Editor's Note: National UnderwriterP&C's gripping September cover feature by Chad Hemenway tacklesthe red-hot issue of concussion-related brain injuries. The NFLagreed to a $765 million settlement deal with thousands of formerplayers and their families who sued the league–accusing it ofhiding the dangers of brain injury–exactly one week after thisfeature 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. Theblinds are drawn.

I know I didn't get migraines before high school—before Isuffered what I now know to be multiple concussions while playingfootball. 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, andduring our traditional Thanksgiving Day game in 1993 I was. At somepoint early in the game I was thrown a pass over the middle and Ihad to go up for it. A linebacker laid me out.

Days before that game, I hit my head on the windshield of my carduring 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 noticedI could barely stand. In the locker room, I'm told I had the coldsweats and was shivering. I only remember pieces of the ambulanceride—and almost nothing of my time in the emergency room.

Today, laws in more than 40 states have taken those types ofdecisions out of the hands of players or coaches, implementingreturn-to-play guidelines as scientists have discovered startlingnew evidence of long-lasting neurological damage from head trauma.Leagues of all levels have seen the launch of educationalcampaigns, such as the “Heads Up” program by the Centers forDisease Control or insurance industry-driven education like WellsFargo's Play it Safe Concussion Care Program or AIG's aHead of theGame movement.

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

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

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

THE DUTY TO DEFEND

Today, athletes from the National FootballLeague, the National Collegiate Athletic Association, high schoolsand youth-level organizations are suing those they feel wereentrusted with their well-being.

Insurers are in the thick of it. At the highest levels, wherehundreds of millions—if not billions—of dollars are at stake,dozens of insurers have filed to dismiss multi-district federallitigation consolidated in Pennsylvania involving nearly 5,000 (andcounting) NFL players of several generations in addition to theirfamilies against the league. Insurers, meanwhile, have responded byentering motions stating there is no duty to defend or indemnifythe NFL.

These lawsuits include allegations of fraudand wrongful death. Some former professional athletes have diedprematurely or committed suicide—some even shooting themselves inthe chest, in order to preserve their brain for study. In early2011 former Chicago Bears defensive back Dave Duerson committedsuicide in this way, and left a note instructing his family to havehis brain examined. Doctors found evidence of chronic traumaticencephalopathy, a degenerative and incurable disease. Thecondition, which can only be diagnosed after death, was alsodiscovered in the brain of All-Pro linebacker Junior Seau, whokilled himself in the same manner in May 2012.

The players allege the league knew or should have known what todo to protect them, and suggest that in some cases it did notreveal or even subverted medical studies on concussions. Untilaround 2010, the NFL claimed research on the subject wasinsufficient, and denied a link between concussions and cognitivedecline. According to the stories outlined in the lawsuits, manyathletes dealt with anxiety, depression, migraines, paranoia,memory loss, personality changes and impaired perception.

The issue is extremely complicated, takinginto account players' unions and workers' compensation issues aswell as a handful of conceivable grounds for the NFL to achieve adismissal—including assumption of risk, or that the players knewthe injuries they could sustain playing, in this case, football.(Visit the blog NFLConcussionLitigation.com, run by attorney PaulD. Anderson, for the most up-to-date information and analysis byAnderson and guest writers.)

For now, the sides have been ordered into mediation.

But what this case and other high-profile concussion-relatedcases have done is bring this newly defined severe risk to theforefront—not just among insurers, but among attorneys, sportsleagues, volunteers, medical professionals and parents.

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

With awareness, proof and precedent comes moreliability—opportunities to hold additional individuals, entities orcorporations responsible—similar to cases involving tobacco andasbestos (two words, mentioned regularly during interviews, thatcan make insurers shudder).

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

Robert M. Horkovich, managing partner atAnderson Kill & Olick, says the implications of the largerconcussion cases could be dramatic.

“There's no reason to think you won't see more action againstthe NCAA, helmet manufacturers and other organized, lower-levelleagues and no reason why liability lawsuits don't spread quicklyto sports like boxing, soccer, lacrosse and hockey,” he adds.

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

DELAY NOW, PAY LATER?

Horkovich says he's interested to see if the insurance industryis “successful in evading its obligations” and whether carrierswill 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 NFLlitigation. Court filings from the NFL say insurers providinggeneral liability coverage since or at some point from 1968 to 2012have failed and refused to discharge their obligations to defendthe NFL and NFL Properties in the injury lawsuits and “havebreached their duty to defend,” although the league has paidmillions of dollars in premiums and has already shelled out furthermillions for its defense.

Outside industry sources, mostly plaintiffs' attorneys, werepredictably astounded—but not surprised—by the insurers' tactic oftrying to get out of their duty to defend, which is much broaderthan their duty to indemnify. Horkovich said the denial of defensecauses the insured to fight wars on two fronts: against theplaintiff 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 thisreason—and when it's time to use the coverage, they try to get outof the contract,” he adds.

Carriers' pretrial motions to this point couldbe “typical legal posturing,” says William Wilt, president ofMadison, N.J.-based consultancy Assured Research. He says hesuspects insurers are not loathe to defend the NFL on technicalgrounds; rather, “they are keenly aware of the dollars at stake andthe complexity of the litigation.” With so much money on the line,insurers are trying to get all the facts on which policies aretriggered during the decades in which the plaintiffs playedfootball.

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 tonot 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 wantedanything to get in the way of my participation in the nextgame.

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

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

The game after Thanksgiving was the state championship game. Iwas not missing it. It was my senior year, and I was the startingmiddle linebacker and tight end. I told who I needed to that I wasfine, whether I actually was or not. But I don't even remember whoit 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, atleast not in the way I assume others do. I certainly can't recite aplay-by-play as my buddies are able, but I nod my head and say Ido. I have more like a scattered slideshow in my brain—maybe veryshort clips of action if I'm lucky.

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

For now, as the outcome and repercussions of high-profileconcussion lawsuits remain to be seen, sources say most insurershave not responded with knee-jerk reactions. Coverage remainsreadily available for high schools and organized sports leagues,and for the most part new language looking to limitconcussion-related exposure hasn't been squeezed into policies.

Interestingly, however, most insurers willrequire leagues to purchase an excess accident policy on top oftheir general liability coverage, which covers bodily injury. Theaccident policy provides additional medical costs to injuredplayers beyond that provided by the GL policy.

“If medical costs are taken care of, you're less likely to getsued,” says Lori Windolf Crispo, area president for broker RPSBollinger in Short Hills, N.J.

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

Still, “there hasn't been an impact in the availability ofcoverage,” Crispo observes. She says while the floodgates haven'topened in terms of concussion-related litigation, there have beensome “high-dollar” claims.

Martin Hacala, senior vice president and claims departmentmanager at Genesis Management and Insurance Services Corp. (aninsurer of both public and private schools), says most concussionclaims appear to involve “egregious circumstances,” but there hasbeen “a lot more talk and awareness.”

Concussion litigation, however, “hasdefinitely gotten their attention; they're watching,” he continues.Insurers, he adds, “are investing more in staff training andcertification as well as waivers.”

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

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

Underwriters also ask whether equipment andfields have been maintained, or if applicable staff or volunteersare familiar with safety protocols for players.

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

DePuy says nationally affiliated leagues, such as Little Leagueor Pop Warner, are more likely to have much better procedures inplace than independent leagues.

“If we don't like what we hear, we're not going to write theaccount,” DePuy asserts.

THE ONGOING BATTLE

I'm a bit more anxious these days, and arguably easier toirritate. Sometimes I get frustrated because my words don't alwayscome 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 Ireminisce.

Recently I visited a high school friend'shouse and he showed me a DVD he just had made from old VHS gametape. I asked him to borrow it one day soon. What I didn't tell himwas that I wanted the film not to relive the day, but to rememberit.

I may have gone through life thinking my symptoms were justrelated to age. And maybe that's exactly what they are. Or maybeit's something else unrelated to head trauma. But because of thenew concussion research and high-profile cases, I'm wondering if itwas the multiple hits to the head I sustained. Are others doing thesame, and will they take action against those they allege to beresponsible? My career ended in high school. More gifted andtalented athletes suffered many, many more brain injuries than Inow suspect I incurred.

This issue, in insurance terms, has an awfully long tail—and forthe moment it remains largely in liability limbo. Although therehave been studies of the effects of concussions, no one reallyknows when it's completely safe to return to the game aftersuffering a “ding,” or how many is too many. Do you retire aprofessional athlete or prevent a kid from playing at somepoint?

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

“Think of all the millions playing football and other contactsports,” he adds. “This isn't just a private employmentdispute.”