Morrison Cohen Serves as Co-Counsel in Consequential NFL Insurance Coverage Appeal

On October 1, 2026, the New York Appellate Division, First Department, issued a significant decision in favor of the National Football League and NFL Properties LLC in a complex insurance coverage dispute arising from concussion-related claims brought by former professional football players. Morrison Cohen Partners David B. Saxe and Gayle Pollack provided strategic advice and counsel to the NFL’s lead appellate counsel, Covington & Burling, throughout the appeal.

The case, Discover Property & Casualty Co. et al. v. National Football League et al., concerns insurance coverage for a settlement resolving multidistrict litigation brought by former NFL players alleging that the NFL failed to protect players from the risks of concussions. The settlement, approved in 2015, provides compensation for former players suffering from certain qualifying neurological conditions, including ALS and chronic traumatic encephalopathy (CTE).

The Appellate Division’s decision addresses fundamental questions concerning how insurers and policyholders determine the scope and limits of coverage for claims arising from injuries occurring over extended periods of time. The Court held that the alleged injuries suffered by individual former players constitute separate occurrences under the applicable insurance policies. Rejecting an insurer’s argument that the injuries constituted a single occurrence, the Court explained that although the incidents shared certain 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.’”

The decision also has important implications for the application of policy limits in complex liability claims. In finding that a potential coverage cap did not apply, the Appellate Division also held that NFL football does not constitute a “product” under the policies’ products-completed operations hazard provisions. The Court held that the insurer’s argument that NFL football is an intangible product for purposes of PCOH coverage “strains the plain meaning, and obvious intent,” of the policy language. The Court also rejected insurers’ arguments concerning compensation by the NFL’s member clubs and the reasonableness of the underlying settlement. 

Morrison Cohen’s role reflects the firm’s experience providing strategic appellate counsel, including behind-the-scenes advice and substantive input in complex, high-stakes litigation. Saxe and Pollack worked closely with Covington throughout the appeal to advise the NFL on appellate strategy and the substantive insurance coverage issues presented.

The decision was covered in the Law360 article, “NFL Concussion Claims Constitute Separate Occurrences,” on October 1, 2026. Subscribers may read the article here.