Archive for the ‘Lawsuits’ Category

Legionnaires’ Disease and Health Clubs

Steps to preventing Legionnaires also reduce liability risks

The Centers for Disease Control estimates that 8,000 to 18,000 Americans are hospitalized each year after contracting Legionnaires’ disease. Legionnaires’ is a bacterium that thrives in water that is stagnant, unsterilized and warm. An individual can only contract the disease by breathing in vapors that carry the bacteria. It cannot be transmitted from person to person. Health club owners can decrease the risk of infecting their patrons by conducting regular water system maintenance.

A Memphis 24 Hour Fitness is currently embroiled in a $2 million lawsuit filed by Jerome Walsh after he contracted Legionnaires’ disease at the facility. He is one of three people hospitalized between May 21 and June 21, 2103.

The 24 Hour Fitness USA facility was regularly cleaned and maintained to industry standards, according to spokeswoman Robin Rootenberg. She also stated that the chemicals used for cleaning are industrial grade. A third party has been brought in to conduct testing on the infected area, which currently remains closed. The company is engaged in environmental remediation with a firm approved by the health department.

Health Club and Fitness Club Insurance

Proper insurance is critical to protecting your health and fitness club in the event of devastating claims, which can involve multiple individuals alleging extreme damages.  However, many General Liability policies for health clubs include two exclusions which most eliminate coverage.

Pollution Exclusion: All General Liability policies include the standard Pollution Exclusion.  A pollutant is defined as an irritant or contaminate in any form (solid, liquid, or gaseous).  So far most courts are reluctant to deny coverage for Legionnaires’ lawsuits when carriers invoke this exclusion as they don’t consider the bacterium to be a pollutant.

Fungi or Bacteria Exclusion: Many General Liability policies include an endorsement that excludes fungi or bacteria that are present within a building or structure with the exception of those that are contained in a  product intended for bodily consumption.  Since Legionnaires’ disease is a bacterium, this exclusion could be invoked by the insurance carrier to deny coverage.  However, some courts have upheld coverage depending on the exact location in the facility where the disease was contracted.

Ensure that your health club stays protected by adhering to all environmental and industry guidelines for the cleaning and maintenance of for your water systems, including Jacuzzis, saunas, and pools.

Visit our Health Club General Liability Insurance page to get a quick quote.  We don’t require you to join an association to qualify for this coverage.

Source: Tennessee Health Club Sued Over Legionnaires’ Disease 

NFL Strikes Back in Concussion Media War

Consultants’ research and motives questioned

Dr. Mitchell Berger of the NFL’s Head, Neck, and Spine Committee was interviewed by ESPN’s “Outside the Lines” and spoke out against Boston University researchers Robert Cantu and Chris Nowinski. Berger accused the the two self interest by trying to profit from the hype they created with studies linking football and brain damage.

“The BU Group, their whole existence — their funding — relies on perpetuating that it’s a fact if you play football you’re going to have some form of cognitive impairment….So it’s very, very difficult to accept it because it is so biased,” said Berger.

Dr. Cantu aptly responded by saying, “Mitch Berger, with all due respect, is full of s—. No, not with respect.”

It should be interesting as the former players’ lawsuit against the NFL progresses to get a more balanced perspective on the issue because, so far, the media has only covered the plaintiffs’ allegations.

Please see our previous articles for more information on the ongoing debate about concussions in the NFL.

Source: Steve Fainaru and Mark Fainaru-Wada. “Between the Lines.” 06 April, 2013.

Accident Insurance and Baseball

Spectator injuries not covered by Little League policy

New Jersey’s Elizabeth Lloyd, is suing for more than $150,000 in damages after being hit in the face by a baseball. Although Matthew Migliaccio was only 11 years old at the time of the incident, the lawsuit filed in April claims that Migliaccio’s overthrow from the bullpen was deliberate and reckless.

Lloyd is filing suit to cover for medical costs and pain and suffering, while her husband is suing for the loss of “services, society and consortium.”

The count alleging Migliaccio’s negligence is covered by the family’s Homeowner’s policy, but the other counts are not. Little League has denied any coverage, due to their accident policy only covering staff or players; spectators are not included.

In my opinion:

Little League is correct that spectator injuries are not covered by an Accident policy. However, “Accident like” benefits for spectator injuries up to a limit of $5,000 can be covered if the General Liability policy includes premises medical payments. Otherwise, if damages are greater than $5,000, the only recourse for an injured spectator is to sue. Such lawsuits would be covered under a General Liability policy under the Each Occurrence section. This case is similar to one that one of our league clients had about ten years ago when a spectator was hit in the jaw by an overthrow ball during pre game warm-ups. It was alleged that the league and coaches were negligent in allowing the players to form two lines for warm-ups where one line was too close to an unfenced spectator area. The carrier settled the case for around $300,000 but the damages were extensive.

-John Sadler

Source: Insurance Journal, June 26, 2012

Concussion Lawsuits Won’t End Football

How insurance and the law impact the concussion concerns

Will Oremus writes a well thought out explanation why concussion lawsuits will not end football. The main reasons cited are:

  • The initial medical expenses resulting from concussions and CTE are often not that high in most cases and symptoms take years to materialize. Therefore, the Accident Medical insurance carried by colleges, schools, and youth football organizations will not be hit hard since such policies limit payouts for medical bills to those that are incurred within one or two years from the date of the injury in most cases. Most CTE symptoms will show up years after a football career is finished and the Accident policy will be off the hook by that time. Therefore, these Accident carriers won’t take a big hit, which means that significant premium increases and market withdrawals are not likely.
  • The General Liability policies carried by schools and universities cover all the liability exposures such as slip-and-fall accidents, kids falling off playground equipment,  injuries at school sponsored events, etc., and concussion lawsuits are only a small portion of the overall risks. In 2011, only 13 catastrophic brain injuries were reported out of 4.2 million football participants nationwide.
  • The concussion and CTE-related lawsuits in the NFL are currently covered under Workers’ Compensation insurance (which overall allows for the collection of lower benefits as compared to civil lawsuits which would be filed under a General Liability policy) even though some 1500 former NFL players have filed lawsuits challenging Workers’ Compensation as the exclusive remedy.
  • The links between concussions and CTE to depression and suicide are not yet rock solid, even though some limited studies show a connection between NFL participation and CTE.
  • In order to win a lawsuit, a player will need to prove negligence (1. Duty owed to act as reasonable governing bodies, administrators, trainers, coaches, etc. in protecting football players, 2. Breach of that duty by not following accepted safety standards, 3. Breach was proximate direct cause of the injury, and 4. Damages resulted). As a result of the difficulty in proving negligence, the NFL lawsuits are alleging that the league knew about the dangers of CTE, but hid it from the players.
  • In lawsuits against colleges and high schools, no one is claiming that they hid evidence that football resulted in CTE. As a result, the lawsuits against colleges high schools are based on failure to follow accepted safety standards on not removing possibly concussed players from games and allowing too early return to play which may result in second concussion syndrome.
  • Even if a public school or university as an entity, or a coach or other school employee is negligent, many states have governmental or sovereign immunity statutes that protect against liability or at least limit liability to an amount such as $300,000, $500,000, or $1,000,000, depending on the state’s version of the law. These immunity statutes can be defeated upon proving gross negligence.
  • Some state concussion statutes also limit the liability of coaches, trainers, and other medical professionals when complying with the requirements of the statute unless they are grossly negligent.
  • The assumption-of-risk defense to negligence can be a powerful tool if the players receive an adequate and documented risk warning of the dangers of concussions.
  • If universities and high schools follow the concussion safety standards outlined by state statutes or their state or national sanctioning/governing body, they have a high level of built-in protection.
  • The governing bodies such as the NFL, NCAA, and National Federation of State High School Associations will implement rule changes to provide more protection as more research results become available.

We encourage you to read Oremus’ full article and our article, “The End of Youth Football? Not so fast.”

Source: Will Oremus. “After Further Review, Why Concussion Lawsuits Won’t Bring An End To Football,” May 10, 2012.

The End Of Youth Football?

Not so fast

The media has been practically salivating about a potential end of football. There’s no end to high profile articles outlining doomsday prophesies of the chain of events that could force the cancellation of football programs on every level due to lack of liability insurance (see Concussions and the Future of Football), connecting NFL player suicides to brain injuries, and lawsuits against colleges and high schools for second-impact syndrome injuries early return to play. These worst-case scenarios are certainly sensational, but I say not so fast.

I have recently been flooded with media requests for interviews on this topic. I am responding with this blog posting as I don’t have time for all the requests. What follows is my first takebased on the present information at hand.

We need stay away from decisions made out of fear arising from sensationalism. Instead we should make calm decisions based on science. If there is no scientific research on an issue, new studies should be immediately launched and carefully reviewed before conclusions are drawn and changes made.

There are three types of brain injuries that require specific risk management response strategies:

  1. The initial concussion
  2. The more dangerous second-impact syndrome due to “too early return to play”.
  3. The cumulative less-than-concussion events known as chronic traumatic encephalopathy or CTE (ex: helmet to helmet contact) that may result in brain damage over the long term.

The risks of these brain injury situations and the required protective responses need to be studied differently in the context of youth, high school, college, and professional athletes. The level of aggression, speed, and strength of the players increases tremendously from youth football to high school football as does the concussion risk. Also, the number of cumulative helmet-to-helmet hits and other head impacts increase significantly after high school football. The cumulative impacts over a college career are more than double those over a high school career and the number of impacts for pro players are significantly higher, even though the NFL has recently changed practice rules to limit helmet-to-helmet contact.

Other complicating factors that may result in additional brain damage and in higher suicide rates in the NFL are the past use of steroids, other drug additions, and unstable lifestyles.

Here are some thoughts from Joe Galat, president of American Youth Football, Inc. (AYF), the largest youth football andConcussion risk cheer organization in the U.S. with tackle football ages 5 to 15:

“…structured play is always safer than unsupervised activities. Today’s headlines dealing with the very disturbing developments in the National Football League may discourage some parents from allowing their children to play football… However, I am asking you to not compare your child’s participation with those who play in the extreme world of the NFL. Not just yet. The highways are full of safe drivers who don’t compete in “the extreme sport” of NASCAR. Like driving a car, it is important that kids learn safe techniques while playing youth football. When fundamental techniques are ingrained in a young player they become habits; safe play is the end result. When President Theodore Roosevelt instructed Knute Rockne to make the game safer, the players wore leather helmets and very little padding. Many of today’s safety issues are being solved through research, technology and rule changes. The leather-heads would hardly recognize today’s game.”

My primary interest is studying the concussion risks in youth tackle football. so my comments will be limited to that context.

Are the concussion rates in youth tackle football significantly worse than those in youth baseball, softball, basketball, and soccer? And if not, why are we not hearing anything about the end of those other sports or all youth sports, for that matter?
According to my injury database, the percentage of concussions to total injuries of athletes ages 5 to 15 are as follows:

Youth football 5.64%

Youth baseball 3.1%

Youth softball 2.43%.

According to Pat Pullen of Pullen Insurance Services, Inc., the percentage for youth soccer is 4.5%. I don’t have the percentage on basketball, but it is likely to be similar to baseball. In other words, how can you single out youth football without including the other sports?

What types of insurance policies would youth football organizations carry to cover medical bills from brain injuries and resulting lawsuits?

Youth football organization should carry Accident and General Liability insurance policies with sufficient limits.

The Accident policy pays medical bills of injured participants  after existing family health insurance has responded. Of course, medical bills include all concussion-related medical expenses that are approved by the insurance carrier. The limit on the Accident policy should be at least $100,000 for youth tackle football to adequately respond to most medium-to-serious concussion incidents. Accident policies typically only cover medical bills incurred up to one or two years from the date of the injury depending on the plan design.

A General Liability policy should also be carried to protect the youth sports organization and its directors, officers, employees, and volunteers against lawsuits alleging bodily injury, property damage, and personal/advertising injury. In addition to paying for legal defense costs, this policy will also pay covered costs for a settlement or adverse jury verdict. In the concussion context, the organization, its administrators and coaches could be sued by the injured player under a number of legal theories such as failure to use up-to-date helmets, make sure that they are inspected for defects, and are properly fitted, failure to have adequate EMS services available, failure to have an emergency evacuation plan, failure to adequately train coaches on concussion recognition and response, failure to remove a concussed or possibly concussed player from practice or game, failure to have an adequate return-to-play policy, and failure to adopt and implement rules to limit certain types of contact.  The General Liability policy should have an Each Occurrence limit of at least $1 million and higher options should be considered. General Liability policies with an “occurrence” policy form will cover claims that are reported in later years as long as the bodily injury occurred when the policy was in force. This is important in the youth sports context as a minor may wait until the age of majority, which is 18 in most states, plus two years (depending on state law) for the statute of limitations to run before filing a claim. Some General Liability policies use a “claim made” form which can present complications in providing coverage for lawsuits that are filed in later years in the event that the policy is not renewed every year or if the retro date is not properly set.

For an example of the different policies/coverages and the per team prices of a comprehensive insurance program for youth football, see the American Youth Football plan.

Would these lawsuits against youth football organizations likely be successful?

It depends on the nature of lawsuit and the facts in each case. Most would be negligence-based, which requires all of the following elements:

  1. Duty owed to act as reasonable and prudent sports administrators and coaches (based on state concussion laws, national standards per sanctioning/governing body rules, and accepted risk management practices)
  2. Breach of that duty
  3. Breach was proximate cause of injury
  4. Damages result.

All 50 states and the District of Columbia have enacted concussion laws that protect youth athletes. Some state laws only apply to school sports or youth sports organizations that use school property, whereas others apply to all youth sports organizations, even if not affiliated with a school. Little League Baseball, Inc. provides information regarding the  these laws.

Youth football organizations must follow the concussion rules of their state and/or their governing/sanctioning body. Failure to follow state law or an organization’s own rules can be a prima facie case of negligence, assuming that requirements 3 and 4 above are met. If a youth football organization is not part of a sanctioning/governing organization, it must follow nationally-accepted risk management practices which may lead back to the rules of the sanctioning/governing body. Furthermore, certain national sanctioning/governing bodies for youth football may instruct members to follow their state’s version of the rules of the National Federation Of State High School Associations.

There is a certain amount of built-in liability protection in following the safety rules outlined by state law and of the national sanctioning/governing bodies – as well as danger in not following them.

As for liability arising from cumulative CTE, a lot more scientific study needs to be Concussion researchperformed in this area. If there is a scientific basis for this concern, the impact on youth tackle football will hopefully be minimal due to the much smaller number of hits at lower forces as compared to high school, college, and the pros. An initial diagnosis of CTE can be made from brain imaging and a patient’s medical history. However, definitive proof of the severity of CTE currently requires a risky brain biopsy or autopsy. Therefore, the major liability concern for youth football at this time is from initial concussions and second-impact syndrome.

On the other hand, colleges and the pros (and to a lesser extent high schools) should worry more about liability arising from CTE since the number of helmet-to-helmet hits increase dramatically after youth football. CTE is what really scares the sports insurance industry due to the unknowns that could be uncovered from ongoing research and the possibility of class-action lawsuits due to the larger number of participants exposed to CTE compared to actual concussions. Also, CTE is much harder to address from a risk management point of view compared to initial concussions and second-impact syndrome injuries.

Are insurance premiums rising for youth tackle football General Liability insurance?

No, not at this time due to concussions. However, the rates are currently rising due to other reasons. The prices for General Liability insurance for tackle football is a function of the loss history from all sources (not just concussions), overall trends in commercial property & casualty insurance (currently rising slightly), and trends with the carriers that specialize in the sports niche. If claims payments from concussion lawsuits impact the loss history, rates will rise. So far, to the best of my knowledge, there is not a problem with concussion lawsuits in youth tackle football. But, that could always change.

What are the attitudes of the underwriters at the insurance carriers that write youth tackle football insurance?

The sports insurance industry is known for obsessing on a particular risk at any given time whether sex abuse or molestation, transportation of athletes, or dangerous cheer stunts. The concussion risk is the most recent and only time will tell if their fears are founded. And the result could be different for youth tackle football and high school versus college and the pros.

Some of the underwriters for carriers specializing in the youth sports niche are scared about what could happen if concussion lawsuits escalate with a series of large settlements or adverse jury verdicts or class actions. They point out that a youth participant can wait until the age of majority plus another two years for the statute of limitations to run before filing a lawsuit. This type of long tail exposure, along with all the recent media attention and the unknown results of yet-to-be-released scientific research, definitely raises concerns for sports insurance underwriters. Some have discussed wanting to place an aggregate cap on concussion-related lawsuits similar to the special aggregates that are often used for sex abuse and molestation lawsuits. Carriers definitely want to know what precautions are being taken in terms of risk management controls to limit the frequency and severity of injuries. They are also interested in coaching education and if it incorporates instruction on concussions. Once the legal landscape settles down, it will be easier to predict the effects on availability of liability insurance, exact coverages, prices, and required risk management controls.

Will pressure exerted by the insurance carriers (as opposed to angry parents and government legislation) force youth football organizations to take the concussion issue more seriously and to implement changes to safety standards?

It is hard to predict if concussion lawsuits will actually rise to a crisis level in the youth tackle football context. If so, lack of availability of General Liability coverage and premium increases will impact the behavior of sanctioning/governing bodies and local tackle football organizations.

However, I believe that the sanctioning/governing bodies are already moving to address concussion concerns and want to preserve the popularity of the sport and their participant base.

Where is the state of youth tackle football going from a liability/insurance perspective?

Helmet standardsThe youth football sanctioning/governing bodies and local organizations will likely attack the problem with the following strategies:

  • Request more scientific studies on larger numbers of participants on the forces that cause concussions in youth tackle football. These studies would be conducted both in the lab and in the field by engineers, doctors, and insurance carrier claim departments. Most of the existing studies are on the high school, college and pro level. Different dynamics are involved in youth tackle football including lower impact forces and decreased development of neck muscles that can absorb impact.
  • Continue to ramp up the concussion education of administrators, coaches, parents, and players on the dangers or concussions, warning signs from perspective of the injured player, warning signs from perspective of trainers, doctors, and coaches, mandatory removal from play when concussion is suspected. and return-to-play policies.
  • The use of baseline neuropsychological testing to compare to post-concussion event testing as a tool to determine appropriate return to play.
  • Policies and procedures to teach proper blocking and tackling techniques and to limit contact during practice.
  • Formal certification/training of coaches to educate on concussion issues.

The Athletic Participant Exclusion

Difficult to understand in context of special events or competitions

General Liability policies often include an Athletic or Sports Participants to exclude exposure for sports activities that may occur at special events for nonprofit associations and corporate picnics. However, the wording in this exclusion is unclear and can lead to surprising results when interpreted by claims departments and courts.

The exclusion states that the insurance policy does not cover “bodily injury to any person while practicing for or participating in any contest or exhibition of an athletic or sports nature sponsored by the named insured.” The two most common issues are determining whether a particular activity is an athletic or sports contest and what is meant by Athletic Participant Exclusion“practicing for or participating in.”

Unfortunately, most policy versions of this exclusion do not define these terms, and court decisions are all over the board in rulings. Here are examples of how various courts have ruled:

  •  A rodeo event where participants attempted to remove ribbons from a bull’s horn was found to qualify as a contest of an athletic or sports nature since the participants were engaged in physical activity for pleasure. The Oklahoma court instructed that the word “contest” means a competition or struggle for victory and “sports” is defined as physical activity engaged in for pleasure.
  • The Louisiana Supreme Court ruled that cheerleading activities during a football game did not constitute a sports contest since cheerleading was ancillary to the real sporting event – the football game.
  • A New Mexico court ruled that a jockey was not practicing for a horse race while exercising a racehorse. The court reasoned that “practicing” means the same act or acts required for success in the sport in question or at least so similar as to develop the particular capabilities and skills essential to success. Furthermore, the risks accompanying practice must be the same as those faced by a participant in an actual competition.
  • A Louisiana court ruled that a football team’s school-supervised, off-season weight-lifting program was not practicing football since practicing for football involved running of plays, passing, blocking, tackling, etc.
  • A Michigan court ruled that a referee was not a participant in a hockey game because a participant is “actively involved in the contest either individually or jointly with team members, but the referee has “an uninvolved role and is responsible for the application of the rules to the contest.”

Where the exclusion is present, what would the claims department of the insurance carrier or the courts decide in the event of an injury at a company sponsored fishing tournament? This question was recently posted to the Big I University faculty in their April, 2012 online publication. The faculty members were divided on the predicted outcome.

Based on the lack of definitions in the Athletic or Sports Participants Exclusion and the unpredictability of the above rulings, policyholders should always assume that the exclusion removes all coverage for anything similar to an athletic event or practice unless written clarification has been received from the underwriter or claims department of the carrier.

 Source: A Closer Look at Tricky Coverage Issues; Robert Redfearn, Jr.; Insurance Journal; Sept. 3, 2007

$4.4 Million settlement for Student Head Injury

Were warning signs ignored?

On September 14, 2007, while playing in a high school football game, Scott Eveland, suffered a serious head injury that caused bleeding inside his brain.  He now has to communicate using a keyboard and is confined to a wheelchair due to extensive brain damage.

It was alleged that head coach Chris Hauser ignored warning signs.  Scott had complained to the assistant trainer the week before the game that he was having headaches and had already missed some practices.  On the day of the injury, Scott requested to sit out the first quarter due to a headache, but the head coach denied his request.  A settlement of $4.4 million has now been agreed upon by the area school district in San Diego.

Jury verdicts of this nature will pressure General Liability carriers to increase rates or restrict coverage.  There has been an outcry from high school coaches and former players who are concerned that jury verdicts will end contact sports such as tackle football.  In my opinion, this risk will be better managed in the future by the use of better waiver/release agreements, education on concussions and warning signs, baseline cognitive testing and better helmet technology.

Concussions and the Future of Football

The potential socio-economic consequences of the concussion crisis

The concerns about head injuries and cognitive problems among football players of all ages continues to mount. Lawsuits continue to be filed by former NFL players andcollege and high school athletes suffering from concussion-related symptoms. Is it possible that the consequences of all this could one day mean the end of football?

There are plenty of doomsday scenarios that would have us think so:

  • Insurance companies may decide against insuring colleges and high schools against football-related lawsuits.
  • Coaches, team physicians, and referees would consider their financial exposure in such a litigious atmosphere.
  • Parents might keep their kids from playing football, and set off a domino effect with other parents.

This could result in the NFL lacking a feeder system and advertisers and networks shying away from the negative publicity. It might take 10 to 15 years, but it could happen under the following circumstances:

  • More players cFootball injuryommit suicide with autopsies revealing chronic traumatic encephalopathy (CTE).
  • A class-action lawsuit is filed.
  • The NFL changes it policies, but its later proven that less than concussion levels of constant head contact produce CTE.
  • New technology in helmets and pads fail to solve the problem.
  • High schools close their football programs, the Ivy League quits football, California stops participating and busts up the Pac-12. This is followed by the Big Ten and East Coast calling it quits, leaving football as a regional sport in the southeast and Texas/Oklahoma.
  • Advertisers drop like flies.

Hopefully, this doomsday vision will never materialize as youth football, high school, college, and pro organizations will recognize the threat and will be quick to implement:

  • Massive education programs for players, parents, and coaches on the symptoms of concussions, procedures for evaluating possible concussions, removal from play policies, return to play policies, etc.
  • Baseline neuro-psychological testing to compare against post-concussion testing
  • More studies on the effects of cumulative impacts or hits to the head that are not concussions
  • New helmet technology
  • Rule modifications to limit helmet-to-helmet contact

General Liability  insurance carriers that insure football organizations will be following these developments closely as they are concerned about the liability potential.

Source: “What Would the End of Football Look Like?”, Tyler Cohen and Kevin Arier, February 1, 2012.

S.C. Supreme Court Tosses Softball Suit

Rules softball is a contact sport with inherent risks

In March 2004, Jeff Wagner joined a father-son pickup softball game at a Boy Scout camping trip.  During the game Wagner and another father, David Cole collided, resulting in a broken rib for Wagner.  Cole suffered a head wound, went into convulsions, and then spent a few days in intensive care.  Personal distress and injuries led Cole and his son to sue the Boy Scouts and Wagner.

The South Carolina Supreme Court wrote in its opinion that despite Cole playing in a casual game in which teams weren’t even keeping score, he was still playing softball, which is considered a contact sport. In tossing out the claim, the court stated, “Where a person chooses to participate in a contact sport, whatever the level of play, he assumes the risks inherent in that sport.”

Source: Insurance Journal, 2011