In football as in life, the best defense is often a good offense. But, that adage does not always play well in litigation. In Riddell, Inc. v. Superior Court, No. B275482, 2017 WL 3614305 (Cal. Ct. App. Aug. 23, 2017), the California Court of Appeal blew the whistle on such a tactic, holding that an insurer could not use discovery tools in a coverage dispute with its policyholder in order to prejudice the policyholder’s defense in an underlying lawsuit.
Hunton & Williams Insurance Recovery partner, Michael Levine, was quoted in an August 29, 2017 article appearing in Business Insurance, regarding the rapid increase in lawsuits, and insurance issues, surrounding concussions in high school and college sports. Among other things, the article discusses a coverage lawsuit filed by Great American Assurance Company against Conference USA in federal court in Dallas, Texas. In the lawsuit, the insurer alleges that its policy did not afford coverage for football concussion injuries because the policy included a “limited event coverage endorsement,” which limited bodily injury coverage to a list of sports that apparently did not include football. As Mr. Levine noted, the use of policy endorsements to limit coverage for bodily injury claims to those arising in some sports, but not when they arise in football – where injuries are most likely to occur – is troubling. Football is where the coverage is needed most; yet the insurer apparently removed it using a policy endorsement that purports to afford coverage, not restrict it. As Mr. Levine notes, cases like this underscore the need for policyholders to carefully review all policy endorsements to ensure that the policy when read as a whole actually provides the coverages that are needed the most.
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.