Risks associated with concussions and other head injuries have become a mainstay in the headlines, with the lawsuits asserted by former professional football players generating especially intense media attention, including in a Hollywood movie. However, the National Football League ("NFL"), which entered a concussion-related settlement that has been valued at approximately $1 billion, is far from the only organization affected by the emergence of claims alleging long-term injuries from repeated blows to the head. Sports organizations at all levels, from youth clubs to colleges to professional leagues, as well as coaches and other individuals, have faced lawsuits claiming that athletes suffered from such progressive injuries, including an alleged brain disease known as chronic traumatic encephalopathy ("CTE"). Given the potentially enormous stakes of CTE-related lawsuits and the wide swath of possible targets, being able to access liability insurance to cover the defense and potential settlement of any such claims could be critically important to many businesses (e.g., professional sports teams), non-profits (e.g., private and public colleges), and individuals (e.g., coaches, doctors, and education officials).
In some instances, insurers have refused to defend or indemnify their policyholders against such claims, leading to insurance coverage lawsuits. Coverage litigation relating to claims alleging long-term brain injury such as CTE is still in its early stages, and courts have not yet clarified the application of key insurance coverage concepts in this field. Established judicial approaches to other types of claims alleging latent injuries or damage (e.g., asbestos and environmental claims) suggest possible answers to some fundamental coverage questions, such as which years of insurance are implicated for multi-year injuries (the "trigger" issue) and how defense and indemnity costs should be spread among triggered policies (the "scope" issue). However, for other issues, such as how policy exclusions regarding "participants" in athletic events might apply in the CTE context, case law offers less direct guidance.
Section I of this article provides a brief introduction to CTE-related tort and insurance coverage litigation. Section II discusses key issues that may arise when entities and individuals seek coverage for the defense and possible settlement of CTE-related claims, especially under commercial general liability ("CGL") policies. Section III considers other types of insurance policies that might respond to CTE-related claims. Section IV provides practical suggestions for assessing and renewing coverage for potential CTE claims, and Section V discusses steps policyholders might take to protect their insurance rights when responding to CTE claims.
I. CTE AND RELATED LITIGATION
The field of CTE-related research is developing, and there is not a uniform consensus among researchers (or litigants) regarding the existence, the nature, or the causes of the disease. Nonetheless, a basic understanding of the theory behind the emergence of CTE claims is helpful for an analysis of potential insurance coverage issues. (1) Some researchers have described CTE as "a progressive degenerative disease of the brain found in people with a history of repetitive brain trauma (often athletes), including symptomatic concussions as well as asymptomatic subconcussive hits to the head." (2) The changes in...
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