Can a payout under a liability policy be avoided by proof that the plaintiff assumed the risk of injury or executed a release of liability, or that there was no coverage for concussion injury or the type of negligent act that caused the concussion injury? Alternatively, can the insurer challenge the level of damages to limit the amount of the payout?


The insurer should examine the policy coverage and investigate the circumstances of the multiple concussion injury and the level of damages to the plaintiff. Also, the insurer should consider whether the plaintiff assumed the risk of injury or executed a release of liability.


An insurer may attempt to challenge whether coverage existed under the policy terms for a concussion injury. In Weeks v. Marine, Inc. v. American Steamship Owners Mut. Protection and Indem. Ass’n Inc., 2011 WL 376331 (S.D.N.Y. Aug 25, 2011) (not designated for publication), the insurance company argued – unsuccessfully – that a concussion suffered by the insured’s employee did not fall within the policy’s coverage of “brain or spinal cord injury” and that the term “brain injury” was ambiguous. The court found that none of the evidence submitted raised serious questions as to whether a concussion was an injury to the brain.


Under some circumstances, even when a serious head injury with provable damages has occurred, affirmative defenses may protect the defendant. The defense of contributory negligence, in jurisdictions that still recognize it, may bar a plaintiff from recovering any damages. A defense of comparative negligence may reduce the amount of damages that the defendant – and the defendant’s insurer – may have to pay. The doctrine of assumption of the risk also can preclude a plaintiff’s recovery for any injury attributable to the risk assumed. See generally: Am Jur. 2d, Negligence §§759 to 1095.


When claiming assumption of the risk as a defense, the defendant must show that the injured party was more than just careless. An intentional, voluntary, and deliberate decision by the plaintiff to expose him or herself to a specific danger that the plaintiff knew and fully understood is required to relieve the defendant of liability for a resulting injury to the plaintiff. See: Am Jur. 2d, Negligence §765.


For the insurer to be successful in litigation involving a multiple concussion injury under the doctrine of assumption of risk, proof must be presented that:


  • The plaintiff knew of the danger of the activity
  • The plaintiff both understood and appreciated the specific risks associated with the danger
  • The plaintiff voluntarily undertook exposure to those risks


Recovery for a concussion injury may also be barred if the injured party executed a release of liability before the injury occurred. A release is considered a contract, and thus its validity and scope is governed by principles of contract law. See: Am. Jur. 2d, Release §7.


For the insurer to be successful in litigation involving a multiple concussion injury based on the plaintiff’s execution of a release, proof must be presented that:


  • The plaintiff voluntarily entered into the release
  • The plaintiff had legal capacity to execute the release
  • The terms of the release were specific and definite enough to permit the nature and extent of the parties’ obligations under the release to be determined
  • The release did not violate public policy


See: Am. Jur. 2d, Release §§1 to 52.


Another strategy for an insurer to adopt in litigation involving multiple concussion injury, Second Impact Syndrome, or chronic traumatic encephalopathy (CTE), is to challenge the cause or level of damages. This approach may offer the insurer the opportunity to avoid or limit the amount of benefits payable under the defendant’s insurance policy.


The defense of comparative negligence may reduce the percentage of the total damages for which the defendant is liable. Another alternative may be to challenge the overall amount of the plaintiff’s damages attributable to the injury being litigated. Damages after a traumatic brain injury can be challenged as resulting from pre-existing conditions rather than being caused by the injury that is the subject of a negligence action or other personal injury action. See: Traumatic Brain Injuries, 72 Proof of Facts 3d 363 §20. When a pedestrian was struck by a delivery service truck, the court determined that the issue of whether the victim’s post-accident brain defects were caused by the accident – rather than pre-existing alcohol abuse, depression, and attention deficit disorder – was a question for the jury to decide. Roness v. Federal Express Corp., 284 A.D.2d 208 (N.Y.A.D. 1 Dept. Jun 19, 2001).


Malingering, the concept that a person’s symptoms are deliberately invented or exaggerated and are motivated by gain, can be a possible defense to a claim for disability benefits, or a factor to be considered in determining the appropriate level of benefits payable. See: 2 Attorneys Medical Advisor, Malingering §§22:93. It can be very difficult, however, to prove malingering in cases of head injury. See: 5 Attorneys Medical Advisor §36:70, Concussion—Post-concussion syndrome (PCS)—Malingering and its detection; Frank R. Sparadeo, Malingering Tests: What They Are, What They Are Not, 2 Ann.2004 ATLA-CLE 2313 (2004).


For the insurer to successfully avoid or limit insurance benefits payable under the defendant’s policy for a multiple concussion injury, proof must be presented that:


  • The plaintiff’s medical history indicates prior injuries, mental health treatment, drug or alcohol abuse, academic problems, employment difficulties, or pre-existing conditions
  • The plaintiff’s own actions or failures contributed to his or her injuries
  • The plaintiff’s subjective symptoms of multiple concussion injury can be discredited by demonstrating the plaintiff was able to work and carry on daily life activities
  • The plaintiff assumed the risk of the activity causing the injury


See Practice the Techniques - Checklists providing an example fact checklist tending to show liability for multiple concussion injuries.