Hunton Insurance Recovery Blog

Recently, a New York appellate court issued a decision that largely was a win for the National Football League (NFL) and similarly situated policyholders. The decision addressed several questions related to liability policies, including when an injury is accidental, when repeated injuries constitute continuous exposure to harmful conditions, when coverage is triggered under the products-completed operations hazard, and when a settlement should be deemed reasonable.

Background

The NFL has been involved for years in federal multidistrict litigation involving former NFL players seeking compensation for alleged repeated concussions and other head injuries (Concussion Litigation). The players allege that the NFL failed to protect them and fraudulently concealed the risks of head injuries from football. In 2014, the NFL agreed to settle the claims of roughly 5,000 former players for an estimated $1 billion.

The NFL notified its insurers of the Concussion Litigation. One insurer, TIG (comprising TIG Insurance Company, North River Insurance Company, and US Fire Insurance Company), agreed to pay 24.63 percent of the NFL’s defense costs, subject to a reservation of rights and a disclaimer of coverage. When the NFL refused to provide TIG with privileged defense communications, TIG withheld consent to the NFL’s proposed settlements.

Unsurprisingly, the Concussion Litigation led to coverage disputes between the NFL and its insurers, as well as among the insurers themselves. Before the Concussion Litigation settled, two insurers filed declaratory judgment actions against the NFL, TIG, and several other insurers. The parties’ coverage disputes led to multiple summary judgment motions and, ultimately, this appeal.

On October 1, 2026, the New York Appellate Division, First Department, issued a comprehensive decision resolving many of the issues on appeal. The decision is long and detailed, so buckle your chinstraps.

The Decision

First Quarter: Playing the Long Game—Continuous Exposure and Policy Triggers

The court first applied New York’s “unfortunate event” test. According to the court, that test “start[s] by looking to the definition of ‘occurrence’ in the policy for the suggestion of an intent to group claims” and “then look[s] to whether there is a close temporal and spatial relationship between the incidents giving rise to injury or loss, and whether the incidents can be viewed as part of the same causal continuum, without intervening agents or factors” (citation modified). After determining under that test that “the underlying players’ injury claims constitute multiple occurrences,” the court then considered whether the injuries underlying those claims resulted from an “accident” and therefore qualified for coverage.

TIG argued that the players’ head injuries were not accidents because they were caused by hits that are intrinsic to football. TIG also argued that the injuries were not accidental because the NFL expected or intended that its players would suffer head impacts and injuries.

The court rejected TIG’s arguments and found that the players’ claims were occurrences. First, the court determined the occurrence to be the development of neurodegenerative disease, not the head injuries themselves. It was therefore irrelevant whether the impacts causing injury were themselves accidental. Second, TIG failed to show that the NFL expected or intended that its players would develop neurodegenerative disease.

The court also rejected TIG’s argument that the players did not sustain injuries during TIG’s policy periods, finding that TIG, rather than the NFL, carried the burden on timing. The court explained that where “there is no adjudication and no agreement that a loss falls within the ambit of the policy coverage,” the Court of Appeals has held that further proceedings are required to determine the basis of the insured’s liability, “not from the pleadings but from the actual facts.” In that situation, the insurer has the burden to show that “the loss compromised by the insured was not within policy coverage.” Applying that standard, the court found that “TIG has failed to establish that the players did not suffer any neurodegenerative injuries during the policy period.” 

Policyholder takeaway: For “continuing”—latent or progressive—injuries, such as environmental contamination, product defects, and occupational disease, coverage may be triggered across multiple policy periods. To escape coverage, an insurer must show that the injuries did not occur during its policy period.

Second Quarter: Is Your Business a “Product”? The Court Says Not Without Something Tangible

The court next addressed TIG’s argument that the NFL’s claims fell within the policies’ Products-Completed Operations Hazard (PCOH) coverage. That coverage applied to “your product” and, unlike other coverages, was subject to a $1 million aggregate limit.

TIG argued that football was the NFL’s “product” because, as a matter of “common speech,” the term “product” could include intangible items such as NFL football. TIG also pointed to representations made by the NFL in intellectual property litigation—that it “produces an entertainment product.”

The court rejected TIG’s argument and held that football does not qualify as “your product.” The court noted that the “goal of products-hazard [PCOH] coverage is to insure the party who is responsible for sending goods into the stream of commerce” when a “defect in the insured’s product [] manifests itself only after the insured has relinquished control.” The court found that TIG’s policy language was consistent with that purpose, defining “your product” as “goods or products” that are “manufactured, sold, handled, distributed or disposed of by” the insured or others trading under its name. It rejected TIG’s use of the word “product” isolated from the definition of “your product” in the policy and faulted the lower court for looking beyond the policy language. The court held, therefore, that the unambiguous policy language limited the PCOH coverage to tangible goods, which could not include football. 

Policyholder takeaway: Know how your policy defines key terms. Insurers may try to shoehorn your business into a coverage-limiting definition or subject it to sublimits. Similarly, be aware of prior statements made to insurers in claim and procurement communications: insurers may cite them out of context to try to avoid coverage.

Third Quarter: When Your Insurer Won’t Say Yes or No—Repudiation and Settlement Rights

Up next was TIG’s argument that the NFL settled without its consent, in contravention of the terms of the policy. TIG also argued that the Concussion Litigation settlement was unreasonable.

The court said no to TIG on both points.

As to settlement, the court held that there was a question of fact as to whether TIG’s actions relieved “the NFL of the obligation to obtain TIG’s consent to settle.” The court said that if an insurer “has repudiated liability for a claim on the grounds that it is not covered by the policy, the insured may settle without the insurer’s consent.” Further, the court explained that “an insurer’s unreasonable delay in handling an insured’s claims, consistent position that the claims did not constitute claims under the policy, and insistence that payments were not insurable, ‘constitute[d] a denial of liability.’” 

Though TIG never expressly denied coverage, the court held that there was an issue of fact as to whether TIG’s cross-claims in this action “sought an explicit declaration that TIG had no duty to the NFL under the policies or denied coverage on the basis that the claims are not covered under the policies, thereby relieving the NFL of the obligation to obtain TIG’s consent to settle.” That question was not resolved by TIG’s payment of some of the NFL’s defense costs; the court noted that a “disclaimer of coverage is not given less weight simply because it also indicated the insurer would defend the insured under a reservation of rights.” 

The court also left open whether TIG withheld consent in bad faith. It observed that TIG may have engaged in unreasonable delay by failing to make a coverage determination, continuing to reserve its rights, and refusing to consent to settlement while awaiting defense communications that TIG was not entitled to. 

Finally, the court held that the settlement was reasonable as a matter of law. Guided—though not bound—by approvals from both the federal district court and the Third Circuit, and noting the complexity of the claims, the publicity associated with the litigation, and the defense costs, the court held that the estimated $1 billion settlement was reasonable. TIG itself admitted that the NFL had sought its consent to settle at least nine times over many months, and the court previously had held that the information TIG demanded was privileged. “As TIG was on notice, it cannot now object to a settlement merely because it believed it could have driven a tougher bargain, or been a tougher litigator.” 

Policyholder takeaway: An insurer that refuses to commit on coverage while demanding veto power over settlement risks relieving the insured of the obligation to obtain its consent to settle and being bound by a reasonable, good-faith settlement. Policyholders should document each request for consent, each refusal, and the reasonableness of the rejected settlement proposals.

Fourth Quarter: You Paid Yourself? The “No Loss” Defense Doesn’t Work That Way

Finally, TIG threw a Hail Mary and argued that the NFL suffered no “loss” because its 32 member teams had paid for the settlement. The court ruled the argument incomplete. As an unincorporated association, the NFL is not a legal entity separate from its member teams, so a payment by the teams is a payment by the insured. Under New York law, moreover, collateral contracts and relationships relieving an insured of loss do not reduce an insurable interest. And while an insured may not recover twice for the same loss, there was no double recovery here because TIG had paid nothing toward the settlement.

Policyholder takeaway: Insurers may argue that other funding sources (members, affiliates, internal reserves) eliminate a “loss.” This decision reinforces that, under New York law, collateral arrangements generally do not diminish an insured’s right to recover, though the holding turned in part on the NFL’s status as an unincorporated association and the precise nature of the payment.

Conclusion

On balance, this case is a significant win for the NFL and policyholders. As the takeaways above illustrate, policy language matters, insurers’ coverage defenses have limits, and policyholders benefit from documenting insurer conduct throughout the claims process. Policyholders facing complex claims should carefully review their coverage and engage experienced coverage counsel early.