Analyzing the Attempts of Insurers To Get Out of Concussion Game

(Editor’s Note: The following article was written by Jarett L. Warner, Counsel at Havkins, Rosenfeld, Ritzert & Varriale in New York City. It appears in the September issue of Concussion Litigation Reporter, which can be accessed here — )

An attempt by an insurance company to disclaim excess coverage to the National Football League (NFL) relating to a multitude of lawsuits and claims by former players concerning neurological and other debilitating injuries has spurred even further litigation.

There have been numerous reports and claims of concussions and other neurological injuries to former NFL players in recent months. One excess insurer, Alterra America Insurance Company (“Alterra”) initially sought a judicial declaration that it is not obligated to pay defense costs or judgments obtained against the NFL relating to these claims and lawsuits. On the heels of Alterra’s declaratory judgment action, the NFL has filed a lawsuit of its own for a declaration that Alterra as well as numerous other insurance companies are obligated to defend and indemnify the NFL. Travelers Insurance Company (“Travelers”) most recently filed its own lawsuit concerning its obligations.

On August 13, 2012, Alterra filed a declaratory judgment action in the Supreme Court of the State of New York, County of New York (Supreme Court, New York County. Index No. 652813/12) against the National Football League and NFL Properties, LLC (collectively “NFL”).

In its pleadings, Alterra states that it issued an excess policy to the NFL for the time period of August 1, 2011 until August 1, 2012. The policy issued by Alterra has a limit of $25 million per occurrence and provides coverage to the NFL in excess to Ace American Insurance Company’s $1 million per occurrence commercial general liability policy and in excess of Chartis Insurance Company’s $50 million limit per occurrence umbrella liability policy. Alterra’s pleadings do not indicate the aggregate limits of the respective policies.

In its Complaint, Alterra asserts that the claims of the NFL’s former players neurological injuries were caused by, among other things, the NFL’s negligence and fraud. Alterra claims that although the NFL has tendered some of the underlying actions, it timely disclaimed coverage. The underlying claims tendered by the NFL include alleged debilitating injuries from notable players including, Jamal Lewis, Fred Barnett, Jeff Hostetler, Art Monk, Eric Dickerson and Danny White to name a few.

In its first cause of action, Alterra seeks … (To read the rest of the story, click here — )

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