In 2014, the National Football League and NFL Properties, LLC (together, NFL) entered into a class action settlement in federal multidistrict litigation (MDL) resolving litigation brought by former players alleging the NFL failed to inform them of and protect them from concussion risks in football. Coverage litigation began long before the settlement was inked. On October 1, 2026, the coverage dispute inched closer to final resolution with the decision of the New York Appellate Division in Discover Prop. & Cas. Co., et al. v. Nat’l Football League, et al. —N.Y.S.3d —, No. 2025-03200, 2026 WL 2948933 (N.Y. App. Div. Oct. 1, 2026). The Appellate Division reversed key rulings entered by the New York Supreme Court, New York County, on cross-motions for summary judgment, finding each claim by or on behalf of a former player constitutes at least one “occurrence” under a primary policy issued by TIG Insurance Company (TIG) and that NFL football is not a “product” as that term is defined in the Products Completed Operations Hazard (PCOH). As a result, the court found that fifth-layer excess insurer American Guarantee and Liability Insurance Companies (AIGLIC) owes no indemnity coverage to NFL, because the first layer insurer, TIG, did not have an aggregate limit and the settlement capped the possible award for any one player below TIG’s per occurrence limit.

The underlying MDL, Matter of National Football League Players’ Concussion Injury Litig., 307 FRD 351, 361 (E.D Pa 2015), aff’d 821 F3d 410 (3d Cir 2016), cert denied 580 US 1030 (2016) consolidated the claims of approximately 5,000 players and over 300 “substantially similar lawsuits.” Discover Prop & Cas., 2026 WL 2948933 at *2. The MDL settlement provides three benefits to players suffering from “qualifying diagnoses” like chronic traumatic encephalopathy (CTE), including an uncapped monetary settlement with caps on individual awards that limited each player with a qualifying diagnosis to a maximum award between $1.5- $5 million, depending on certain variables. Id. at *3.

TIG had two policies that covered the NFL. The first was a primary general liability policy with a $1 million per occurrence limit, and the second was a follow form excess policy covering the next $15 million per occurrence. AIGLIC issued the fifth layer excess liability policy to the NFL that followed form to the TIG primary Policy. TIG, which defended pursuant to a reservation or rights, did not dispute the TIG Policy had no aggregate limit for most claims, but maintained that the losses fell under the Products Completed Operations Hazard (“PCOH”), which had a $1 million aggregate limit. Id. at *4. Thus, there were only two ways the NFL claims could trigger the AIGLIC policy: first, if all of the player’s concussions were considered to be a single occurrence, they could exceed the underlying policy limits.  Second, if the claims fell within the PCOH coverage, which had a $1 million aggregate, they could exceed the underlying limits.  TIG maintained that the claims constituted a single occurrence and also maintained that they fell within the PCOH coverage so the aggregate limit would be exhausted.  AIGLIC argued its policy could not be triggered because each player’s alleged injury constitutes a separate occurrence and because NFL football is not a “product” so the PCOH aggregate limit was not triggered. Id. at 3-4. The court agreed with AIGLIC on all points.

Relevant Policy Language: The TIG Policy’s $1 million PCOH aggregate coverage limit was the “‘most’ TIG would ‘pay’ under Coverage A for damages because of ‘bodily injury’ and ‘property damage’ included in the ‘products-completed operations hazard,” including a “limited category” of bodily injury claims occurring “away from the premises the insured owned or rented which arose from ‘your product’ or ‘your work’ excepts products that are still in the insured’s physical possession or work that has not yet been completed or abandoned.” Id. at *6 (emphasis in original) (cleaned up). Used therein, “your product” meant “‘goods or products, other than real property, manufactured, sold, handled, distributed or disposed of’ by the insured, others trading under the insured’s name, and ‘containers (other than vehicles), materials, parts or equipment furnished in connection with such goods or products.” Id. (cleaned up).

The TIG Policy was also endorsed with “Liability to Participants” coverage – Coverage D – pursuant to which TIG agreed to “pay those sums that the Insured becomes legally obligated to pay as damages because of ‘bodily injury to any ‘participant’ subject to the limits of insurance.” Id. “Participants” included players. Id. The AIGLIC Policy provided the same coverage for damages covered by the TIG Policy.

The Appellate Division deemed the question of the number of occurrences to be the threshold inquiry. TIG argued that all of the players’ injuries were due to the singular event of NFL football, regardless of the time, place, manner or number of hits sustained in their career. Thus, according to TIG, the injuries arose from on common event that was “part of the same causal continuum, without intervening agents or factors.” Id., at *8. The court rejected this argument. Applying New York’s “unfortunate events test”, the court found that each player’s individual injuries constituted a single occurrence. Id. The court first looked at the TIG Policy’s “occurrence” definition “for the suggestion of an intent to group claims” then consider “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.” Id. TIG conceded there was no grouping language in its policy but posited that that an “ongoing single-occurrence finding is warranted under the ‘unfortunate event test’” because all players with Qualifying Diagnoses sustained those diagnoses the same way – “playing the singular event of NFL football.” Id. The court disagreed because the incident giving rise to the players’ injuries was not playing NFL football, but rather the head impacts, which took place at different times, on different fields, over at least two decades. Id. Those impacts, which affected thousands of former players who played thousands of games over decades in 90 different stadiums lacked the “temporal and spatial characteristics” required to unify them as a single occurrence, which the court concluded could not be said to have been “precipitated by a single causal continuum.” Id.

The court also rejected the position that the TIG Policy’s “occurrence” definition – “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” – meant all players injuries should be considered a single occurrence. Without aggregation-of-claims language identifying “repeated head impacts” as the operative incident that would give rise to liability, and nothing suggesting the head impacts constituted exposure to the same generally harmful conditions, the court was constrained to find grouping was not appropriate under the policy language and applied the results of the “unfortunate events test” to find at least one occurrence per player. Id. at **9-10.

The court also overturned the Supreme Court’s finding that NFL football was a “product” under the PCOH coverage. The lower court had concluded the term “product” could, as a matter of “common speech” include intangible items like NFL football. The Appellate Division found this reading failed to comport with the purpose of products-hazard coverage, which is meant to insure the party responsible for sending goods into the marketplace, protecting the insured from the risk of loss that occurs when the product leaves the seller’s normal business premises and causes damage elsewhere. In looking beyond, the policy language and finding a broader definition for the word “product” the Supreme Court ignored the reasonable expectations of the average insured purchasing PCOH coverage. The Court said it was improper to isolate the word ‘product’ from its context. “The plain language indicates that the product, as expected to be covered by the PCOH, is a tangible/physical product. Supreme Court should not have expanded the definition of ‘product’ to include intangible products simply because that interpretation is possible.” Id. at 12.

With multiple occurrences in play and no ‘product’ to bring the claims within the PCOH coverage, there was no possibility that the MDL settlement payments would ever reach AIGLIC’s $51 million threshold, so AIGLIC owed no coverage.

Discover highlights the uncertainty that can result when the meaning of undefined policy terms become the lynchpin between coverage and no coverage, and the importance of tying policy language to the nature of the risks meant to be insured against, particularly during the current explosion of artificial intelligence offerings, which can straddle the definition of product and service.

In the interest of brevity, we focused on two of the key rulings in this case. See the full opinion for why the court rejected TIG’s positions that: 1) football players neurodegenerative diseases do not constitute an “occurrence” because they are an inherent risk of the intentional violent impacts of NFL play; 2)  the NFL could not meet its burden of showing that players recovering under the settlement did not sustain their injuries during the policy periods;  3) NFL’s notice of claim was untimely, and 4) NFL did not suffer a ‘loss’ because it was allegedly indemnified by the NFL Clubs. The court also discussed why the settlement was reasonable.

About Natalie C. Metropulos

Natalie C. Metropulos is an associate in the Insurance Services Practice Group in the Pittsburgh, PA office. She represents clients in complex coverage matters involving claims for defense and indemnification for third-party claims under Commercial General Liability, Directors and Officers, and Errors and Omissions policies, and for first-party recovery under Commercial Crime policies. Natalie is adept at performing coverage analyses. She supports and advises her clients from claim submission through resolution. Click here to read Natalie’s full attorney biography.