A Battlefield Map for NFL v. Insurance Industry Re: Concussion Liabilities

When the superstar athlete—“Iron Mike” Webster—a nine-time NationalFootball League (NFL) Pro Bowler, four-time Super Bowl Champion, Hall of Fame center for the Pittsburgh Steelers—died at age fifty with severe brain dysfunction after becoming homeless and living in a truck, it was discovered he had a previously nameless disease, Chronic Traumatic Encephalopathy (CTE). The discovery of CTE opened the floodgates on interest in delayed manifestation brain diseases caused by repeated blows to the head. As part of that flood, many retired NFL players brought numerous class actions against the NFL for their alleged brain diseases caused by the repeated blows to the head they received while playing in the NFL. That litigation recently settled with the NFL’s liability totaling approximately $1 billion, and now the battle over who will pay that $1 billion liability is being fought between the NFL and more than thirty of the NFL’s insurers in a New York state court (the NFL v. Insurance Industry litigation).

This Article is the first scholarly effort to analyze the NFL v. Insurance Industry litigation. In doing so, it provides a battlefield map regarding the principal legal issues that will govern the outcome of the NFL v. Insurance Industry litigation: (1) choice of law, (2) “trigger,” (3) “allocation,” (4) “number of occurrences,” and (5) the “expected or intended” exclusion. The Article then compares and contrasts the law on these issues for New York, the state in which the NFL v. Insurance Industry is being litigated, and Pennsylvania, the state in which the underlying NFL players’ class actions were adjudicated, and predicts potential outcomes under each state’s laws.