NFL Concussion Insurance Ruling: How New York Counts an Occurrence

On October 1, 2026, the Appellate Division, First Department decided the insurance fight behind the NFL concussion settlement. The opinion opens with the question in one line: “is the NFL entitled to insurance coverage for the MDL settlement?” Most of the answer turns on one word in the policies: occurrence. That word can also decide how much insurance money exists in an ordinary Long Island concussion or brain injury case, which is why I am writing about a coverage case between a football league and its insurers.

The case and the insurance tower

In 2014, the NFL and NFL Properties LLC settled the federal multidistrict litigation brought by former players who alleged the league failed to inform them of, and protect them from, the risks of concussions. The settlement covered over 20,000 retired players. Two insurers that issued the NFL’s general liability policies decades earlier, TIG (with North River and U.S. Fire) and American Guarantee and Liability Insurance Company (AGLIC), were still fighting over whether they had to pay toward it.

The insurers wanted opposite things. AGLIC sat high in the tower and wanted the claims split into many small occurrences, because small occurrences never reach its layer. TIG wrote the bottom layers and wanted them treated as one occurrence, because one occurrence means one per-occurrence limit for all of them. Here is the tower beneath AGLIC’s policy, as footnote 8 of the opinion describes it.

Consequently, the count of occurrences was the whole fight. Count each player separately and the bottom of the tower pays player by player while the top is never reached. Count all of them as one and, as the court described TIG’s argument, the claims could add up to a single claim that reaches the $51 million threshold and triggers AGLIC’s policy.

How New York counts occurrences

New York uses what the courts call the “unfortunate event” test, from Appalachian Ins. Co. v General Elec. Co., 8 NY3d 162 (2007). The court starts with the policy’s own definition of occurrence, looking for any sign the parties meant to group claims. Then it asks “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.”

TIG conceded the test applies. Its argument was that NFL play itself is one ongoing event. The court disagreed. The impacts involved “over 20,000 former players who participated in approximately 10,000 games over multiple decades, in approximately 90 different stadiums,” and they did not share the same “temporal and spatial” characteristics “to unify them as one occurrence.”

Nor were they one causal chain. The court quoted Appalachian: “causation is pertinent once the incident … is identified, but the cause should not be conflated with the incident.” Each head impact was sustained by a different player, at a different time, in a different place.

The declaration itself is the sentence lawyers will quote: “each claim by or on behalf of an individual player constitutes at least one separate occurrence within the per-occurrence policy limits of each respective TIG primary insurance policy.” Note “at least one.” The court did not cap any player at a single occurrence.

Appalachian itself was an asbestos case. General Electric wanted the asbestos injury claims tied to its turbines, installed at more than 22,000 sites, grouped as one occurrence so it could exhaust its primary policies and reach its excess carriers. The Court of Appeals held that “the incident that gave rise to liability was each individual plaintiff’s ‘repeated or continuous exposure’ to asbestos.” Each person, one occurrence. The NFL decision applies the same logic to head impacts.

The grouping clause in the older policies

TIG had a second argument for its 1984-1989 policies, which contained grouping language: “all bodily injury and property damage arising out of continuous or repeated exposure to substantially the same general conditions shall be considered as arising out of one occurrence.”

The court held that the clause did not reach these claims. Parties are free, it said, to “define occurrence in a manner that group[s] incidents” as they see fit. But “[i]n the absence of a specific aggregation-of-claims provision precisely identifying the operative incident or occasion giving rise to liability, [we] must apply the ‘unfortunate events’ test to determine whether the underlying multiple claims constitute multiple ‘occurrences’ under the policy,” quoting ExxonMobil Corp. v Certain Underwriters at Lloyd’s, London, 50 AD3d 434 (1st Dept 2008).

The clause failed on its words. “Here, the grouping provision does not contain language identifying the operative incident as the repeated head impacts leading to each player’s injuries.” And different players, in different stadiums, at different times, were not exposed to “the same general conditions.”

General grouping words did not group these claims. A policy that names the operative incident precisely can; I come back to that below.

Whether NFL football is a product

The policies carried a products-completed operations hazard (PCOH) aggregate limit, a cap on the total paid for injuries “arising out of ‘your product’ or ‘your work’” away from the insured’s premises. TIG argued that NFL football is a product, so that cap applied and limited what TIG owed. The trial court had agreed that “product,” in common speech, could include something intangible like NFL football.

The First Department vacated that finding. The policy defines “your product” as goods or products “manufactured, sold, handled, distributed or disposed of” by the insured, and the hazard applies only to products no longer in the insured’s “physical possession.” Quoting Frontier Insulation Contrs. v Merchants Mut. Ins. Co., 91 NY2d 169 (1997), the court said “[t]he goal of product-hazards coverage is to insure the party who is responsible for sending goods into the stream of commerce.” Its holding: “Their plain language indicates that the product, as expected to be covered by the PCOH, is a tangible/physical product.”

Consequently, the PCOH aggregate limit does not apply to these claims. The policy years at issue have no general aggregate limit either. The court said so in one line: “The policy years at issue do not impose general aggregate policy limits.” For those policy years, then, each player’s claim draws on its own per-occurrence limit.

The rest of the decision, issue by issue

The court decided several things for the NFL, one thing for AGLIC, and left several questions for trial. Each ruling, as the opinion states it:

Two rows matter beyond football. The reasonableness ruling holds that an insurer kept informed of the negotiations, and asked for consent “on at least nine occasions,” cannot later attack the settlement because it was refused its insured’s privileged defense files or thinks it could have bargained harder. The “no loss” ruling tells it that money the insured’s own members paid is still the insured’s loss. Consent and late notice remain open.

Who pays for the next policy, in my view

What follows is my opinion and my commercial judgment, not a holding. The decision says nothing about premiums.

My view is that these policies were never priced for this, and now that the insurers know essentially what the damages are going to be for people who played in the NFL, there’s no way that pricing stays where it was. So a policy that would cover this would cost hundreds of millions of dollars a year. It just has to.

The only other thing an insurer can try and do is narrow what an occurrence is in the next policy. But then the NFL is just going to have to purchase insurance with a larger limit per occurrence. And so this policy, as currently written, is just not sellable. Any modified policy would either give less coverage which would put the NFL on the hook for more money or if it gives similar coverage will probably cost 100 times as much in premiums.

The legal hook for that prediction is in the opinion itself. Parties may write a “specific aggregation-of-claims provision precisely identifying the operative incident,” and Appalachian said the same thing in 2007: “If they intend to allow grouping of claims, they need only include language expressing that intent.” Whether a grouping clause written for the next policy holds up is a question for the appellate courts as the law matures; I am not predicting how any court will read language nobody has written yet.

Someone is going to write that policy. But in my opinion, the cost of it’s going to be borne by you, the fans that watch the game. It’s also going to be borne by the people that pay for satellite and other ways to watch these games, by the people that buy licensed products and by the people who buy concessions at the game. The cost of this insurance is spread around to everybody that is entertained by the NFL product.

Per-occurrence and aggregate limits in an ordinary injury case

Two numbers on the declarations page of a liability policy decide most of what follows.

Take one person. A Hicksville father is one of four people hurt when a delivery van runs a red light on Old Country Road. The crash is one accident. If the van’s policy carries only the New York minimum, the four injured people share fifty thousand dollars for bodily injury, and no one of them can take more than twenty-five thousand dollars of it. His case is then about finding more coverage: the van company’s other policies, an umbrella, and his own household’s underinsured motorist coverage. Our page on multi-car and multi-victim crashes covers who gets sued, and the umbrella coverage guide covers the layer above the auto policy.

A repeated-exposure injury runs the other way. Under the policy wording in Appalachian, each worker’s own exposure to asbestos was a separate occurrence, so one family’s asbestos injury claim did not share a per-occurrence limit with every other worker exposed to the same product. Whether that holds under a different policy depends on its words, read under the same test. Our Long Island mesothelioma page explains how those cases are built.

You have to get the policy itself, not the adjuster’s summary of it. The declarations page shows both numbers. The definition of “occurrence” shows whether the insurer wrote a grouping clause. An insurer’s letter stating its limits is where the counting argument starts, not where it ends.

Bring these to the first call:

• every insurance card and declarations page you have, including your own household’s auto policies;
• the police report number, and the names of everyone else who was hurt;
• any letter from an insurer stating its limits or calling the event a single occurrence or accident;
• for an exposure illness, a list of every job, building or ship, and the years you worked there.

Sources

• Discover Prop. & Cas. Co. v National Football League, 2026 NY Slip Op 05595 (1st Dept Oct. 1, 2026)
• Appalachian Ins. Co. v General Elec. Co., 8 NY3d 162 (2007)
• Vehicle and Traffic Law § 311
• ExxonMobil Corp. v Certain Underwriters at Lloyd’s, London, 50 AD3d 434 (1st Dept 2008); Frontier Insulation Contrs. v Merchants Mut. Ins. Co., 91 NY2d 169 (1997), as quoted in the First Department’s opinion