There is something about home-field advantage. Maybe it’s the hometown fans there to cheer on their team, or maybe it’s the familiarity of the venue. Whatever it is, almost every team would rather play on their home turf. And this brings us to one of the bigger disputes associated with the NFL concussion lawsuits.
In August 2012, the NFL and its current and past insurance companies began posturing for their own home-field advantage of sorts to decide coverage issues in the concussion lawsuits brought by current and former players against the NFL.
Law 360 (registration required) is reporting that the insurance companies scored first when Los Angeles Superior Court Judge John Shepard Wiley Jr. sided with the insurers that the proper venue for deciding the coverage issues is New York and not California. The NFL immediately appealed, and for good reason. California provides a sort of home-field advantage to policy holders called “continuous trigger. In Montrose Chemical Corp. v. Admiral Ins. Co., 10 Cal. 4th 645, 913 P.2d 878 (Cal. 1995), the California Supreme Court upheld this principle which states if the potential of coverage to a third party arises under a policy, the insurer has a duty to defend.
This is good if you are the NFL and had 30+ different insurers going back nearly half a century with vague and different triggering events taking place for thousands of current and former players. This is why this judgment, if upheld on appeal, could be a serious blow to the NFL. The judge in California appears to have realized the California home-field advantage for the NFL. Law 360 points out that the judge noted that the NFL was suing in California for “tactical reasons” and this was “less significant” than the inconvenient forum argument put forth by the insurance companies. And it does not hurt that New York is friendlier to insurance companies. (Incidentally, the NFL is headquartered in New York as well). However, lest we call the game too early, we are still waiting for rulings in New York and the appeal in California. Needless to say, this contest for home-field advantage could still go either way.