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Invisible Killer

How Legal Fallout from Traumatic Brain Injuries May Forever Change the Way Sports Are Insured

Editor's Note: National Underwriter P&C's gripping September cover feature by Chad Hemenway tackles the red-hot issue of concussion-related brain injuries. The NFL agreed to a $765 million settlement deal with thousands of former players and their families who sued the league--accusing it of hiding the dangers of brain injury--exactly one week after this feature went to press.

I write this, as I do many stories, with a migraine.

The fluorescent lights in my office have been off all day. The blinds are drawn.

I know I didn’t get migraines before high school—before I suffered what I now know to be multiple concussions while playing football. At least a few of them were very close in occurrence.

Today I know I should have been taken out of a game or two, and during our traditional Thanksgiving Day game in 1993 I was. At some point early in the game I was thrown a pass over the middle and I had to go up for it. A linebacker laid me out.

Days before that game, I hit my head on the windshield of my car during an accident.

That Thanksgiving morning, I couldn’t shake off the dizziness. But I stayed in as long as I could until one of my coaches noticed I could barely stand. In the locker room, I’m told I had the cold sweats and was shivering. I only remember pieces of the ambulance ride—and almost nothing of my time in the emergency room.

Today, laws in more than 40 states have taken those types of decisions out of the hands of players or coaches, implementing return-to-play guidelines as scientists have discovered startling new evidence of long-lasting neurological damage from head trauma. Leagues of all levels have seen the launch of educational campaigns, such as the “Heads Up” program by the Centers for Disease Control or insurance industry-driven education like Wells Fargo’s Play it Safe Concussion Care Program or AIG’s aHead of the Game movement.

Now, athletes must see a doctor before stepping back on a field after a blow to the head. No longer are you allowed to “shake out the cobwebs,” and a player no longer just gets his “bell rung.”

Concussions are taken far more seriously these days, and the injury is no longer dismissed as if it were a rolled-over ankle or a hamstring muscle pull. They are now considered a “bona fide population health problem,” according to Dr. Daniel Goldberg, assistant professor in the Brody School of Medicine at East Carolina and an attorney.

The word “concussion” is in fact being replaced by a phrase many deem more accurate and descriptive: Traumatic Brain Injury.

THE DUTY TO DEFEND

Today, athletes from the National Football League, the National Collegiate Athletic Association, high schools and youth-level organizations are suing those they feel were entrusted with their well-being.

Insurers are in the thick of it. At the highest levels, where hundreds of millions—if not billions—of dollars are at stake, dozens of insurers have filed to dismiss multi-district federal litigation consolidated in Pennsylvania involving nearly 5,000 (and counting) NFL players of several generations in addition to their families against the league. Insurers, meanwhile, have responded by entering motions stating there is no duty to defend or indemnify the NFL.

These lawsuits include allegations of fraud and wrongful death. Some former professional athletes have died prematurely or committed suicide—some even shooting themselves in the chest, in order to preserve their brain for study. In early 2011 former Chicago Bears defensive back Dave Duerson committed suicide in this way, and left a note instructing his family to have his brain examined. Doctors found evidence of chronic traumatic encephalopathy, a degenerative and incurable disease. The condition, which can only be diagnosed after death, was also discovered in the brain of All-Pro linebacker Junior Seau, who killed himself in the same manner in May 2012.

The players allege the league knew or should have known what to do to protect them, and suggest that in some cases it did not reveal or even subverted medical studies on concussions. Until around 2010, the NFL claimed research on the subject was insufficient, and denied a link between concussions and cognitive decline. According to the stories outlined in the lawsuits, many athletes dealt with anxiety, depression, migraines, paranoia, memory loss, personality changes and impaired perception.

The issue is extremely complicated, taking into account players’ unions and workers’ compensation issues as well as a handful of conceivable grounds for the NFL to achieve a dismissal—including assumption of risk, or that the players knew the injuries they could sustain playing, in this case, football. (Visit the blog NFLConcussionLitigation.com, run by attorney Paul D. Anderson, for the most up-to-date information and analysis by Anderson and guest writers.)

For now, the sides have been ordered into mediation.

But what this case and other high-profile concussion-related cases have done is bring this newly defined severe risk to the forefront—not just among insurers, but among attorneys, sports leagues, volunteers, medical professionals and parents.

New plaintiffs continue to join in the litigation against the NFL, new research is regularly published, and new state laws and programs all raise awareness of how dangerous concussions can be if not treated appropriately.

With awareness, proof and precedent comes more liability—opportunities to hold additional individuals, entities or corporations responsible—similar to cases involving tobacco and asbestos (two words, mentioned regularly during interviews, that can make insurers shudder).

“This isn’t going to go away quickly,” says Joseph Hanna, a partner at Goldberg Segalla, who has penned several papers on the topic and toured the country speaking about it. “Let’s face it; these [NFL players] are getting [a monetary settlement]. If that is seen, I’d be shocked if you don’t see more lawsuits in college and elsewhere. This is in its infancy.”

Robert M. Horkovich, managing partner at Anderson Kill & Olick, says the implications of the larger concussion cases could be dramatic.

“There’s no reason to think you won’t see more action against the NCAA, helmet manufacturers and other organized, lower-level leagues and no reason why liability lawsuits don’t spread quickly to sports like boxing, soccer, lacrosse and hockey,” he adds.

Anderson and other sources say suits against organizers of all levels of organized sports are already occurring and one—a suit alleging “failure to accommodate” against a school district—points to just how expensive this could get for insurers.

DELAY NOW, PAY LATER?

Horkovich says he's interested to see if the insurance industry is “successful in evading its obligations” and whether carriers will succeed in “slicing, dicing and allocating this to death.”

Insurers such as AIG, Chubb, Fireman’s Fund, Travelers, Hartford, OneBeacon, Ace, Allstate, XL, Transatlantic, Crum & Forster and Alterra are involved, in various layers, in the NFL litigation. Court filings from the NFL say insurers providing general liability coverage since or at some point from 1968 to 2012 have failed and refused to discharge their obligations to defend the NFL and NFL Properties in the injury lawsuits and “have breached their duty to defend,” although the league has paid millions of dollars in premiums and has already shelled out further millions for its defense.

Outside industry sources, mostly plaintiffs’ attorneys, were predictably astounded—but not surprised—by the insurers’ tactic of trying to get out of their duty to defend, which is much broader than their duty to indemnify. Horkovich said the denial of defense causes the insured to fight wars on two fronts: against the plaintiff and against the insurer—a scenario he calls “perverse.” Anderson, an associate at The Klamann Law Firm, adds, “That’s why there’s bad-faith claims.

“You pay premiums under a general liability policy for this reason—and when it’s time to use the coverage, they try to get out of the contract,” he adds.

Carriers' pretrial motions to this point could be “typical legal posturing,” says William Wilt, president of Madison, N.J.-based consultancy Assured Research. He says he suspects insurers are not loathe to defend the NFL on technical grounds; rather, “they are keenly aware of the dollars at stake and the complexity of the litigation.” With so much money on the line, insurers are trying to get all the facts on which policies are triggered during the decades in which the plaintiffs played football.

Regardless, as a consultant, Wilt wonders if the insurers' strategy ultimately will do more harm than good.

“Large corporations are watching this as well as everyone else,” he says. “It may be short-sighted to routinely take the stance to not defend. There are other ways to transfer risk, after all.”

GOOD DEFENSE IS GREAT OFFENSE

I never wanted to come out of any game—and I never wanted anything to get in the way of my participation in the next game.

After my car accident, I don’t think I went to the doctor. If I did, I certainly don’t think the injury was taken as seriously as it would be today. You can’t see this injury, after all. There’s no cast or brace or special wrap.

Now there are baseline tests players take before and after an injury, but 20 years ago I just had to convince the team doctor I was ready to go. In all honesty, that was easy—and I would have done anything not to get a “no” for an answer. I certainly would have lied.

The game after Thanksgiving was the state championship game. I was not missing it. It was my senior year, and I was the starting middle linebacker and tight end. I told who I needed to that I was fine, whether I actually was or not. But I don’t even remember who it was I told or who I had to tell—or if anyone even asked.

Herein lies the irony: I don’t remember the game much anyway, at least not in the way I assume others do. I certainly can’t recite a play-by-play as my buddies are able, but I nod my head and say I do. I have more like a scattered slideshow in my brain—maybe very short clips of action if I’m lucky.

I was on the field when we kicked a field goal to win in overtime. I have no recollection of the play or the exuberance and celebration that followed.

For now, as the outcome and repercussions of high-profile concussion lawsuits remain to be seen, sources say most insurers have not responded with knee-jerk reactions. Coverage remains readily available for high schools and organized sports leagues, and for the most part new language looking to limit concussion-related exposure hasn’t been squeezed into policies.

Interestingly, however, most insurers will require leagues to purchase an excess accident policy on top of their general liability coverage, which covers bodily injury. The accident policy provides additional medical costs to injured players beyond that provided by the GL policy.

“If medical costs are taken care of, you’re less likely to get sued,” says Lori Windolf Crispo, area president for broker RPS Bollinger in Short Hills, N.J.

Bollinger says there is definitely a “trickle-down awareness” regarding concussions, and the protocols put in place to protect the health of athletes also protect the sports organization and insurer against liability woes.

Still, “there hasn’t been an impact in the availability of coverage,” Crispo observes. She says while the floodgates haven’t opened in terms of concussion-related litigation, there have been some “high-dollar” claims.

Martin Hacala, senior vice president and claims department manager at Genesis Management and Insurance Services Corp. (an insurer of both public and private schools), says most concussion claims appear to involve “egregious circumstances,” but there has been “a lot more talk and awareness.”

Concussion litigation, however, “has definitely gotten their attention; they’re watching,” he continues. Insurers, he adds, “are investing more in staff training and certification as well as waivers.”

Underwriters say their role is critical in protecting carriers that do still cover this newly high-profile risk.

“We look at rules and protocols,” says David DePuy, executive underwriter for Markel, which writes youth leagues. “Does a doctor need to sign off before a player can get back on the field? Is there baseline testing being done?”

Underwriters also ask whether equipment and fields have been maintained, or if applicable staff or volunteers are familiar with safety protocols for players.

“We try to underwrite against it; that’s our defense,” says DePuy, adding, “We don’t like to write a lot of tackle football, especially the older kids.”

DePuy says nationally affiliated leagues, such as Little League or Pop Warner, are more likely to have much better procedures in place than independent leagues.

“If we don’t like what we hear, we’re not going to write the account,” DePuy asserts.

THE ONGOING BATTLE

I’m a bit more anxious these days, and arguably easier to irritate. Sometimes I get frustrated because my words don’t always come out right. My memories of being on the field are scattered, and I don’t realize how much I don’t recall until my friends and I reminisce.

Recently I visited a high school friend’s house and he showed me a DVD he just had made from old VHS game tape. I asked him to borrow it one day soon. What I didn’t tell him was that I wanted the film not to relive the day, but to remember it.

I may have gone through life thinking my symptoms were just related to age. And maybe that’s exactly what they are. Or maybe it’s something else unrelated to head trauma. But because of the new concussion research and high-profile cases, I’m wondering if it was the multiple hits to the head I sustained. Are others doing the same, and will they take action against those they allege to be responsible? My career ended in high school. More gifted and talented athletes suffered many, many more brain injuries than I now suspect I incurred.

This issue, in insurance terms, has an awfully long tail—and for the moment it remains largely in liability limbo. Although there have been studies of the effects of concussions, no one really knows when it’s completely safe to return to the game after suffering a "ding," or how many is too many. Do you retire a professional athlete or prevent a kid from playing at some point?

“As far as insurers are concerned, I’m scared,” says Dr. Goldberg. “How does one assess liability when you can’t know the totality of the risk?

“Think of all the millions playing football and other contact sports,” he adds. “This isn’t just a private employment dispute.”

NAPSLO 2016

 

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