This article was originally published in the Policyholder Advisor, Volume 24, Issue 5 (September/October 2015)

Concussions have become a substantial concern in multiple industries: medi­cal, athletic, educational and inevitably legal. As our knowledge and understanding of the hazards and damage caused by concus­sions grows, sports leagues, equipment man­ufacturers and educational institutions — as well as their medical professionals — must all consider themselves potential targets for law­suits and claims related to concussions. Just as claims come as a result of injuries, insurance disputes can be expected to follow claims.

The litigation of concussion insurance claims is in its infancy, but already certain is­sues are coming to the forefront, including the trigger of coverage, the number of occurrences, allocation of losses, and whether the injuries are expected or intended by the policyholders.

Trigger of Coverage: When Did Damage Occur?

The first logical issue to arise is which pol­icies are triggered by any given claim. Gener­al liability policies usually require either that bodily injury take place during the policy period, or that an accident or other incident take place during the policy period. For the accident-type policies, the trigger analysis would seem simple, except that a claimant might have received numerous blows to the head causing one or more concussions over the course of several years. When injuries and claims develop years later, a factual re­cord of those injuries and concussions will provide a road map, and sometimes grounds for dispute, to determine which policies po­tentially respond.

For those policies that require that bodily injury take place during the policy period, we can expect even more uncertainty. It took years for a legal consensus to develop as to the medical facts to determine when bodily injury occurs for asbestos claims, for example. With concussions, there is the initial head injury and concussion, which then allegedly leads to addi­tional injuries and conditions sometimes years later. Policyholders, insurance companies and courts will need to determine whether the inju­ries are continuous during all times in-between or whether they follow some other pattern.

Then, once the policy or set of policy years that respond is determined, the issue of oc­currences comes into play to determine how many limits are available and how the dam­age gets apportioned between them. The oc­currence analysis is again very dependent upon policy language, and will focus on the particular grouping or batching language contained in each policy. Occurrence defini­tions that simply reference "substantially the same general conditions" are least likely to end up grouping multiple concussion claims into a single occurrence. At the other end of the spectrum are policies that specifically state that injuries arising out of a single type of product or activity shall be collected into a single occurrence.

Allocation: Who Pays What?

Following up on the number of occur­rences will be allocation: how will claims be allocated among triggered policies and their respective limits. As an initial presumption, we should expect that courts will follow ex­isting allocation law for long-term claims such as asbestos or environmental damage. States that have committed to all sums, pro rata by time, or the Carter-Wallace formula of pro rata by both time and limits, will likely maintain such precedents. Still, policyhold­ers and insurance companies both can be expected to test that assumption until it is determined. In addition, several states still have not had a determinative decision in their highest court to settle this issue even for asbestos and environmental claims.

Expected or Intended: What Did the Policyholder Know, and When?

Finally, insurance companies can be expect­ed to assert several exclusions to negate cover­age. One likely candidate is the "expected or intended" exclusion. Many of the claims allege intentional activity and fraudulent conceal­ment. Insurance companies can be expected to hold the position that the injuries alleged to have resulted from such claims were expected and/or intended by their policyholders. Once again, reference to asbestos and environmen­tal claims is instructive, and gives reason for hope to policyholders. The insurance indus­try argued the expected or intended exclusion applied to bar those claims, which often have been based upon similar allegations, without long-term success. While nothing is certain, policyholders should prevail regarding the applicability of that exclusion.

This short analysis necessarily covered these issues in summary fashion, and omitted several other potential issues. Policyholders who face or expect to face concussion-based claims should undertake a more careful analy­sis of their specific policies and the particular nature of the claims they face to determine the likelihood of receiving coverage.

Mark Garbowski is a senior shareholder in Anderson Kill's New York office. Mr. Garbowski's practice concentrates on insurance recovery, exclusively on behalf of policyholders, with particular emphasis on professional liability insurance, directors and officers insurance, fidelity and crime-loss policies, Internet and high-tech liability insurance issues.  
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About Anderson Kill

Anderson Kill practices law in the areas of Insurance Recovery, Commercial Litigation, Environmental Law, Estate, Trusts and Tax Services, Corporate and Securities, Antitrust, Banking and Lending, Bankruptcy and Restructuring, Real Estate and Construction, Foreign Investment Recovery, Public Law, Government Affairs, Employment and Labor Law, Captive Insurance, Intellectual Property, Corporate Tax, Hospitality, and Health Reform. Recognized nationwide by Chambers USA for Client Service and Commercial Awareness, and best-known for its work in insurance recovery, the firm represents policyholders only in insurance coverage disputes - with no ties to insurance companies and has no conflicts of interest. Clients include Fortune 1000 companies, small and medium-sized businesses, governmental entities, and nonprofits as well as personal estates. Based in New York City, the firm also has offices in Ventura, CA, Philadelphia, PA, Stamford, CT, Washington, DC, Newark, NJ and Burlington, VT.

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