First Department Holds Each Player’s Concussion Claim Is At Least One Separate “Occurrence” Under NFL’s Liability Policies

Posted: October 12, 2026 / Written by: Ian Weiss / Categories Contract Interpretation, Summary Judgment

First Department Holds Each Player’s Concussion Claim Is At Least One Separate “Occurrence” Under NFL’s Liability Policies

On October 1, 2026, in Discover Property & Casualty Co. v. National Football League, Index No. 652933/12, Case Nos. 2025-03691 and 2025-03200, the Appellate Division, First Department, held that each former player’s claim resolved in the NFL’s concussion settlement constituted at least one separate “occurrence” under the NFL’s liability insurance policies, whose limits applied per occurrence. The NFL’s insurer, TIG, argued that all of the players’ injuries arose from a single occurrence—NFL play—so that only one set of limits applied. New York courts determine the number of occurrences under the “unfortunate event” test, which 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.” Applying that test, the Court explained:

It is undisputed that the incidents giving rise to the players’ injuries are head impacts sustained during their NFL career, and that their NFL play took place at different times, on different fields, and over the course of 24 years. While the incidents giving rise to the injuries share some commonalities, it cannot be said that the impacts at issue here, which involve over 20,000 former players who participated in approximately 10,000 games over multiple decades, in approximately 90 different stadiums share the same “temporal and spatial” characteristics “to unify them as one occurrence.”

These incidents are also not part of the same causal continuum. When determining whether an incident is part of the same causal continuum, the unfortunate event test requires that we focus on the “nature of the incident[s] giving rise to damages.” Contrary to TIG’s argument, the NFL’s coverage theory does not change what constitutes a single occurrence—“causation is pertinent once the incident . . . is identified, but the cause should not be conflated with the incident.” Here, given that each head impact was sustained by different players, at different times, in different places, throughout the entirety of each player’s career, and over several decades, the incidents cannot be said to have been precipitated by a single causal continuum.

(Citations omitted.)

The Court also held that language in certain of TIG’s policies providing that injuries “arising out of continuous or repeated exposure to substantially the same general conditions shall be considered as arising out of one occurrence” did not combine the players’ claims, because the head impacts “involved different players and took place in different stadiums, at different times, and under different circumstances.”

Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning the number of occurrences under liability insurance policies.

To read more about insurance coverage disputes, see Schlam Stone & Dolan’s related Commercial Division Blog posts on a decision holding that a policy covering “direct physical loss” did not reach COVID-19 losses absent tangible damage to the property and a decision holding that a computer-fraud rider covered unauthorized access to the insured’s computer system, not fraudulent content submitted by authorized users.