United States: Stadium Owners Watching Closely To See If Insurer Fumbles Reggie Bush Claim

Last Updated: November 18 2015
Article by Noel C. Paul

San Francisco 49ers running back Reggie Bush reportedly intends to sue the city of St. Louis after slipping on a concrete surface behind the St. Louis Rams' bench during a recent game, injuring his knee and ending his season. If a lawsuit is brought, St. Louis (which owns the Rams' stadium where the injury occurred) likely will look to its liability insurer to pay for its defense and for any damages awarded to Bush at trial. While the insurer may dispute St. Louis's claim, the city has a strong argument for coverage, and stadium owners across the world—who have a duty of care to the hundreds of multi-millionaire professional athletes who compete on their fields and pitches—will be watching closely to see if the insurance company fumbles the claim.

Earlier this year, Bush signed a one-year, $2.5 million contract with the 49ers. In his 10th year, the 30-year-old is at the tail-end of his career, but a strong season with the 49ers potentially could have put him in contention for another big free-agency contract. For example, in March of this year, then-31-year-old running back Frank Gore signed a three-year, $12 million contract with the Indianapolis Colts, which includes $6.5 million guaranteed and an average annual salary of $4 million, according to spotrack.com. While Gore has been a more productive carrier running the ball compared with Bush, an outstanding season in San Francisco could have put Bush in the conversation for a similar contract.

Bush is likely to seek as damages his projected lost income under a new contract, pain and suffering, and even punitive damages. As part of his case, Bush may argue St. Louis was on notice of the danger posed by the concrete surface—one week earlier, Cleveland Browns' quarterback Josh McCown slipped in the same area and had to leave the game. Bush thus may claim that St. Louis acted "willfully and intentionally" in allowing the concrete surface to stay in place for the 49ers' game.

St. Louis may respond that, by agreeing to take the field that Sunday, Bush "assumed the risk" inherent in playing football. In fact, St. Louis may turn Bush's argument against him and assert that Bush himself assumed the risk of slipping on the concrete if he was aware of McCown's injury. Under Missouri law, however, the risks assumed in sports activities are created by the nature of the sport. Sheppard by Wilson v. Midway R-1 Sch. Dist., 904 S.W.2d 257, 262 (Mo. Ct. App. 1995). The risk of a baserunner being hit by a baseball, for example, is a risk inherent to the game of baseball. Id. In this case, however, Bush may argue that the slippery concrete area is not "inherent to the game" of football, but an additional, unnecessary risk created "willfully and intentionally" by the city.

Such allegations could invite St. Louis's insurer to argue that this type of claim is not what it intended to cover when it issued the policy, and that it is excluded. The reason: almost all liability policies exclude coverage for injuries that are "expected or intended" by the insured. But this should be a losing argument. Under Missouri law (which likely applies to the policy), when determining whether the exclusion applies, courts must focus on the results rather than the causes. Am. Family Mut. Ins. Co. v. Pacchetti, 808 S.W.2d 369, 372 (Mo. 1991). "Expected or intended" as used in a liability policy thus means that the policyholder "deliberately and consciously" intended the injuries to occur. Id. Here, it is almost certain that the insurer will not find any evidence that the city actually intended Bush's injuries to occur.

The best news for St. Louis: Missouri law appears to permit insurance coverage for punitive damages. Punitive damages directly levied against a defendant are insurable in Missouri where the policy specifically provides for such coverage. See Colson v. Lloyd's of London, 435 S.W.2d 42 (Mo. Ct. App. 1968) (policy that provided coverage for all losses imposed by law covered punitive damages); New Madrid County Reorganized School District No. 1 v. Continental Cas. Co., 904 F.2d 1236 (8th Cir. 1990) (explicitly insuring "wrongful acts" covered punitive damages). Depending on the language of its policy, and the relevant law that applies, the city could be covered for a big award of punitive damages in Bush's favor.

Other sports stadium owners should prepare for potential claims by athletes and negotiate the most favorable policy language possible to obtain similar coverage. Like St. Louis in this case, they should consider whether they can seek defense and indemnification for claims from third parties, such as key vendors, who may have been involved in the incident. Owners also may be entitled to obtain insurance from a vendor's insurance policy, if the vendor is required to make the owner an additional insured on its own policies.

This article is presented for informational purposes only and is not intended to constitute legal advice.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.