A federal judge has ordered an insurer to show cause why he should refrain from dismissing the insurer’s case against an NCAA football conference over the availability of insurance for concussion-related lawsuits. Back in May, Great American Assurance Company filed a complaint against Conference USA, seeking a declaration that it need not defend or indemnify the conference against a lawsuit brought by a former football player. In the underlying lawsuit, the former player alleged that he suffered neurodegenerative disorders and diseases, including chronic traumatic encephalopathy (“CTE”), Alzheimer’s disease, memory loss, mood swings, headaches, and anxiety stemming from repeated concussive brain impacts he sustained while playing for the University of Louisville. In the coverage action, Great American argues that a Limited Event Coverage endorsement added to Conference USA’s policies did not include football as a covered event and therefore the policies do not provide coverage for “bodily injury” arising from football.
The Federal Rules require a plaintiff to serve the defendant within 90 days after filing the complaint. If the plaintiff fails to do so, the judge must dismiss the action or order the plaintiff to serve the defendant within a specified amount of time. However, if the plaintiff can show good cause for a delay in service, the judge must extend the time for service for an appropriate period. Here, Judge Fish, the Senior United States District Judge for the Northern District of Texas, noticed that more than 90 days had passed since Great American first filed its complaint against Conference USA. As a result, he gave Great American until this Friday, August 25 to show cause, in writing, as to why he should retain its lawsuit against Conference USA on his docket. If Great American does not play by the rules, it may find itself on the sidelines—and out of the game.
You can read the entire order from the judge here.
Update: Yesterday, Great American filed a response to Judge Fish’s show-cause order stating that the parties are in the process of negotiating a stipulation that would resolve this dispute, and asking for an extension of 30 days. It looks like this case may be headed for overtime.
You can read Great American’s response here.