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Volume 22 No. 35
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NFL wants its insurers to cover $1 billion in lawsuit

The NFL is seeking more than $1 billion from its insurers to cover the cost of the class-action concussion settlement, the insurance firms disclosed in recent court documents. That would cover much of the estimated $1.4 billion settlement that was struck in 2013 and has survived a series of legal challenges, most recently in 2016.

The insurers and the league are embroiled in a legal struggle as the insurance companies seek to avoid covering the settlement. They contend the NFL knew about the risks of head trauma and so that negates the policies. Neither the league nor the insurers had publicized how much the NFL wants from its carriers until the recent disclosures. In two separate legal filings earlier this month, the companies unveiled the amount.

The NFL reached a provisional settlement for its class-action concussion lawsuit in 2013, with the latest estimates pegging the payouts at $1.4 billion over 65 years.
Photo: getty images

“In this litigation, where the NFL Parties are seeking what has been estimated at over $1 billion in insurance coverage, the Insurers are entitled to make sure all pertinent issues are fully discovered,” 25 insurers represented by the law firm Troutman Sanders wrote.

And another group of insurers wrote: “The NFL Parties also seek a declaration requiring the Insurers to reimburse what is predicted to be more than a billion dollars in underlying settlement payment.” Some of these 27 insurers, represented by the law firm Kennedys CMK, overlap with the ones represented by Troutman.

The filings were made as part of the insurance companies’ efforts to conduct discovery on what the NFL knew in past years about the risks of playing football. The insurers are seeking a court order to require the league to hand over more documents than they already have. A hearing on the issue is scheduled for Tuesday in New York State Supreme Court.

“It bears further noting that the majority of third parties subpoenaed by the Insurers (including the MTBI Committee doctors and each of the Member Clubs) have asserted that the Insurers should obtain the relevant documents from the NFL Parties in the first instance,” the insurers represented by Kennedys wrote. The NFL’s Mild Traumatic Brain Injury (MTBI) committee disbanded in 2009 after 15 years following accusations that the group served to whitewash the dangers of concussions. “Many of these third parties also advised that the NFL may claim privilege over responsive documents in their possession and that a privilege review by the NFL would be necessary. Thus, the NFL Parties have stymied the Insurers’ discovery efforts both directly and indirectly.”

The NFL declined to comment. Attorneys for Troutman and Kennedys did not respond to queries about where the $1 billion figure came from.

The settlement has been reported as costing $1 billion. In July 2018 the plaintiffs’ counsel filed with the court an expert opinion that — based on payouts that were higher than anticipated — the cost would top at least $1.4 billion. No new estimate has been filed since.