Number of Occurrences – New York

Discover Prop. & Cas. Co. v. Nat'l Football League
No. 2025-03200, 2026 WL 2948933 (N.Y. App. Div. Oct. 1, 2026)

The Supreme Court of the State of New York, Appellate Division, First Department, held that concussion-related injury claims brought by former professional football players constituted separate occurrences under the National Football League’s (NFL) liability policies, so a fifth-layer excess policy was not triggered. The appellate court also held that NFL football is not a “product” under the policies’ Products-Completed Operations Hazard (PCOH) provisions, found the NFL’s uncapped settlement reasonable and rejected TIG’s “no loss” defense.

In July 2011, 73 former NFL players and families sued the NFL and NFL Properties LLC (collectively, the NFL) in California state court, alleging that the NFL failed to protect players from the chronic risks of concussive and sub-concussive head injuries and concealed those risks. The cases were consolidated with later-filed suits in a Multi-district Litigation (MDL) in the U.S. District Court for the Eastern District of Pennsylvania, where approximately 5,000 players filed over 300 substantially similar lawsuits.

TIG Insurance Company and its affiliates (collectively, TIG) defended under a reservation of rights but repeatedly withheld consent to proposed settlements. The NFL entered an uncapped class settlement that the MDL court approved in April 2015 and that became effective in January 2017 after an appeal to the U.S. Court of Appeals for the Third Circuit. The settlement included a $75 million baseline assessment program, a $10 million education fund and an uncapped monetary award fund for six qualifying diagnoses, including individual maximum awards of $1.5 million to $5 million depending on diagnosis level.

In August 2012, several insurers filed a declaratory judgment action against the NFL, TIG, American Guarantee and Liability Insurance Company (AGLIC) and other insurers. TIG issued primary general liability policies to the NFL from 1978 through 2002, plus various umbrella and excess policies. AGLIC issued a 2001–2002 following form excess policy attaching above $51 million per occurrence. AGLIC moved for summary judgment, arguing that each player’s injury was a separate occurrence that could not reach its layer. The New York County Supreme Court (the trial court) denied the motion; although it found multiple occurrences, it held that NFL football could be a “product” under a “common speech” understanding. The trial court later denied the NFL’s and TIG’s competing summary judgment motions, and appeals followed.

Applying New York’s “unfortunate event” test, the appellate court affirmed that the players’ injury claims constituted multiple occurrences. Because the 2001–2002 TIG primary policy contained no grouping language, the appellate court considered whether the incidents had a close temporal and spatial relationship and formed part of the same causal continuum. Although the injuries shared some commonalities, the appellate court reasoned that impacts involving over 20,000 former players in approximately 10,000 games across multiple decades and approximately 90 stadiums lacked the “temporal and spatial” characteristics “to unify them as one occurrence.” The appellate court rejected TIG’s argument that playing in the NFL was a single ongoing event constituting one occurrence, holding that the grouping language in TIG’s 1984–1989 policies did not aggregate the claims because it did not identify the repeated head impacts as the operative incident.

The appellate court concluded that the claims fell within Coverage D of the 2001–2002 TIG primary policy, a “Participants Endorsement” covering bodily injury to players. Because Coverage D was limited to $1 million per occurrence and the TIG policy had no general aggregate limit, the claims could not reach AGLIC’s $51 million attachment point, and AGLIC had no duty to indemnify the NFL for the MDL settlement. The appellate court, therefore, held that AGLIC’s motion for summary judgment should have been granted.

On the PCOH issue, the appellate court held that the trial court improperly looked beyond the policy language. The policies defined “your product” as goods or products manufactured, sold, handled, distributed or disposed of by the insured, and the PCOH applied only to products no longer in the insured’s “physical possession.” The appellate court reasoned that treating an intangible commodity as a product under the PCOH provision “strains the plain meaning, and obvious intent, of the language”. Therefore, the PCOH aggregate limit did not apply.

The appellate court rejected TIG’s argument that the injuries were not occurrences because they were an inherent risk of football, noting that the occurrence was the development of neurodegenerative disease, which TIG’s own expert said was not inherent in football. Under the injury-in-fact trigger, TIG also failed to show that the players were not injured during its policy periods. Issues of fact, however, precluded summary judgment on late notice because the record did not show when the NFL received notice.

Finally, applying an objective standard, the appellate court held the settlement reasonable, giving weight to the federal courts’ approval and noting that TIG was consulted at least nine times and could not “object to a settlement merely because it believed it could have driven a tougher bargain.”

By: Chelsea A. Kormos