San Francisco 49ers running back Reggie Bush reportedly intends to sue the city of St. Louis after slipping on a concrete surface behind the St. Louis Rams’ bench during a recent game, injuring his knee and ending his season. If a lawsuit is brought, St. Louis (which owns the Rams’ stadium where the injury occurred) likely will look to its liability insurer to pay for its defense and for any damages awarded to Bush at trial. While the insurer may dispute St. Louis’s claim, the city has a strong argument for coverage, and stadium owners across the world—who have a duty of care to the hundreds of multi-millionaire professional athletes who compete on their fields and pitches—will be watching closely to see if the insurance company fumbles the claim.
Earlier this year, Bush signed a one-year, $2.5 million contract with the 49ers. In his 10th year, the 30-year-old is at the tail-end of his career, but a strong season with the 49ers potentially could have put him in contention for another big free-agency contract. For example, in March of this year, then-31-year-old running back Frank Gore signed a three-year, $12 million contract with the Indianapolis Colts, which includes $6.5 million guaranteed and an average annual salary of $4 million, according to spotrack.com. While Gore has been a more productive carrier running the ball compared with Bush, an outstanding season in San Francisco could have put Bush in the conversation for a similar contract.
Bush is likely to seek as damages his projected lost income under a new contract, pain and suffering, and even punitive damages. As part of his case, Bush may argue St. Louis was on notice of the danger posed by the concrete surface—one week earlier, Cleveland Browns’ quarterback Josh McCown slipped in the same area and had to leave the game. Bush thus may claim that St. Louis acted “willfully and intentionally” in allowing the concrete surface to stay in place for the 49ers’ game.
St. Louis may respond that, by agreeing to take the field that Sunday, Bush “assumed the risk” inherent in playing football. In fact, St. Louis may turn Bush’s argument against him and assert that Bush himself assumed the risk of slipping on the concrete if he was aware of McCown’s injury. Under Missouri law, however, the risks assumed in sports activities are created by the nature of the sport. Sheppard by Wilson v. Midway R-1 Sch. Dist., 904 S.W.2d 257, 262 (Mo. Ct. App. 1995). The risk of a baserunner being hit by a baseball, for example, is a risk inherent to the game of baseball. Id. In this case, however, Bush may argue that the slippery concrete area is not “inherent to the game” of football, but an additional, unnecessary risk created “willfully and intentionally” by the city.
Such allegations could invite St. Louis’s insurer to argue that this type of claim is not what it intended to cover when it issued the policy, and that it is excluded. The reason: almost all liability policies exclude coverage for injuries that are “expected or intended” by the insured. But this should be a losing argument. Under Missouri law (which likely applies to the policy), when determining whether the exclusion applies, courts must focus on the results rather than the causes. Am. Family Mut. Ins. Co. v. Pacchetti, 808 S.W.2d 369, 372 (Mo. 1991). “Expected or intended” as used in a liability policy thus means that the policyholder “deliberately and consciously” intended the injuries to occur. Id. Here, it is almost certain that the insurer will not find any evidence that the city actually intended Bush’s injuries to occur.
The best news for St. Louis: Missouri law appears to permit insurance coverage for punitive damages. Punitive damages directly levied against a defendant are insurable in Missouri where the policy specifically provides for such coverage. See Colson v. Lloyd’s of London, 435 S.W.2d 42 (Mo. Ct. App. 1968) (policy that provided coverage for all losses imposed by law covered punitive damages); New Madrid County Reorganized School District No. 1 v. Continental Cas. Co., 904 F.2d 1236 (8th Cir. 1990) (explicitly insuring “wrongful acts” covered punitive damages). Depending on the language of its policy, and the relevant law that applies, the city could be covered for a big award of punitive damages in Bush’s favor.
Other sports stadium owners should prepare for potential claims by athletes and negotiate the most favorable policy language possible to obtain similar coverage. Like St. Louis in this case, they should consider whether they can seek defense and indemnification for claims from third parties, such as key vendors, who may have been involved in the incident. Owners also may be entitled to obtain insurance from a vendor’s insurance policy, if the vendor is required to make the owner an additional insured on its own policies.