Inc. 2006). Page 14

26 See, e.g., Montrose Chem. Corp. of Cal. v. Admiral Ins. Co., 10 Cal. 4th 645, 686-87 (1995) ( [W]here successive CGL policies have been purchased, bodily injury... that is continuing... throughout more than one policy period is potentially covered by all policies in effect during those periods. ). 27 Stonewall Ins. Co. v. Asbestos Claims Mgmt. Corp., 73 F.3d 1178, 1198-99 (2nd Cir. 1995). 28 See Am. Home Prods. Corp. v. Liberty Mut. Ins. Co., 748 F.2d 760, 764 n.1 (2d Cir. 1984) (Carrier must defend each lawsuit... in which[ ] the complaint could be read to permit proof, or does not exclude the possibility, of the existence of any diagnosable, compensable injury, sickness or disease during any policy period. (brackets in original)); Stonewall, 73 F.3d at 1194 ( [U]nder New York law, coverage is based upon the occurrence of an injuryin-fact during the policy period. Thus, a real but undiscovered injury, proved in retrospect to have existed at the relevant time, would establish coverage, irrespective of the time the injury became [diagnosable]. (last alteration in original) (citations omitted)). 29 See, e.g., Steven v. Fid. & Cas. Co. of N.Y., 58 Cal. 2d 862, 878 (1962). 30 Ponder v. Blue Cross of S. Cal., 145 Cal. App. 3d 709, 719 (1983). 31 RJC Realty Holding Corp. v. Republic Franklin Ins. Co., 2 N.Y.3d 158, 165 (2004) (citation omitted). 32 MacKinnon v. Truck Ins. Exch., 31 Cal. 4th 635, 655 (2003); see also Mount Vernon Fire Ins. Co. v. Belize N.Y. Inc., 277 F.3d 232, 237 (2d Cir. 2002) ( With respect to exclusions from coverage, the same must be set forth clearly and unmistakably, not be subject to any other reasonable interpretation, and fit the particular case. ). 33 See Meraz v. Farmers Ins. Exch., 92 Cal. App. 4th 321, 324 (2001). 34 Id. at 324-25 (citation omitted). 35 Pension Trust Fund for Operating Eng rs, 307 F.3d at 953; see also Merchs. Ins. Co. of N.H., Inc. v. U.S. Fid. & Guar. Co., 143 F.3d 5, 10 (1st Cir. 1998) ( [I]f [the carrier] had really intended to limit coverage..., [it] was free to draft a policy with qualifying language that expressly implemented that intention. ); Mikelson v. United Servs. Auto. Ass n, 107 Haw. 192, 196 (2005) ( [T]he exclusion was unenforceable as against public policy inasmuch as [the carrier] could and should have clearly communicated... through precise and unambiguous language its desire[] to exclude coverage for any person who was not legally operating a vehicle under Hawaii law if [the carrier] intended this limitation. (ellipsis in original)). 36 Gray, 65 Cal. 2d at 275. 37 Atl. Mut. Ins. Co. v. J. Lamb, Inc., 100 Cal. App. 4th 1017, 1038 (2002) (citations omitted). 38 See, e.g., Montrose Chem. Corp. v. Superior Court, 6 Cal. 4th at 300 ( [T]he insured need only show that the underlying claim may fall within policy coverage; the insurer must prove it cannot. ); see also Wexler Knitting Mills v. Atl. Mut. Ins. Co., 382 Pa. Super. 405, 408 (1989). 39 See, e.g., Transamerica Ins. Co. v. Int l Broad. Corp., 94 F.3d 1204, 1206 (8th Cir. 1996) (citation omitted); see also Nat l Fire & Marine Ins. Co. v. Adoreable Promotions, Inc., 451 F. Supp. 2d 1301, 1308 (M.D. Fla. 2006); Crocker v. Roach, 766 So. 2d 672, 677 n.1 (La. Ct. App. 2000). 40 See, e.g., Colson v. La. State Racing Comm n, 726 So. 2d 432, 435 (La. Ct. App. 1999) ( Although [injured athlete s] personal injuries sustained in the accident which occurred during a schooling race are clearly excluded from coverage by the exclusion quoted above, [his] allegations concerning... failure to provide adequate medical care following the accident are not clearly excluded because they are independent of [his] participation in the race. ); Sam v. Delta Downs, Inc., 564 So. 2d 829, 832 (La. Ct. App. 1990) (Allegations of negligent on-site emergency medical treatment are independent of the [deceased athlete s] participation in horse racing, and are not excluded from coverage. ). 41 Commercial General Liability Coverage Form CG 00 01 12 07, V Definitions, 3 (ISO Properties, Inc. 2006). 42 See Commercial General Liability Coverage Form CG 00 01 12 07, I Coverages, Coverage A Bodily Injury and Property Damage Liability, 2.e (ISO Properties, Inc. 2006). 43 See Commercial General Liability Coverage Form CG 00 01 12 07, V Definitions, 5 (ISO Properties, Inc. 2006) (employee includes leased worker, but not temporary worker ). Page 15

44 See Commercial General Liability Coverage Form CG 00 01 12 07, V Definitions, 19 (ISO Properties, Inc. 2006). 45 See Commercial General Liability Coverage Form CG 00 01 12 07, I Coverages, Coverage A Bodily Injury and Property Damage Liability, 2.e (ISO Properties, Inc. 2006) (emphasis added). 46 See, e.g., Commercial General Liability Coverage Form CG 00 01 12 07, I Coverages, Coverage A Bodily Injury and Property Damage Liability, 2.d (ISO Properties, Inc. 2006). 47 224 Ga. App. 557 (1997). 48 Id. at 557. 49 Id. at 558-59 (citations omitted). 50 See Stephen Cormac Carlin & Christopher M. Fairman, Squeeze Play: Workers Compensation and the Professional Athlete, 12 U. Miami Ent. & Sports L. Rev. 95, 104 (1995) (explaining the various approaches that different jurisdictions take towards workers compensation laws and their application to professional and amateur athletes). 51 Commercial General Liability Coverage Form CG 00 01 12 07, I Coverages, Coverage A Bodily Injury and Property Damage Liability, 2.a (ISO Properties, Inc. 2006) 52 Cal. Ins. Code 533. 53 Ala. Farm Bureau Mut. Cas. Ins. Co. v. Dyer, 454 So. 2d 921, 925 (Ala. 1984); see also City of Carter Lake v. Aetna Cas. & Sur. Co., 604 F.2d 1052, 1058 (8th Cir. 1979) ( Under [the insurer s] construction of the policy language if the damage was foreseeable then the insured is liable.... This is not the law. The function of an insurance company is more than that of premium receiver. ). 54 See J.C. Penney Cas. Ins. Co. v. M.K., 52 Cal. 3d 1009, 1019-21 (1991) (While section 533 does not preclude coverage for acts that are negligent or reckless... [t]here is no such thing as negligent or even reckless sexual molestation. ); accord Shell Oil Co. v. Winterthur Swiss Ins. Co., 12 Cal. App. 4th 715, 742 (1993) ( [I]t is now clear that section 533 does not prohibit coverage for reckless conduct. ); Zurich Ins. Co. (U.S. Branch) v. Killer Music, Inc., 998 F.2d 674, 678 (9th Cir. 1993) ( [E]ven an act which is intentional or willful within the meaning of traditional tort principles will not exonerate the insurer from liability... unless it is done with a preconceived design to inflict injury. (citations omitted)). 55 135 F.R.D. 86 (D.N.J. 1989). 56 Id. at 92. 57 James Graham Brown Found., 814 S.W.2d at 278 (citation omitted); see also Cont l Ins. Co. v. Colangione, 107 A.D.2d 978, 979 (N.Y. App. Div. 1985) ( Ordinary negligence does not constitute an intention to cause damage; neither does a calculated risk amount to an expectation of damage. To deny coverage, then, the fact finder must find that the insured intended to cause damage. (citations omitted)); McGroarty v. Great Am. Ins. Co., 36 N.Y.2d 358, 363 (1975) ( Certainly one may intend to run a red light, but not intend that the catastrophic result of collision with another car occur. Calculated risks can result in accidents. ). Page 16

ABOUT DICKSTEIN SHAPIRO LLP Dickstein Shapiro LLP, founded in 1953, is internationally recognized for its work with clients, from start-ups to Fortune 500 corporations. Dickstein Shapiro provides strategic counsel and develops multidisciplinary legal solutions by leveraging its core strengths litigation, regulatory, transactions, and advocacy to successfully advance clients business interests. For more information on Dickstein Shapiro s unique capabilities, visit dicksteinshapiro.com. ABOUT THE INSURANCE COVERAGE PRACTICE Dickstein Shapiro is one of the United States leading law firms in representing policyholders around the world in disputes with their insurers. With more than 70 insurance coverage attorneys, the firm has the deep experience in a broad range of issues that is necessary to provide clients with superior representation in all insurance coverage matters. Dickstein Shapiro s insurance coverage attorneys provide advice and strategies that identify coverage opportunities, protect against unnecessary losses, and secure revenue from insurance policies through litigation and alternative means. Firm attorneys have successfully resolved some of the most significant coverage cases in the country, and the firm s Insurance Coverage Practice was recently named among the top five insurance practices in the United States by Law360; listed as a tier 1 national firm for insurance in U.S. News & World Report s first-ever Best Law Firms issue; and was the sole recipient of Chambers USA s prestigious 2008 Award for Excellence in the Insurance Coverage: Policyholder category. Page 17

ABOUT THE AUTHORS Shaun H. Crosner is an associate in the firm s Insurance Coverage Practice, and he is the coleader of the firm s Entertainment and Sports Insurance Coverage Initiative. Mr. Crosner represents policyholders, including Fortune 500 companies and clients in the sports and entertainment industries, in a variety of complex insurance coverage matters. His insurance recovery and litigation experience includes both first-party and third-party disputes involving property damage, rescission claims, insurance broker-agent liability, commercial general liability policies, employment practices liability policies, media liability coverage, and directors and officers coverage. Mr. Crosner has written and spoken on a variety of topics related to sports and entertainment insurance, and he is a primary author and co-editor of the New Appleman Sports and Entertainment Insurance Law & Practice Guide, a first of its kind book that was published by LexisNexis 2010. He may be reached at crosners@dicksteinshapiro.com. Michael S. Gehrt is an associate in Dickstein Shapiro s Insurance Coverage Practice. Mr. Gehrt focuses on the representation of policyholders in a variety of complex insurance coverage matters. He also represents commercial clients in connection with general business litigation and contract disputes. He may be reached at gehrtm@dicksteinshapiro.com. Kirk A. Pasich is the leader of Dickstein Shapiro s Insurance Coverage Practice and serves on the firm s Executive Committee. According to Chambers USA: America s Leading Lawyers for Business, All-star lawyer Mr. Pasich is an unmistakable feature of California s insurance landscape and one of the nation s top 12 policyholder lawyers, while Lawdragon has said, When it comes to representing policyholders, there s no bigger name on the West Coast. Chambers USA also says: Kirk Pasich is the leading name at this national practice, whose skill at always putting the right people on a matter ensures that it remains a go-to firm for complex insurance matters. Mr. Pasich conducts an active trial and appellate practice and has helped clients obtain more than $2 billion in insurance recoveries since January 1, 2007. Additionally, Mr. Pasich has handled substantial sports and entertainment litigation matters, including breach of contract, fiduciary duty and fraud claims, idea submission and copyright infringement claims, and professional malpractice claims. He also has served as an arbitrator and as an expert witness on insurance and ethical issues. Mr. Pasich has been named by The Los Angeles Business Journal as one of the Top 10 Litigators in Los Angeles, and by Best Lawyers as the 2011 Los Angeles Insurance Lawyer of the Year. He may be reached at pasichk@dicksteinshapiro.com. Page 18