(Article from Insurance Law Alert, October 2026)
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Holding
The New York Appellate Division held that each claim brought by or on behalf of a former NFL player alleging concussion-related injuries constituted “at least one separate occurrence,” implicating coverage under a primary policy but not a fifth-layer excess policy. The court also held that the products-completed operations hazard aggregate limit did not apply because NFL football was not a “product.” Accordingly, the excess insurer had no duty to indemnify the NFL for its concussion settlement. Discover Prop. & Cas. Co. v. NFL, 2026 NY Slip Op 05595, 2026 N.Y. App. Div. LEXIS 5815 (N.Y. App. Div. 1st Dep’t Oct. 1, 2026).
Background
This coverage dispute arose following the NFL’s settlement of multidistrict litigation concerning concussion-related personal injury claims brought by former professional football players. The settlement created an uncapped fund to compensate players with qualifying neurodegenerative diagnoses, with maximum individual awards of $1.5 million to $5 million.
TIG Insurance Company issued the NFL primary general liability policies from 1978 through 2002, along with umbrella and excess policies, and American Guarantee and Liability Insurance Company (“AGLIC”) issued an excess policy for 2001–2002. The AGLIC excess policy attaches above $51 million per occurrence and follows form to the underlying TIG primary policy. The TIG policies define “occurrence” as “an accident including continuous or repeated exposure to substantially the same general harmful conditions.” Certain TIG policies issued between 1984 and 1989 also contain “grouping” language stating that all bodily injury “arising out of continuous or repeated exposure to substantially the same general conditions shall be considered as arising out of one occurrence.”
The 2001–2002 TIG primary policy contains a products-completed operations hazard (“PCOH”) aggregate limit. It also includes a Participants Endorsement providing coverage for bodily injury to players that is not subject to the PCOH aggregate limit.
AGLIC, the excess carrier, moved for summary judgment, arguing that each player’s injury constituted a separate occurrence and that no occurrence reached $51 million. AGLIC also argued that the PCOH aggregate limit in the underlying TIG policy did not apply because NFL football was not a covered “product.” This issue was significant because application of the aggregate limit could permit exhaustion of the underlying policies even if the claims were deemed to constitute multiple occurrences, which could potentially trigger AGLIC’s excess coverage.
By contrast, TIG, the primary carrier, argued that all the players’ injuries constituted a single occurrence arising from the NFL’s concealment and misrepresentation of the risks of playing football.
The trial court concluded that the injuries arose from multiple occurrences and that NFL football constituted a “product,” but denied AGLIC’s motion, declining to resolve whether the PCOH aggregate limit applied.
Decision
The Appellate Division ruled that AGLIC was entitled to summary judgment, holding that each player’s claim constituted “at least one separate occurrence” and the PCOH aggregate limit did not apply. Accordingly, the court concluded that TIG’s underlying policies could not be exhausted, and AGLIC had no duty to indemnify the settlement.
In determining the number of occurrences, the court applied the “unfortunate event” test established by the New York Court of Appeals in Appalachian Ins. Co. v. Gen. Elec. Co., 8 N.Y.3d 162 (2007). The court explained that the analysis begins by looking to the policy’s definition of “occurrence” for the “suggestion of an intent to group claims.” Where the policy language does not resolve the question, the analysis turns to whether the “incidents giving rise to injury or loss” have a “close temporal and spatial relationship” and are “part of the same causal continuum, without intervening agents or factors.” Here, the court concluded that the operative incidents were the players’ head impacts, which occurred over decades, during approximately 10,000 games involving more than 20,000 players at approximately 90 stadiums. The court found that the impacts lacked the necessary temporal, spatial, and causal connection to constitute a single occurrence. It therefore rejected TIG’s argument that the NFL’s alleged concealment of the risks of head injuries in football constituted a single occurrence, emphasizing that “the cause should not be conflated with the incident” giving rise to injury.
The court also ruled that the PCOH aggregate limit under the 2001–2002 TIG primary policy did not apply. It held that claims for bodily injury to players were covered by the Participants Endorsement, which was not subject to the PCOH aggregate limit. The court further held that NFL football did not constitute a “product” under the policy’s definition, which requires tangible goods or products. Accordingly, the PCOH aggregate limit did not provide a basis for exhausting the underlying TIG policies and reaching AGLIC’s $51 million attachment point.
Separately, the court rejected TIG’s reliance on the grouping language in its 1984–1989 policies, which states that “all bodily injury . . . arising out of continuous or repeated exposure to substantially the same general conditions shall be considered as arising out of one occurrence.” The court reasoned that there was “nothing to suggest that the head impacts constitute exposure to the same general conditions,” as they involved different players, stadiums, times, and circumstances.
The court also addressed several other issues. It rejected TIG’s argument that the injuries were not accidental because head impacts are inherent in football, distinguishing the impacts from the resulting neurodegenerative diseases. The court also found that TIG had failed to establish that the players did not suffer any neurodegenerative injuries during the relevant policy periods.
Comments
With respect to the “number of occurrences,” this decision underscores the focus that New York’s “unfortunate event” test places on the “incidents giving rise to injury.” Here, the court found that arguments that there was a single common cause of all the injuries—i.e., the NFL’s alleged concealment of concussion risks—and the policies’ continuous-or-repeated-exposure provisions did not justify a single-occurrence ruling. Instead, the court focused on the fact that the alleged incidents of head impacts took place at many different times and places to conclude that there were multiple occurrences. The number-of-occurrences inquiry is fact-intensive and warrants careful attention to the specific circumstances presented by each case.