Canadian Underwriter

Brain Trust: Insuring Concussions

October 28, 2014   by Ronan O'Beirne

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With so many leagues accused of not doing enough to prevent and monitor concussions—and with so many insurers saying that they don’t need to indemnify the leagues—it was only a matter of time before the industry started to consider concussion insurance.

On the medical side, teams have long sought insurance to cover their losses if a player is sidelined by injury, but nothing was concussion-specific. “I think that the sport insurance world is becoming more attuned to things like concussion studies… and they’re trying to do more prevention,” says Susan Ewart of Canadian Sports Insurance Brokers. CSIB is actually developing a concussion program: “That, definitely, is on our radar; it’s something that we’re working towards.”

So they’ve brought in Tyler Tisdale, a graduate of Brock University’s sports management program, to develop it. His concussion credentials are solid: two years ago, he authored a long paper about concussions, in which he noted the theory that the new breed of pro athlete is “simply too big, too strong and too fast to play a safe brand of contact sport, especially at the junior, collegiate and professional levels.”

He says the rise in concussions is “absolutely” a crisis. “Athletes—even if you just go see 14-year-old hockey players play, they’re so fast and big now. It’s unbelievable.” He adds that although most leagues and organizers are aware of the risks and have programs in place, concussions are “something that not a whole lot of insurance companies… have put a formal program in place [for] yet.”

Around the time that Tisdale was preparing his report, J.P. Jaillet, a Boston lawyer, was sounding the alarm on what the increase in concussions could mean for the insurance industry. “While the media is paying keen attention to lawsuits against the NFL and NCAA, the rise of concussion and brain injury claims related to youth sports may ultimately prove to be the greater risk both to potential defendants and to their insurers.”

Jaillet also foresaw, with Cassandra-like accuracy, the “variety of meritorious coverage defenses” that insurers would erect to get out of their duty to defend. Building on what some had already said in court filings while claiming they had no duty to indemnify the NFL, Jaillet wrote that insurers could claim that the injuries fell outside the coverage period.

More striking, though, are the potential arguments that revolve around what is and isn’t covered. If a league or other organization “knew that the plaintiff would almost certainly suffer additional concussions if he continued to play football, there is no coverage based on the ‘expected or intended injury’ exclusion.” Similarly, an insurer might not provide coverage because the underlying tort— forcing or allowing a young person to play a violent sport, knowing that he or she could get hurt—“was not caused by an occurrence, which typically is defined in common general liability terms as ‘an accident.’”

Until the strength of these defenses is tested—actions by insurers against insureds are still working their way through various courts in the States—brokers and insurers cannot know for sure if concussion liability is a legitimate concern. But there is more than a financial imperative here, which is why most high-risk sports organizations now have robust concussion prevention and monitoring guidelines. Rugby Canada posts the International Rugby Board’s concussion guidelines on its website; Football Canada has the “ThinkFirst” education and awareness campaign; Hockey Canada has a host of guidelines on its website and even has a mobile app, dubbed “Head Smart.” The app includes recommendations on prevention, a list of symptoms and a tool to find the nearest hospital.

Copyright 2014 Rogers Publishing Ltd. This article first appeared in the October 2014 edition of Canadian Insurance Top Broker magazine

This story was originally published by Canadian Insurance Top Broker.