A federal judge from the Eastern District of Louisiana has ruled that the “express exclusions” in a policy issued by Federal Insurance Company (Federal) preclude any recovery associated with a football player’s bodily injury and breach of contract claims associated with the concussions he suffered during his playing career.
By way of background, plaintiff Lorenzo Breland alleged that he “initially” sustained a concussion while playing for the Tulsa Talons in 2011, which is also a part of the Arena Football League (AFO).
After the team doctor diagnosed Breland, he alleged the team encouraged him to return and he started the following game. Subsequently, he played for the New Orleans Voodoo. The plaintiff alleged that he sustained a severe blow to the head during a game on April 11, 2014, which caused a second concussion. Breland claimed that, after the 2014 incident, he received inadequate medical attention and care and was pressured to return to playing football before he was fully rehabilitated. He alleged that, after complaining to the coach about his continued health problems, he was sent to a speech pathologist. The plaintiff alleged that this head injury caused him to remain bedridden for six weeks, and that he was ultimately suspended from the league and cut from the New Orleans Voodoo team. Breland claimed that the second concussion ended his career, and the defendants did not pay for his ongoing medical care or rehabilitation to allow him to return to play in a healthy manner. The plaintiff alleged that he continues to suffer long-term problems, including dizziness, memory loss, headaches, weight loss, neck aches and fatigue, and that he faces an increased risk for future disorders as a result of the injuries.
As part of his lawsuit, he asked for damages, past and future medical expenses related to the concussions, and medical monitoring to facilitate the diagnosis and treatment of future disorders caused by the injuries. The plaintiff claimed that the league knew of the potential risks associated with head trauma, but intentionally concealed them. Further, the league “fostered an environment of brutality and violence and ignored the wellbeing of its players for the sake of profit.” The plaintiff further alleged that the defendants breached their duties by failing to take appropriate steps to prevent or mitigate the potential for injury, avoiding such steps due to the expense and impact on league profitability. In addition, he claimed that the defendants falsely represented to him that he would receive excellent medical care, which they failed to provide. Finally, Breland alleged that the league players’ collective bargaining agreement created an obligation that the defendants pay all medical expenses resulting from any injury sustained while playing in a game, but that the defendants “have acted in bad faith and refused to pay any expenses incurred as a result of the plaintiff’s second 2014 concussion.”
In addition to the relief he sought from the league and associated entities, he also sought “an injunction and/or equitable relief against National Casualty Company (National) and Federal, holding that the insurance policy provided coverage for the plaintiff’s injuries and claims and holding National and Federal in bad faith under La. R.S. §§22:1892 and 22:1973.” Specifically, Breland sought “all forms of insurance penalties, bad faith damages, general damages, and attorneys’ fees permitted under the aforementioned statutes if Federal or National decline coverage.”
Federal moved to dismiss the lawsuit, pursuant to Federal Rule of Civil Procedure 12(b)6, or a failure to state a claim. It argues that there is no coverage under a Commercial General Liability (CGL) policy, or any other insurance policy issued by Federal for the plaintiff’s allegations of bodily injury and breach of contract against AFO.”
The court agreed.
“Federal (argued) that the policy period for the most recent CGL policy issued by Federal to AFO was March 7, 1999 to March 7, 2000. The CGL policy is an ‘occurrence-based policy,’ which limits coverage to injuries that occurred within the policy period. The plaintiff’s alleged injury occurred, at the earliest, in 2010 which is outside the policy period.” Breland cannot recover under the CGL policy Issued by Federal.
The Directors and Officers liability policy (D&O) was inapplicable for another reason.
It “contained express exclusions for bodily injury and breach of contract claims.
“… While the D&O Policy covers wrongful acts, it also contains certain exclusions, including for bodily injury and breach of contract,” wrote the court. “Plaintiff’s claim is undoubtable a bodily injury claim and is therefore not covered under the D&O Policy issued to AFO by Federal.”
The court was also unpersuaded by the plaintiff’s contention that “excluding bodily injury claims in a D&O Policy to a football league is against public policy. He provides no legal support for this claim,” wrote the court.
“Further, it is not as though AFO has no insurance coverage for bodily injury claims. Those claims are typically covered under CGL policies, which were issued by a separate insurer at the time of the plaintiff’s injury. While the court will not address the applicability of that coverage in this order, it is relevant that such a policy does exist, and (the league) did have insurance coverage for bodily injury claims. The D&O Policy is simply not intended for that purpose. See Quinlan v. Liberty Bank & Trust Co., 575 So. 2d 336, 341 (La. 1990).”
Lorenzo Breland v. Arena Football One, LLC., et al.; E.D. La.; CIVIL ACTION NO. 15-2258 SECTION “L”, 2016 U.S. Dist. LEXIS 159886; 11/ 17/16
Attorneys of Record: (plaintiff) Galen M. Hair, LEAD ATTORNEY, Andrew K. Jacoby, Varadi, Hair & Checki, LLC, New Orleans, LA; Joseph F. LaHatte, III, LEAD ATTORNEY, LaHatte Law Firm, LLC, Metairie, LA; Michael S. Brandner, Jr., Brandner Law Firm, LLC, New Orleans, LA. (for defendant/cross claimant Arena Football One, LLC) Charles J. Duhe, Jr., LEAD ATTORNEY, Taylor, Wellons, Politz & Duhe, APLC (Baton Rouge), Baton Rouge, LA; Jason D. Bone, Paul J. Politz, Taylor, Wellons, Politz & Duhe, APLC (New Orleans), New Orleans, LA. (For defendant National Casualty Company and Federal Insurance Company) John Powers Wolff, III, LEAD ATTORNEY, Keogh, Cox & Wilson Ltd, Baton Rouge, LA. Steven W. Usdin, LEAD ATTORNEY, John W. Joyce, Laurence D. LeSueur, Jr., Barrasso, Usdin, Kupperman, Freeman & Sarver, LLC, New Orleans, LA.
