NFL Hit Heavy with Brain Injury Lawsuits—Counters with Breach of Contract Suit

Los Angeles, CAOn the heels of more than 140 brain injury lawsuits filed against The National Football League (NFL), the league filed a lawsuit of it's own on August 15, 2012 against approximately 36 insurance companies for breach of contract.

The complaint, which was filed in California state court in Los Angeles, claims that insurers such as Fireman’s Fund Insurance Co. and TIG Insurance Co. have refused to defend the NFL in at least 143 personal injury suits against the league, which include mostly brain injuries.

The NFL’s lawsuit claims its insurers were obligated to defend the league under its general liability policies, which the group said they had not provided. According to Reuters (8/16/12), the NFL alleges in its complaint "As a direct and proximate result of said insurers' breach of their contractual duty to defend the NFL and NFL Properties in and against the injury lawsuits, Plaintiffs have suffered damages in attorneys' fees and other costs incurred to defend against those suits", adding it was entitled to at least $5 million in damages.

Brain Injury Lawsuits Against the NFL
In June of this year, more than 80 NFL lawsuits involving more than 2,000 players were consolidated as a “master complaint,” and filed in a federal court in Philadelphia, PA.

The complaint against the NFL says that the league knew the risks of head injuries for decades but hid or ignored evidence that linked such injuries to permanent brain damage. It alleges that the league is guilty of common-law fraud and negligence as it “was aware of the evidence and the risks associated with repetitive traumatic brain injuries virtually at its inception, but deliberately ignored and actively concealed the information from the Plaintiffs and all others who participated in organized football at all levels”.

The lawsuit is asking that the NFL be held responsible for the care of players suffering from neurological disorders, including dementia.

One recent plaintiff to join the nationwide head injury lawsuit is Derrick Walker, a former player for the San Diego Chargers, Kansas City Chiefs and Oakland Raiders. He is seeking at least $500,000 in damages over head injuries he suffered during NFL games. Another plaintiff, ex-Lions quarterback Eric Hipple, claims he suffered multiple concussions and head injuries in many games, but he was told to keep playing, “even though he was clearly medically ineligible,” according to his lawsuit.

Both Hipple and Walker suffer from multiple past traumatic brain injuries, or TBIs, with symptoms including memory loss, headaches, depression and sleeplessness.

In 1994, the NFL created the “Mild Traumatic Brain Injury Committee” with the intention of researching the effects of concussion. The committee would advise the NFL on measures to prevent and manage such brain injuries, according to Paul D. Anderson of nflconcussionlitigation.com. Instead, this master complaint against the NFL alleges that it kept a “campaign of disinformation” intended to subjugate research linking successive concussions with later-life cognitive decline.

The complaint also accuses the NFL of creating “a falsified body of research which the NFL could cite as proof that truthful and accepted neuroscience on the subject was inconclusive and subject to doubt,” according to the Canadian Medical Association.

Increasingly, former football players are coming forward with brain injury complaints against the NFL. Sadly, some retired players, such as Dave Duerson, committed suicide by shooting themselves in the chest—with the intention of preserving their brains for future study. An autopsy revealed that Duerson had brain trauma-induced disease linked to other deceased players.

It would appear that the NFL lawsuits against insurers, which says it has incurred $5 million in attorneys’ fees and other costs to defend against the lawsuits, won’t soften the blows inflicted upon their players.

UPDATE 8/22/12: A lawsuit has been filed by several subsidiaries of Travelers Companies Inc. in response to breach of contract lawsuit recently filed by the NFL against its insurers. The Travelers lawsuit is seeking to avoid paying to defend the league against a wave of brain injury-related claims by thousands of former players and their families.

The lawsuit (Discover Property & Casualty Co. et al. vs. National Football League et al., New York State Supreme Court, New York County, No. 652933/2012) claims Travelers provided liability coverage for NFL Properties, the league's merchandising arm, but not the NFL and should not be required to pay for a joint defense.