Discover Prop. & Cas. Co. v. National Football League

Discover Prop. & Cas. Co. v National Football League 2026 NY Slip Op 05595 October 1, 2026 Appellate Division, First Department Pitt-Burke, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Discover Property & Casualty Company, et al., Plaintiffs, v National Football League, et al., Defendants-Appellants-Respondents, Alterra America Insurance Company, et al., Defendants, TIG Insurance Company, et al., Defendants-Respondents-Appellants. Discover Property & Casualty Company, et al., Plaintiffs, v National Football League, et al., Defendants-Respondents-Appellants, Alterra America Insurance Company, et al., Defendants, TIG Insurance Company, et al., Defendants-Appellants-Respondents. Supreme Court, Appellate Division, First Judicial Department Decided and Entered: October 01, 2026 Index No. 652933/12|Appeal No. 6004-6005|Case No. 2025-03691 2025-03200| Peter H. Moulton Bahaati E. Pitt-Burke Kelly O'Neill Levy Marsha D. Michael Margaret A. Chan Covington & Burling LLP, New York (ClÉa P.M. Liquard and John E. Hall of counsel), and Covington & Burling LLP, Washington, DC (Mitchell F. Dolin of the bar of the District of Columbia, admitted pro hac vice, of counsel and Jad H. Khazem of the bar of the District of Columbia, admitted pro hac vice, of counsel), and Morrison Cohen LLP, New York (David B. Saxe and Gayle Pollack of counsel), for National Football League and NFL Properties LLC, appellants-respondents/respondents-appellants. Coughlin Midlige & Garland LLP, New York (Robert W. Muilenburg and Patrick K. Coughlin of counsel), for the American Guarantee and Liability Insurance Company, appellant-respondent/respondent-appellant. O'Melveny & Myers LLP, Washington, DC (Jonathan D. Hacker, of the bar of the District of Columbia, admitted pro hac vice, of counsel), and Kennedys CMK LLP, New York (Christopher R. Carroll, Heather E. Simpson, Elaine Whiteman Klinger, Mark F. Hamilton and Joshua S. Wirtshafter of counsel), for TIG Insurance Company and The North River Insurance Company, and United States Fire Insurance Company, respondents-appellants/appellants-respondents. Certain defendants appeal and cross-appeal from an order of the Supreme Court, New York County (Andrea Masley, J.), entered October 17, 2023, which to the extent appealed from, denied America Guarantee and Liability Insurance Companies (AGLIC's) motion for summary judgment dismissing the cross-claims by defendants National Football League and NFL Properties LLC for declaratory relief pursuant to the AGLIC excess liability policy for 2001-2002; found that NFL football constituted a "product" under the Products Completed Operations Hazard (PCOH) as defined in an Insurance Policy and implicitly determined that the PCOH aggregate limits may be applicable; and found that the underlying personal injury claims arose from multiple occurrences. Defendants separately appeal and cross-appeal from second order of the same court and Justice, entered April 22, 2025, which denied the NFL's and TIG Insurance Company's motions for summary judgment. Pitt-Burke, J. [*1] In 2014, the National Football League (NFL) and NFL Properties LLC (NFLP) (together, NFL) entered a class action settlement in a federal multidistrict litigation (MDL) to resolve lawsuits brought by former players who alleged that the NFL failed to inform them of and protect them from the risks of concussions in football. The federal actions garnered much attention due to the parties involved and litigation that ensued. However, the principal issue here is clear—is the NFL entitled to insurance coverage for the MDL settlement? While this question seems straightforward, the complexity of this coverage action stems from the former players' neurodegenerative injuries, which are alleged to be a result of the continuous exposure to head impacts, and the evidence required to prove that the onset of these injuries occurred during the relevant policy periods. Like many coverage actions, our determinations are further complicated by the actions of the parties that remain—TIG Insurance Company, North River Insurance Company, and U.S. Fire Insurance Company (collectively, TIG),FN1 and American Guarantee and Liability Insurance Company (AGLIC).FN2 Therefore, we must not only closely consider the language and limits of the policies in place but also whether TIG's actions constituted a repudiation or disclaimer of coverage, and thus, whether the NFL was obligated to comply with the policies' contractual provisions in settling the MDL. Separately, we are tasked with reviewing the record to determine whether the MDL settlement was reasonable; whether the NFL has shown the injuries sustained as a result of the continuous exposure constitute multiple occurrences under the policies; and if so, whether AGLIC's fifth layer excess policy could be triggered under the terms of the settlement. Although these issues are intertwined, they are before this Court as two separate appeal sequences, the appeal of Supreme Court's April 22, 2025 order, and the appeal of Supreme Court's October 17, 2023 order, denying the parties' respective motions and cross-motions for summary judgment. This sequencing was approved by this Court based on the "shifting alignments" of the parties concerning the issues appealed, not the chronology of the underlying decisions. We now modify Supreme Court's decisions and address each determination in the order in which the underlying decision was made. Factual Background To fully understand the issues before this Court, it is important to first outline the timeline of events and the claims settled in the MDL. [*2] On July 19, 2011, 73 former NFL players and families sued the NFL in California state court claiming that it "failed to take reasonable actions to protect players from the chronic risks created by concussive and sub-concussive head injuries and fraudulently concealed those risks from players" (see Matter of National Football League Players' Concussion Injury Litig., 307 FRD 351, 361 [ED Pa 2015], affd 821 F3d 410 [3d Cir 2016], cert denied 580 US 1030 [2016] [certifying class and approving settlement in consolidated action] [hereinafter NFL Concussion Litig.]). Shortly thereafter, three more cases were filed, two in California state court and one in federal court in Pennsylvania (id.). The cases were consolidated in federal court as the MDL, and in total approximately 5,000 players filed "over 300 substantially similar lawsuits" (id.). On August 5 and 6, 2011, approximately two weeks after the 2011 suit was filed, the NFL tendered written notice to AGLIC and TIG, advising them of the head-injury litigation. On January 11, 2012, TIG advised the NFL that it would defend them in the various lawsuits subject to a reservation of rights and disclaimer of coverage. In May 2012, the NFL, its insurers, and the players' counsel began informal negotiations in the MDL. On August 7, 2012, TIG advised the NFL that it would pay 24.63% of defense costs while "expect[ing] to have the opportunity to work closely with the NFL . . . with respect to the on-going defense strategy and any resolution efforts," including "upcoming briefing . . . retention of experts and other litigation vendors, and meetings with defense counsel to discuss resolution scenarios and . . . overall litigation strategy." Of the insurers that remain in this action, TIG has been steadfast in its decision not to consent to settlement. As early as October 2012, TIG asserted that the NFL was not providing it with the information needed to understand the strengths of the NFL's position in the MDL so it could "effectively participate" in settlement efforts. TIG demanded access to the privileged work product between the NFL and its defense counsel, arguing that the "NFL's attorney-client communications" were subject to "free exchange with the Insurers" and that withholding such information was a violation of the "cooperation clauses" within the insurance policies. In July 2013, and after the NFL moved to dismiss the MDL, the MDL court directed mediation. In that same month, TIG withheld consent to a proposed $300 million counteroffer of settlement. TIG's basis for withholding consent was that the NFL failed to provide the information it requested and that it needed "access to the defense files" of NFL's counsel. [*3] As settlement negotiations progressed, communications between the NFL and its insurers continued, with consent for settlement being sought on multiple occasions. Between August 1 and August 13, 2013, TIG refused to consent to the NFL's proposed counteroffers in the amount of $450 million and $700 million respectively, based on the NFL's alleged failure to provide information and TIG's objections to certain provisions. On August 28, 2013, TIG again indicated that it could not consent to or "bless and support" the proposed settlement being negotiated by the parties. Thereafter, and at the conclusion of two months of mediation, the parties in the MDL reached a proposed settlement that provided a capped monetary award fund of $675 million and other relief. In January 2014, the MDL court denied the proposed settlement due to its concern that the capped compensation fund would be exhausted before the term of the settlement expired. After the MDL court's denial, mediation continued under the supervision of a court-appointed special master. In June 2014, the parties agreed to an uncapped monetary settlement fund, but as relevant here, retained caps on individual awards. In April 2015, the MDL court granted final approval of the class settlement and the settlement became effective in January 2017, after an appeal to the US Court of Appeals for the Third Circuit. As relevant here, the settlement was composed of three main components:FN3 (1) a $75 million baseline assessment program to pay for neurological functioning exams and supplemental benefits;FN4 (2) a $10 million education fund to instruct football players about injury prevention; and (3) an uncapped monetary award fund to compensate former players for six "qualifying diagnoses" (including chronic traumatic encephalopathy [CTE], amyotrophic lateral sclerosis [ALS], Parkinson's Disease, Alzheimer's Disease, and certain forms of dementia) over a 65-year period (see NFL Concussion Litig., 307 FRD at 365-367, 395).FN5 Importantly, each player with a qualifying diagnosis was entitled to a maximum award of between $1.5 million and $5 million, depending on the diagnosis level,FN6 and subject to offsets.FN7 In exchange for settlement, class members released all claims and actions against the NFL " 'arising out of, or relating to, head, brain and/or cognitive injury, as well as any injuries arising out of, or relating to, concussions and/or sub-concussive events,' including claims relating to CTE" (NFL Concussion Litig., 307 FRD at 369). The MDL settlement also required claimants who opposed the settlement to opt out. While 92 claimants opted out of the settlement, based on the record before this Court, none of their settlements have exceeded $51 million. This Action [*4] In August 2012, prior to the MDL settlement, insurers Alterra America Insurance Company and Discover Property & Casualty Company et al. commenced declaratory judgment actions against the NFL, TIG, AGLIC, and several other insurance companies, seeking a declaration as to the rights and coverage obligations of the insurers concerning the MDL. In that same month, TIG answered and asserted cross-claims. In September 2012, AGLIC filed an answer. AGLIC's Motion for Summary Judgment In September 2021, AGLIC moved for summary judgment dismissing the NFL's cross-claims for a declaratory judgment, arguing that its excess policy could not be triggered because each individual player's alleged injury constituted at least one separate "occurrence" under the 2001-2002 TIG primary policy; that these occurrences did not reach the $51 million liability threshold required to trigger AGLIC's policy; and that TIG's policies (and other layers) will not be exhausted because the concussion claims do not "fall within" the Products Completed Operations Hazard (PCOH) definition and therefore the PCOH aggregate limit does not apply. In opposition to AGLIC's motion, TIG conceded that the underlying policies FN8 did not have a general aggregate limit. However, it argued that the TIG primary policy's $1 million PCOH aggregate limit applies even if there are multiple occurrences and even if bodily contact in football is considered an accident, as that term is defined in the policies. The NFL filed a response supporting AGLIC's position. By order entered October 17, 2023, Supreme Court denied AGLIC's motion. In its order, the court limited its findings to whether AGLIC had the duty to indemnify the NFL in the MDL settlement and declined to determine, as TIG sought, whether the impacts causing any player injuries qualified as "accidents" under the policies. In making its determination, however, the court rejected TIG's contention that all player injuries constituted a single occurrence arising out of the NFL's "concealment and misrepresentations of the alleged risks of football." Instead, the court found that the "operative incidents" were "the repeated head impacts leading to each Players' injuries, which constitute multiple occurrences," and that "the impacts [we]re spatially and temporally distinct," given the decades over which players played about 10,000 games for different teams and lengths of time in about 90 different stadiums. The court also held that it could not determine whether the TIG policies' PCOH aggregate limit applied because the parties' arguments did not address the application of the limit. In reaching its determination, the court declined to apply the TIG policies' definition of "your product" to NFL football. Instead, the court relied on a "common speech" understanding of the term "product," finding that it could include "intangible items" such as NFL football. Subsequent Motions for Summary Judgment [*5] In September 2023, while AGLIC's 2021 motion remained pending, the parties filed respective motions for summary judgment. As relevant, the NFL moved for partial summary judgment against TIG and AGLIC declaring that "any reasonableness-of-settlement defenses to coverage fail" and dismissing any such defenses asserted by TIG and AGLIC; declaring that TIG denied coverage, thereby releasing the NFL from the requirement to obtain TIG's consent to settlement; declaring that the players' "causation allegations . . . are assumed" and each one's injuries occurred "from the date of first NFL play" through death or the filing of a head injury lawsuit; declaring that the claimed injuries were an "occurrence" that was not "expected or intended"; declaring that each claim by an individual player was "at least one separate 'occurrence' "; declaring that the underlying head injury claims were not subject to any aggregate limits applicable only to "products-completed operations" under TIG's policies; and declaring that TIG was required to pay for bodily injury occurring "during and continu[ing] after" the 2000-2002 policy periods. Before opposition was filed in response to the NFL's summary judgment motion, Supreme Court issued its October 17, 2023 decision denying AGLIC's motion for summary judgment. In light of the court's decision, the NFL argued that even if NFL football were considered a "product," the PCOH would still not apply and asked the court to apply its "number of occurrences" holding to all of the policies at issue. AGLIC, for its part, joined the NFL's motion for partial summary judgment and, as expressly relevant here, asserted that the players' claims fell within Coverage D, which was subject to only a general aggregate limit. TIG opposed the motion, acknowledging that Supreme Court's decision on the "number of occurrences" issue was law of the case but noting that the same was also true regarding the "product" issue. AGLIC and TIG also moved jointly for summary judgment seeking declarations that the NFL did not suffer an insurable loss because it was fully compensated by its 32 Clubs and that the insurers owed no duty to indemnify the NFL. TIG also moved for summary judgment based on the NFL's failure to obtain consent prior to settlement. By order entered April 22, 2025, Supreme Court denied the parties' respective summary judgment motions. Notices of Entry for Supreme Court's October 17, 2023 and April 22, 2025 orders were served on May 15, 2025, and these appeals ensued. We now modify Supreme Court's October 17, 2023 and April 22, 2025 orders. Discussion [*6] It is well settled that "[a]n insurance policy is a contract between the insurer and the insured" (Bovis Lend Lease LMB, Inc. v Great Am. Ins. Co., 53 AD3d 140, 145 [1st Dept 2008]). Therefore, in declaratory actions, we are guided by the rules of contract interpretation and must determine the rights or obligations of the parties based on the specific language in the policy (see State of New York v Home Indem. Co., 66 NY2d 669, 671 [1985]; Westchester Fire Ins. Co. v Schorsch, 186 AD3d 132, 140 [1st Dept 2020]). "The fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties' intent" (Donohue v Cuomo, 38 NY3d 1, 12 [2022] [internal quotation marks omitted]). Courts must be cognizant of the "subject matter that is being insured and the purpose of the entire contract" (Westchester Fire Ins. Co., 186 AD3d at 140) to ensure that the policy is construed in a manner that gives full force and effect to the language therein, and does not render any provision meaningless (see County of Columbia v Continental Ins. Co., 83 NY2d 618, 628 [1994]). We must also refrain from interpreting provisions in a way that adds, removes, or distorts the meaning of any words or phrases and it is crucial that we do not afford the policy a construction contrary to its express terms (see Broad St., LLC v Gulf Ins. Co., 37 AD3d 126, 131 [1st Dept 2006]). To ensure that policies are construed in this manner, endorsements and the policy must be read together, such that "the words of the policy remain in full force and effect except as altered by the words of the endorsement[s]" (Continental Ins. Co., 83 NY2d at 628). We first look to the language contained within the TIG primary policies.FN9 Under Coverage A, "Bodily Injury and Property Damage Liability," the TIG primary policies provide that TIG "will pay those sums that the insured becomes legally obligated to pay as damages because of 'bodily injury' or 'property damage' to which this insurance applies." "Bodily injury" as defined under the policies encompasses "bodily injury, sickness, or disease sustained by a person, including death resulting from any of these at any time." The TIG primary policies further provide that insurance coverage applies only if the bodily injury is "caused by an 'occurrence' that takes place in the 'coverage territory' . . . during the policy period. FN10 An "occurrence" is defined as "an accident including continuous or repeated exposure to substantially the same general harmful conditions."FN11 Coverage under the TIG primary policies is also subject to exclusions. Under the exclusions, the TIG primary policies do not apply to " '[b]odily injury' . . . expected or intended from the standpoint of the insured."FN12 The TIG primary policies issued from 2000-2002 further contemplate that TIG would "have no duty to defend the insured against any 'suit' seeking damages for 'bodily injury' . . . to which this insurance does not apply." [*7] The 2001-2002 TIG primary policy also provides PCOH coverage with an aggregate limit of $1 million.FN13 This aggregate limit represents the "most" TIG would "pay under Coverage A for damages because of 'bodily injury' and 'property damage' included in the 'products-completed operations hazard' " [emphasis added]. As relevant here, the PCOH applied to a limited category of claims of bodily injury "occurring away from premises [the insured] own[ed] or rent[ed]" which arose from " 'your product' or 'your work' except [p]roducts that are still in [the insured's] physical possession, or . . . [w]ork that has not yet been completed or abandoned." "Your product," as defined in the policy, includes "[a]ny goods or products, other than real property, manufactured, sold, handled, distributed or disposed of by" the insured, others trading under the insured's name, and "[c]ontainers (other than vehicles), materials, parts or equipment furnished in connection with such goods or products."FN14 The 2001-2002 TIG primary policy also contains a "Participants Endorsement" that amended the policy to add Coverage D, "Liability to 'Participants.' " Under Coverage D, TIG agreed to "pay those sums that the insured becomes legally obligated to pay as damages because of 'bodily injury' to any 'participant' " subject to the limits of insurance. "Participants," as defined in the endorsement, included players. The AGLIC policy was issued as a fifth layer excess insurance policy from November 20, 2001 to November 20, 2002, and applied to liabilities in "excess of $51 million per occurrence in underlying limits." The policy applied to the same damages "covered by the Controlling Underlying Policy," i.e., the TIG primary policy,FN15 and used the same definitions, limitations, and exclusions. October 17, 2023 Order Whether Supreme Court properly denied AGLIC summary judgment depends on whether the court was correct in declining to consider AGLIC's Coverage D argument and whether the court correctly decided that it could not determine whether and how the PCOH aggregate limit applies. Although competing assertions, they are subject to the same threshold considerations. We must first examine whether Supreme Court's determination that each player's alleged injuries are to be treated as a separate occurrence and its finding that NFL football falls within the definition of "your product" under the TIG primary policy, were correct. These determinations form the basis of Supreme Court's October 2023 holding and the parties' arguments on appeal as to why the court's decision was ultimately incorrect. [*8] Normally, when "[a]n insured seek[s] to recover for a loss under an insurance policy" we are first concerned with whether it has proven "that a loss occurred" and "that the loss was a covered event within the terms of the policy" (Consolidated Rest. Operations, Inc. v Westport Ins. Corp., 205 AD3d 76, 80 [1st Dept 2022], affd 41 NY3d 415 [2024] [internal quotation marks omitted]). In the appeal from the October 2023 order, however, the NFL is largely aligned with the positions advanced by AGLIC and opposed to those set forth by TIG. AGLIC's argument on appeal rests on its assertion that its fifth layer excess policy does not provide coverage because the NFL's concussion settlements can never reach the AGLIC layer of coverage. Specifically, AGLIC argues that Supreme Court correctly determined that each player's alleged injuries should be treated as a separate occurrence. AGLIC contends, however, that the court made an incorrect finding as to the definition of "your product" under the TIG primary policy and incorrectly found that a determination could not be made as to whether and how the PCOH aggregate limit applies. Although Supreme Court denied AGLIC's motion, TIG also appeals the court's decision on the basis that its determination implicates TIG's interests in this action. Namely, TIG contends that the court correctly found that NFL football is a "product" within the meaning of the PCOH but erred in failing to apply the PCOH aggregate limits to cap TIG's potential coverage obligations under each policy with such a limit. As to AGLIC's argument that the claims fall within Coverage D, TIG contends that AGLIC failed to preserve this argument below and that it should not be considered on appeal. We disagree with TIG's contentions. TIG also contends that the court prematurely held that the players' claims arose from multiple occurrences. We also disagree with this contention, and find that each player's alleged injury constituted at least one separate "occurrence" within the meaning of coverage under the TIG policies. Further, these occurrences did not reach the $51 million liability threshold required to trigger AGLIC's policy. Coverage D [*9] It is undisputed that AGLIC failed to raise its Coverage D argument in its motion papers below, but did so at oral argument on the motion and in response to the NFL's motion for summary judgment that is considered in the appeal from the April 2025 order. However, AGLIC's Coverage D argument "does not allege new facts but, rather, raises a legal argument which appeared upon the face of the record and which could not have been avoided . . . if brought to [TIG's] attention at the proper juncture" (see Watson v City of New York, 157 AD3d 510, 511 [1st Dept 2018] [internal quotation marks omitted]). Because the issue is determinative and the policy in question was submitted on AGLIC's original motion, it may be reviewed by this Court (see Vanship Holdings Ltd. v Energy Infrastructure Acquisition Corp., 65 AD3d 405, 408 [1st Dept 2009]; Matter of Allstate Ins. Co. v Perez, 157 AD2d 521, 523 [1st Dept 1990]). Contrary to TIG's argument, the underlying concussion injury claims are not subject to the PCOH aggregate limit applicable under Coverage A of the 2001-2002 TIG primary policy. By its plain language, the Coverage D endorsement removed the "sums that the insured becomes legally obligated to pay as damages because of 'bodily injury' to any [player]" from Coverage A, and added them to Coverage D. While the Coverage D endorsement limited damages to those contained in the "Limits of Insurance" described in Section C of the endorsement, Section C simply replaced paragraph 2 of the "Limits of Insurance" provision in the 2001-2002 TIG primary policy, such that Coverage D was only subject to the "General Aggregate Limit" of the policy, if one applied.FN16 The record before this Court demonstrates that the 2001-2002 TIG primary policy does not have a general aggregate limit.FN17 It also demonstrates that the only limitation for legal liability to participants under Coverage D is $1 million per occurrence. Therefore, the threshold inquiry in determining whether the terms of the Participants Endorsement are dispositive as to the NFL's right to coverage under the AGLIC excess policy is whether Supreme Court correctly determined that each player's alleged injury constitutes a separate occurrence under the policy, a proposition TIG sharply opposes. TIG does not specifically assert an argument in opposition to AGLIC's claim that Coverage D applies. However, its general argument, that the collective group of injury claims were a single occurrence subject to the TIG policies' per occurrence limits of liability, if true, could result in a claim that reaches the $51 million liability threshold and triggers AGLIC's excess policy. [*10] New York follows the "unfortunate event" test to determine the number of occurrences under a liability policy (see Appalachian Ins. Co. v General Elec. Co., 8 NY3d 162, 171-172 [2007]). In applying this test, we must start by looking to the definition of "occurrence" in the policy for the suggestion of an intent to group claims (see id. at 173; see also International Flavors & Fragrances, Inc. v Royal Ins. Co. of Am., 46 AD3d 224, 228 [1st Dept 2007] ["analysis begins with the policy language"]). We then look to "whether there is a close temporal and spatial relationship between the incidents giving rise to injury or loss, and whether the incidents can be viewed as part of the same causal continuum, without intervening agents or factors" (Appalachian Ins. Co., 8 NY3d at 171-172). On appeal, TIG concedes that the unfortunate event test is the appropriate method to determine how occurrences are categorized for insurance coverage purposes. However, it contends that NFL play constitutes "precisely the kind of singular, ongoing event that establishes a single occurrence for purposes of insurance coverage." In support of its argument, TIG asserts that an ongoing single-occurrence finding is warranted under the "unfortunate event" test because the NFL's coverage theory, "that all players with Qualifying Diagnoses sustained those diagnoses the same way—playing the singular event of NFL football—without any regard for the time, place, manner, or number of hits sustained in their NFL career, renders consideration of the 'temporal and spatial relationship between the incidents' moot." Thus, as TIG asserts, the players' injuries arose from one common event that was "part of the same causal continuum, without intervening agents or factors" (id. at 172). For those policies that contain "grouping language," it further asserts that the policy language evinces an intent to aggregate these claims into a single occurrence. We disagree. As to the AGLIC policy, TIG acknowledges that the TIG primary policy in effect from 2001-2002 did not contain "grouping language." Therefore, there is no contractual language resolving this issue. Applying the unfortunate event test to determine the number of occurrences presented by the players' claims, we conclude that the underlying players' injury claims constitute multiple occurrences under the AGLIC policy. [*11] It is undisputed that the incidents giving rise to the players' injuries are head impacts sustained during their NFL career, and that their NFL play took place at different times, on different fields, and over the course of 24 years. While the incidents giving rise to the injuries share some commonalities, it cannot be said that the impacts at issue here, which involve over 20,000 former players who participated in approximately 10,000 games over multiple decades, in approximately 90 different stadiums share the same "temporal and spatial" characteristics "to unify them as one occurrence" (see id. at 169-170 [summarizing the motion court's findings]). These incidents are also not part of the same causal continuum (see id. at 171-172). When determining whether an incident is part of the same causal continuum, the unfortunate event test requires that we focus on the "nature of the incident[s] giving rise to damages" (id. at 171). Contrary to TIG's argument, the NFL's coverage theory does not change what constitutes a single occurrence—"causation is pertinent once the incident . . . is identified, but the cause should not be conflated with the incident" (id. at 172). Here, given that each head impact was sustained by different players, at different times, in different places, throughout the entirety of each player's career, and over several decades, the incidents cannot be said to have been precipitated by a single causal continuum. Therefore, AGLIC's motion for summary judgment dismissing the NFL's cross-claims for coverage under the AGLIC excess liability policy for 2001-2002 should have been granted. While the above determinations are dispositive as to AGLIC's motion, TIG contends that the language "all bodily injury and property damage arising out of continuous or repeated exposure to substantially the same general conditions shall be considered as arising out of one occurrence" groups the players' claims into a single occurrence under its 1984-1989 policies. This argument is unavailing. [*12] Parties are free to "define occurrence in a manner that group[s] incidents based on . . . approaches" or models that they deem fit (id. at 173). However, "[i]n the absence of a specific aggregation-of-claims provision precisely identifying the operative incident or occasion giving rise to liability, [we] must apply the 'unfortunate events' test to determine whether the underlying multiple claims constitute multiple 'occurrences' under the policy" (ExxonMobil Corp. v Certain Underwriters at Lloyd's, London, 50 AD3d 434, 435 [1st Dept 2008] [internal citation omitted], lv denied 11 NY3d 710 [2008]). Here, the grouping provision does not contain language identifying the operative incident as the repeated head impacts leading to each player's injuries. There is also nothing to suggest that the head impacts constitute exposure to the same general conditions—they involved different players and took place in different stadiums, at different times, and under different circumstances. While "[c]ourts have interpreted identical or similar grouping provisions" as that found in TIG's policies "as combining into a single occurrence exposures emanating from the same location at a substantially similar time" (Mt. McKinley Ins. Co. v Corning Inc., 96 AD3d 451, 452 [1st Dept 2012]; see e.g. Ramirez v Allstate Ins. Co., 26 AD3d 266, 266 [1st Dept 2006]; Fina, Inc. v Travelers Indem. Co., 184 F Supp 2d 547, 551-552 [ND Tex 2002]), for the reasons noted above, the language employed in the TIG primary policy definition of occurrence does not support a finding that the parties intended to aggregate the players claims here (see International Flavors & Fragrances, Inc., 46 AD3d at 229; see also Mt. McKinley Ins. Co., 96 AD3d at 452). Therefore, the grouping provision does not apply, and our findings pursuant to the unfortunate event test prevail as to those policies. PCOH Coverage We next consider Supreme Court's determination as to the PCOH aggregate limit, as this determination directly implicates the remaining parties. The policy years at issue do not impose general aggregate policy limits. However, TIG contends that the aggregate limit applicable to the PCOH applies to the players' head injury claims at issue here. Said differently, TIG contends that Supreme Court was correct in determining that the term "product" could, as a matter of "common speech," include intangible items such as NFL football, and therefore, the PCOH aggregate limit applies. We disagree. [*13] "Ambiguity in a contract arises when the contract, read as a whole, fails to disclose its purpose and the parties' intent" (Ellington v EMI Music, Inc., 24 NY3d 239, 244 [2014], citing Brooke Group v JCH Syndicate 488, 87 NY2d 530, 534 [1996]), or when its terms are susceptible to more than one reasonable interpretation (Home Indem. Co., 66 NY2d at 671; see Chimart Assoc. v Paul, 66 NY2d 570, 573 [1986]). Terms and "provisions are not ambiguous merely because the parties interpret them differently" (Universal Am. Corp. v National Union Fire Ins. Co. of Pittsburgh, Pa., 25 NY3d 675, 680 [2015] [internal quotation marks omitted]). Instead, the existence of ambiguity is determined by "examin[ing] the entire contract and consider[ing] the relation of the parties and the circumstances under which it was executed" (Kass v Kass, 91 NY2d 554, 566 [1998], quoting Atwater & Co. v Panama R.R. Co., 246 NY 519, 524 [1927]). The language is to be considered "not as if isolated from the context, but in the light of the obligation as a whole and the intention of the parties as manifested thereby" (id.). Where the policy makes clear the parties' overall intention, courts examining isolated provisions "should . . . choose that construction which will carry out the plain purpose and object of the [agreement]" (id. at 567 [internal quotation marks omitted]). In this regard, consideration must be given to the expressed words, "the attendant circumstances, the situation of the parties, and the objectives that they were striving to attain" (Brown Bros. Elec. Contrs. v Beam Constr. Corp., 41 NY2d 397, 400 [1977]). As applied here, "[t]he goal of product-hazards coverage is to insure the party who is responsible for sending goods into the stream of commerce" (Frontier Insulation Contrs. v Merchants Mut. Ins. Co., 91 NY2d 169, 177 [1997]). It covers "[t]he distinct risk of loss occasioned by a defect in the insured's product, which manifests itself only after the insured has relinquished control of the product and at a location away from the insured's normal business premises" (id. at 176). Consistent with this precedent, the TIG PCOH limits its application to, as relevant, " 'bodily injury' . . . occurring away from premises [the insured] own[s] or rent[s] and arising out of 'your product' or 'your work' . . . except . . . [p]roducts that are still in your physical possession." Importantly, the TIG policies define "your product" as "[a]ny goods or products . . . manufactured, sold, handled, distributed or disposed of by" the insured or "[o]thers trading under [the insured's] name . . . [and] [c]ontainers (other than vehicles), materials, parts or equipment furnished in connection with such good or products." This policy language is controlling and when considered together it is clear the underlying concussion injury claims do not fall within the PCOH coverage. [*14] In its decision, Supreme Court looked beyond the above policy language to give a broader and more expansive definition to the term "product." This was improper. While it is common for courts, in reading insurance contracts, to apply a "common speech" understanding of relevant terms, when doing so, they must be cognizant of "the reasonable expectations of a businessperson" (Belt Painting Corp. v TIG Ins. Co., 100 NY2d 377, 383 [2003]; see Lend Lease [US] Constr. LMB Inc. v Zurich Am. Ins. Co., 136 AD3d 52, 56 [1st Dept 2015], affd on other grounds 28 NY3d 675 [2017] ["the language of the policy . . . is interpreted according to common speech and consistent with the reasonable expectations of the average insured"] [internal quotation marks and citation omitted]). Terms that are clear cannot be disregarded and those that are defined in the policy must be afforded their intended meaning (see Lend Lease [US] Constr. LMB Inc., 136 AD3d at 56). However, "[t]he lack of a definition [does not], in and of itself, render a word ambiguous" such that a party's subjective meaning controls (id.).FN18 Nor does, as relevant here, isolating the word "product" from the defined term "your product" make it subject to an interpretation outside of its contractual definition, which, even under its "plain and ordinary meaning," must be tangible goods FN19 (White v Continental Cas. Co., 9 NY3d 264, 267 [2007]; see Frontier Insulation Contrs., 91 NY2d at 176-177; see also United States v Aleynikov, 737 F Supp 2d 173, 182 [SD NY 2010]). Although TIG contends that the term "product" encompasses intangible items, we find it improper to isolate the word "product" from its context in the PCOH (see Belt Painting Corp, 100 NY2d at 387; see also Slattery Skanska Inc. v American Home Assur. Co., 67 AD3d 1, 13-14 [1st Dept 2009] ["The best evidence of what the parties to an agreement intended is the language of the agreement itself especially where, as here, the parties to the insurance policy were sophisticated commercial entities"(internal citation omitted)]). Even if intangible items are within the definition of "product" under common speech, the PCOH applies where the product is no longer in the insured's "physical possession." Thus, it "strains the plain meaning, and obvious intent, of the language" to suggest that the "product," as considered within the purview of PCOH coverage, could be an intangible commodity (Belt Painting Corp., 100 NY2d at 388 [internal quotation marks omitted]; see also Aleynikov, 737 F Supp 2d at 182 ["Unlike the law of products liability, which specifically addresses the physical harms that may be caused by tangible consumer goods, the law of intellectual property concerns both intangible and tangible items"]). Therefore, the underlying concussion injury claims do not fall within the PCOH coverage, and the PCOH aggregate limit does not apply. [*15] Contrary to TIG's assertion, the NFL's argument in intellectual property-related litigation, i.e., that it produces an entertainment product, does not require a finding that the TIG policies' product liability coverage language incorporates intangible intellectual property. Rather, the law of products liability applies to the products liability hazard limit (see Broad St., LLC, 37 AD3d at 131 [courts should not "disregard the provisions of an insurance contract which are clear and unequivocal or accord a policy a strained construction merely because that interpretation is possible"]). Thus, while we agree with Supreme Court to the extent it determined that each player's alleged injury constituted at least one separate "occurrence" within the meaning of the coverage, we find that the language of the PCOH and the policy definition of "your product," when read together, are unambiguous. Their plain language indicates that the product, as expected to be covered by the PCOH, is a tangible/physical product. Supreme Court should not have expanded the definition of "product" to include intangible products simply because that interpretation is possible (see Westchester Fire Ins. Co., 186 AD3d at 140, citing Broad St., LLC, 37 AD3d at 131; Frontier Insulation Contrs., 91 NY2d at 177). April 22, 2025 Order In light of our holding above, AGLIC's appeal of Supreme Court's 2025 order, to the extent it denied its motions for summary judgment, is rendered academic. The NFL and TIG contend that Supreme Court erred in denying their respective motions for summary judgment. TIG argues that it is entitled to summary judgment because: the NFL cannot establish that the head impacts constitute "occurrences" under the policies; the NFL cannot establish that the players suffered injuries during the insurers' policy periods; the NFL did not suffer a loss; the NFL's notice of claims was untimely as a matter of law; and the NFL entered into the MDL settlement without its consent, as required by the policy. The NFL, in turn, argues that the concussion injuries at issue constitute "occurrences" within the meaning of the policies; that they are entitled to summary judgment dismissing the insurers' "no loss" and "unreasonable settlement" defenses; as well as summary judgment declaring that their notice was timely as a matter of law. The NFL also maintains that the insurers' consent to the settlement was not necessary. Whether Head Impacts Constitute an Occurrence Under the Policies Based on our findings above, Supreme Court should have granted the NFL's request for a declaration that each claim by or on behalf of a former player constitutes at least one separate occurrence under each of the TIG policies. The pertinent language considered above is mirrored throughout the policies and therefore it follows that our finding that each player's alleged injuries are to be treated as a separate occurrence applies to the remaining policies. [*16] We turn now to what qualifies as an occurrence under the policy. TIG argues that the players' head injuries do not constitute occurrences because they are an inherent risk of the intentional violent impacts intrinsic to NFL play. We reject this argument. First, the record reflects, and TIG notes, that the occurrence here is the alleged development of neurodegenerative diseases, not the impacts or concussions endured during the games. Therefore, its argument that the head impacts were not accidental is not relevant to our determination. Second, the policy language "unexpected and unintentional" is to be read narrowly and should bar recovery "only when the insured intended the damages" (Continental Cas. Co. v Rapid-American Corp., 80 NY2d 640, 649 [1993]). Said differently, an insured "may engage in behavior that involves a calculated risk without expecting that an accident will occur—in fact, people often seek insurance for just such circumstances" (id.). Thus, the question of whether the NFL expected or intended the players to develop the neurogenerative diseases is expressly relevant (see Consolidated Edison Co. of N.Y. v Allstate Ins. Co., 98 NY2d 208, 220-221 [2002]). While TIG has based its argument on a contrary contention, its own expert opined that neurological diseases were not inherent in football, thereby undercutting its argument that the injuries were expected or intended by the NFL. As TIG has failed to establish its prima facie burden of demonstrating its entitlement to judgment as a matter of law based on its argument that the NFL expected or intended the damages, its motion for summary judgment was correctly denied. Whether the NFL has shown that the Players Suffered Injuries During the Relevant Policy Periods Supreme Court also correctly denied TIG's motion to the extent it sought summary judgment based on the assertion that the NFL cannot meet its threshold burden of showing that players recovering under the settlement suffered injuries during the relevant policy periods. In continuous exposure cases, New York Courts follow the injury-in-fact test to determine when coverage is triggered. Under this test, an insurance policy is triggered at the onset of the injury, sickness, disease, or disability, "whether discovered or not" (Greater N.Y. Mut. Ins. Co. v Royal Ins. Co., 238 AD2d 261, 261 [1st Dept 1997]; see also American Empire Ins. Co. v PSM Ins. Cos., 259 AD2d 341, 343 [1st Dept 1999]). TIG concedes that the injury-in-fact test is controlling. However, it contends that the NFL has failed to prove an injury-in-fact has occurred during the policy periods in question because its coverage theory relies on the conclusory assertion that the neurodegenerative diseases occurred upon a player's first exposure to a head impact. [*17] Although here, there is no adjudication and no agreement that a loss falls within the ambit of the policy coverage, the Court of Appeals has held that further proceedings are required to determine the basis of the insured's liability, "not from the pleadings but from the actual facts" (Servidone Constr. Corp. v Security Ins. Co. of Hartford, 64 NY2d 419, 425 [1985]). In this situation, "the burden of proof [rests] with the insurer to demonstrate that the loss compromised by the insured was not within policy coverage. If the insurer does not establish that this loss falls entirely within the policy exclusion as claimed, it will have failed to sustain its burden" (id.). TIG's reliance on the Court of Appeals holding in Servidone is misplaced. Servidone simply requires that the basis for liability be covered under the policy (see id. at 423; Uniroyal, Inc. v Home Ins. Co., 707 F Supp 1368, 1379 [ED NY 1988]). While, in establishing its right to indemnity, the NFL is required to prove coverage based on actual facts, it is not required to demonstrate its own liability and instead must prove the facts necessary for a coverage determination, i.e., that the players were suffering from a covered neurogenerative disease during the policy periods (see Servidone Constr. Corp., 64 NY2d at 423; Continental. Cas. Co. v Employers Ins. Co. of Wausau, 60 AD3d 128, 148 [1st Dept 2008], lv denied 13 NY3d 710 [2009]). TIG contends it is entitled to summary judgment because the NFL has failed to establish that the players were suffering from diseases during its policy periods and the relevant "actual facts" about the MDL settlement are undisputed. However, the "underlying complaint" in the NFL Concussion Litig. does not preclude the possibility that the neurodegenerative injuries began during the policy periods in question (see American Empire Ins. Co., 259 AD2d at 343). Therefore, the policies are triggered (id.). TIG has failed to establish that the players did not suffer any neurodegenerative injuries during the policy period; in continuous exposure cases "[a] real but undiscovered injury, proved in retrospect to have existed at the relevant time, would establish coverage irrespective of the time the injury became manifest" (Continental Cas. Co., 60 AD3d at 148 [internal quotation marks and emphasis omitted]; Greater N.Y. Mut. Ins. Co., 238 AD2d at 261). TIG has failed to prove that there is no factual basis on which it may be required to indemnify the NFL pursuant to the relevant policies (see e.g. Continental Ins. Co., 83 NY2d at 627-628; Servidone Constr. Corp., 64 NY2d at 425). Untimely Notice and Indemnification [*18] TIG also argues that the NFL's notice of claim was untimely as a matter of law and that the NFL did not suffer a covered "loss" because it was fully indemnified by the Clubs, which share equally in all expenses and liabilities incurred by the NFL, and have already paid such amounts. As to notice, TIG contends that the NFL was on notice of the players' claims in late October 2010 but failed to provide notice of the claims to TIG until after the lawsuits were filed in August 2011. In opposition, the NFL contends that the TIG policies require notice when "a claim is made or 'suit' is brought." Therefore, it contends the notice it provided to TIG within two weeks of the first lawsuit being filed was timely. TIG moved only for a judgment that the NFL gave late notice of claim in violation of the terms of the policy. Thus, the operative questions before this Court are when was the NFL put on notice of a claim,FN20 and whether, based on the date of the NFL's notice, it sent timely notice of the claim to TIG. Relatively short periods of delay in providing a notice of claim have been found unreasonable as a matter of law (see e.g. Rushing v Commercial Cas. Ins. Co., 251 NY 302, 304 [1929]; Haas Tobacco Co. v American Fid. Co., 226 NY 343, 345 [1919]). Here, however, the record is devoid of any indication as to when the NFL received notice of the claims. Without this information, neither TIG, nor the NFL can demonstrate whether the notice of claim was timely as a matter of law (cf. Juvenex Ltd. v Burlington Ins. Co., 63 AD3d 554, 554 [1st Dept 2009]; Power Auth. of State of N.Y. v Westinghouse Elec. Corp., 117 AD2d 336, 342 [1st Dept 1986]). As a result, Supreme Court correctly denied both parties' motion for summary judgment on this issue. Turning to the issue of indemnification, we agree with Supreme Court to the extent it denied TIG's motion for summary judgment based on the "third-party" indemnification the NFL received from the NFL Clubs. However, we find that Supreme Court should have granted the NFL's motion to the extent of dismissing TIG's "no loss" defense. We reject TIG's argument that the NFL has been indemnified by the NFL Clubs for the cost of settlements and has therefore not suffered a loss. As an unincorporated association, the NFL is not a legal entity separate from the members that compose it (see Martin v Curran, 303 NY 276, 291 [1951]; Kirkman v Westchester Newspapers, Inc., 287 NY 373, 377 [1942]). A payment by its members is a payment by the insured entity. Stated differently, the general funding structure of the NFL, an unincorporated association for which the member Clubs share profits and liability equally, is akin to shareholders dividing profits and losses equally, and not a third-party indemnitor (cf. Inchaustegui v 666 5th Ave. Ltd. Partnership, 96 NY2d 111, 114-116 [2001] [limiting damages recoverable by landlord from both its own insurance and tenant that failed to procure insurance]). [*19] Under the New York Rule, set forth by this Court in Alexandra Rest. Inc. v New Hampshire Ins. Co. of Manchester (272 AD 346 [1st Dept 1947], affd 297 NY 858 [1948]), an insured's insurable interest is not "diminished because [it] has collateral contracts or relations with third persons which relieve [it] wholly or partly from the loss against which the insurance company agreed to indemnify [it]" (id. at 351). Rather, "the party insured is entitled to be compensated for such loss as is occasioned by the perils insured against, in precise accordance with the principles and terms of the contract of insurance" (id. [internal quotation marks omitted]). With these considerations in mind, we first look at the insurable interest at the time the insurance was effected and at the time of the loss, to determine the rights and liabilities between the insured and the insurer (see Foley v Manufacturers & Builders' Fire Ins. Co. of N.Y., 152 NY 131, 134-135 [1897]; accord Eshan Realty Corp. v Stuyvesant Ins. Co. of N.Y., 12 AD2d 818, 818 [2d Dept 1961], affd 11 NY2d 707 [1962]). While an insured may not recover twice for the same loss, and an insurer might be entitled to a reimbursement if the recovery exceeds the actual damages sustained for a covered loss, that is simply not the case here as it is undisputed that TIG has not provided any payment to the NFL (see Eshan Realty Corp., 12 AD2d at 818). TIG's further contention that Section 3.11 of the NFL Constitution requires Clubs to indemnify suits against the League is also unavailing. Under Section 3.11 (C), the Clubs agreed to "indemnify the Commissioner, the League and every employee thereof, every member club and every officer, director, or employee thereof . . . from and against any and all claims, demands, suits or other proceedings . . . in connection with or by reason of any action taken or not taken by the released/indemnified parties in their official capacities on behalf of the League or any committee thereof." This indemnification provision applies only when NFL or Club officials are sued in their official capacities for actions taken on the NFL's behalf. As it is undisputed that this action does not involve the indemnification of personnel acting on behalf of the league, we reject TIG's argument that it is entitled to summary judgment based on the purported receipt by the NFL of indemnification from its member football clubs. Settlement Without Carriers' Consent and Reasonableness of Settlement TIG argues that it is entitled to summary judgment because the NFL settled without its consent, in contravention of the terms of the policy. In response, the NFL contends that TIG waived its consent by disclaiming coverage and that it is therefore entitled to summary judgment dismissing TIG's lack of consent and unreasonable settlement defenses. [*20] Where provided for in a policy, an insurer's right to consent to settlement is a condition precedent to coverage (see Vigilant Ins. Co. v Bear Stearns Cos., Inc., 10 NY3d 170, 177-178 [2008]). However, where an insurer has repudiated liability for a claim on the grounds that it is not covered by the policy, the insured may settle without the insurer's consent (see J.P Morgan Sec. Inc., v Vigilant Ins. Co., 53 Misc 3d 694, 697 [Sup Ct, NY County 2016], affd 151 AD3d 632 [1st Dept 2017]). In Century Indemnity Co. v Brooklyn Union Gas Co. (170 AD3d 632 [1st Dept 2019]), this Court found that the commencement of an action against the insured seeking a declaration that there is no coverage "constituted a repudiation of liability under the policies . . . relieving [the insured] of its obligation under the policies to obtain [the insurance carrier's] consent" before agreeing to settle (id. at 633). This Court has also held that an insurer's unreasonable delay in handling an insured's claims, consistent position that the claims did not constitute claims under the policy, and insistence that payments were not insurable, "constitute[d] a denial of liability under the contracts that justifies [an insured's] settlement of those claims without [the insurance carrier's] consent" (J.P. Morgan Sec. Inc., 151 AD3d at 633; see also AJ Contr. Co. v Forest Datacom Servs., 309 AD2d 616, 617-618 [1st Dept 2003]). The inquiry before this Court is twofold. We must determine whether TIG's cross-claims seeking a "declaration of the parties' respective rights and obligations under the policies," specifically as to "any past or future duty to defend the NFL or NFL properties may be limited or precluded by a number of factual or legal defenses" constituted a repudiation of coverage. We must also consider whether, in light of its cross-claims, TIG's continued reservation of rights, delay in making a coverage determination, and refusal to consent to settlement, effectively repudiated coverage. While TIG's initial reservation of rights letters did not deny all theories of liability, it may have nonetheless engaged in "unreasonable delay" in dealing with the NFL's claims under the policies by failing to make a coverage determination (see J.P. Morgan Sec. Inc., 151 AD3d at 633; see also Century Indem. Co., 170 AD3d at 633). Specifically, TIG continued to reserve its rights and refused to consent to settlement because it had not received the NFL's defense files to "evaluate the NFL's potential exposure." However, this Court has already determined that the insurers were not entitled to the NFL's attorney-client and work-product privileges (see Alterra Am. Ins. Co. v National Football League, 191 AD3d 496 [1st Dept 2021]). [*21] It is also not dispositive that TIG has paid some of the NFL's defense costs. A disclaimer of coverage is not given less weight simply because it also indicated the insurer would defend the insured under a reservation of rights (see DeSantis Bros. v Allstate Ins. Co., 244 AD2d 183, 184 [1st Dept 1997], lv denied 91 NY2d 808 [1998]). Further, as an insurer may "not arbitrarily withhold consent and at the same time argue that [its insured] has not complied with a condition precedent," issues of fact exist as to whether TIG's withholding of consent to settle was in bad faith (Matter of Tri-State Consumer Ins. Co. v Hundley, 208 AD2d 754, 754-755 [2d Dept 1994], lv denied 85 NY2d 808 [1995]; see Matter of State Farm Mut. Auto. Ins. Co. [Callisto], 255 AD2d 876, 876 [4th Dept 1998]). As to TIG's cross-claims, it is clear that TIG seeks to limit or preclude coverage. TIG suggests that unlike a complaint, its cross-claims were a responsive pleading necessary to preserve its rights. However, "[t]he act of repudiation may result in numerous ways; among others, from the sending of a letter denying all liability and refusing to pay the loss . . . or from the assertion[ ] in an answer or otherwise" (Igbara Realty Corp. v New York Prop. Ins. Underwriting Assn., 63 NY2d 201, 217 [1984] [internal citation omitted]). While it is apparent that a cross-claim may constitute repudiation, an issue of fact exists as to whether the cross-claims here sought an explicit declaration that TIG had no duty to the NFL under the policies or denied coverage on the basis that the claims are not covered under the policies, thereby relieving the NFL of the obligation to obtain TIG's consent to settle. Reasonableness of Settlement The final issue for this Court to address is the reasonableness of the NFL's settlement in the MDL. It is well established under New York law that "[w]here the indemnitor . . . receive[s] notice of the claim against the indemnitee, . . . the general rule is that the indemnitor will be bound by any reasonable good faith settlement the indemnitee might thereafter make" (Deutsche Bank Trust Co. of Ams. v Tri-Links Inv. Trust, 74 AD3d 32, 39 [1st Dept 2010]). The reasonableness of a settlement is reviewed under an objective standard, taking into consideration, amongst other things, the strength of the claims, the cost of defense, and the amount of the settlement (see Deutsche Bank Trust Co. of Ams. v Tri-Links Inv. Trust, 43 AD3d 56, 65 [1st Dept 2007]). Based on these considerations, and as explained in further detail below, we find the NFL's MDL settlement reasonable. [*22] The MDL settlement covered over 20,000 retired players and released all concussion-related claims against the NFL. The settlement provided for an uncapped monetary award fund to compensate retired players and their families for six qualifying diagnoses setting maximum awards between $1.5 million and $5 million per person, depending on the diagnosis level, and subject to offsets, with a 65-year settlement lifespan; a $75 million baseline assessment program to pay for neurological functioning exams and supplemental benefits; and an education fund regarding the "existing CBA Medical and Disability Benefits programs," among other things (see NFL Concussion Litig., 307 FRD at 365-367, 395). The settlement was approved by a Federal District Court and the Third Circuit, with both courts concluding that the terms of the settlement were fair, reasonable, and adequate (id.). As part of its determination, the Third Circuit considered the complexity of the action and the significant and probable cost of continued litigation, finding that these factors weighed strongly in the favor of settlement (see NFL Concussion Litig., 821 F3d at 437-438). While this Court is not bound by the findings of the federal courts on this issue, their determinations provide guidance as to the question of reasonableness before us. Although the MDL settlement was projected to cost $1 billion over its lifetime, given the claims asserted, the extensive publicity and media coverage of the case, and the defense costs, we cannot say the settlement was objectionably unreasonable. In fact, a main contention of the objectors to the settlement in the federal action was that the settlement amount was too lenient (id. at 440). Thus, taking into account the complexity of the claims, "it cannot be said . . . that there was no possibility that litigating the case to the end would result in a judgment . . . in an amount greater than the settlement" (Deutsche Bank Trust Co. of Ams., 74 AD3d 32 at 43; see also J.P. Morgan Sec. Inc. v Vigilant Ins. Co., 203 AD3d 541, 542 [1st Dept 2022]). TIG also concedes that the NFL was in continued communications with it over the course of many months and sought TIG's consent to settle on at least nine occasions. TIG's briefs clearly establish that it was advised of the initial settlement proposal, the updated proposal, and the final MDL settlement. It is also clear that the information TIG sought, including the "documents, defenses, [and] strategies" in the underlying litigation, consisted of privileged attorney work-product this Court previously deemed TIG was not entitled to (Alterra Am. Ins. Co., 191 AD3d at 496). As TIG was on notice, it cannot now "object to a settlement merely because it believed it could have driven a tougher bargain, or been a tougher litigator" (Deutsche Bank Tr. Co. of Ams., 74 AD3d at 44 [internal quotation marks omitted]). Therefore, Supreme Court should have dismissed TIG's defenses based on the unreasonableness of settlement. [*23] Accordingly, the order of Supreme Court, New York County (Andrea Masley, J.), entered October 17, 2023, which to the extent appealed from, denied AGLIC's motion for summary judgment dismissing the cross-claims by defendants National Football League and NFL Properties LLC for declaratory relief pursuant to the AGLIC excess liability policy for 2001-2002; found that NFL football constituted a "product" under the PCOH and implicitly determined that the PCOH aggregate limits may be applicable; and found that the underlying personal injury claims arose from multiple occurrences, should be modified, on the law, to grant AGLIC's motion and it is declared that AGLIC has no duty to indemnify the National Football League and NFL Properties LLC in connection with the MDL settlement under the AGLIC excess liability policy issued for the period of November 20, 2001 to November 20, 2002, and to vacate the court's findings that NFL football constitutes a "product" under the PCOH and that the PCOH aggregate limits may be applicable, and otherwise affirmed, without costs. Order, same court and Justice, entered April 22, 2025, which denied the NFL's and TIG's motions for summary judgment, should be modified, on the law, to grant the NFL's motion to the extent of declaring that the settlement in the underlying litigation was reasonable, declaring that each claim by or on behalf of an individual player constitutes at least one separate occurrence within the per-occurrence policy limits of each respective TIG primary insurance policy, declaring that NFL football does not constitute a product as that term is defined under the PCOH, and dismissing the affirmative defenses asserting unreasonable settlement and "no loss" based on indemnification from another source, and otherwise affirmed, without costs. Order, Supreme Court, New York County (Andrea Masley, J.), entered October 17, 2023, which to the extent appealed from, denied America Guarantee and Liability Insurance Companies (AGLIC's) motion for summary judgment dismissing the cross-claims by defendants National Football League and NFL Properties LLC for declaratory relief pursuant to the AGLIC excess liability policy for 2001-2002; found that NFL football constituted a "product" under the Products Completed Operations Hazard (PCOH) and implicitly determined that the PCOH aggregate limits may be applicable; and found that the underlying personal injury claims arose from multiple occurrences, modified, on the law, to grant AGLIC's motion and it is declared that AGLIC has no duty to indemnify the National Football League and NFL Properties LLC in connection with the MDL settlement under the AGLIC excess liability policy issued for the period of November 20, 2001 to November 20, 2002, and to vacate the court's findings that NFL football constitutes a "product" under the PCOH and that the PCOH aggregate limits may be applicable, and otherwise affirmed, without costs. [*24] Order, same court and Justice, entered April 22, 2025, which denied the NFL's and TIG's motions for summary judgment, modified, on the law, to grant the NFL's motion to the extent of declaring that the settlement in the underlying litigation was reasonable, declaring that each claim by or on behalf of an individual player constitutes at least one separate occurrence within the per-occurrence policy limits of each respective TIG primary insurance policy, declaring that NFL football does not constitute a product as that term is defined under the PCOH, and dismissing the affirmative defenses asserting unreasonable settlement and "no loss" based on indemnification from another source, and otherwise affirmed, without costs. Opinion by Pitt-Burke, J. All concur. Moulton, J.P., Pitt-Burke, O'Neill Levy, Michael, Chan, JJ. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: October 1, 2026 Footnotes Footnote 1 TIG issued primary general liability policies to the NFL from 1978 through 2002 (the TIG primary policies) and also issued various umbrella and excess liability policies from 1989 to 2002 (the TIG excess policies) (collectively, the TIG policies). NFLP constitutes an insured under some, but not all, TIG policies. Footnote 2 AGLIC issued a Following Form Excess Liability Policy to the NFL from November 20, 2001 to November 20, 2002, which provides excess coverage for a portion of loss that exceeds $51 million. The AGLIC excess policy follows form to the "Controlling Underlying Policy." Footnote 3 The settlement also provided for an attorneys' fee award of up to $112.5 million "separate from, and in addition to, the NFL Parties' other obligations under the settlement" (NFL Concussion Litig., 307 FRD at 369). Footnote 4 The baseline assessment program was only available to the former players who did not opt out of the class. Footnote 5 Retired players who subsequently receive a more serious qualifying diagnosis after their initial diagnosis are entitled to receive a supplemental award (id. at 366-367). Footnote 6 The corollary range between the qualifying diagnosis and the maximum award is as follows: Level 1.5 Neurocognitive Impairment - $1.5 million Level 2 Neurocognitive Impairment - $3 million Parkinson's Disease - $3.5 million Alzheimer's Disease - $3.5 million Death with CTE - $4 million ALS - $5 million (see NFL Concussion Litig., 821 F3d at 424). Footnote 7 The "awards decrease: (1) as the age at which a retired player is diagnosed increases; (2) if the retired player played fewer than five eligible seasons; (3) if the player did not have a baseline assessment examination; and (4) if the player suffered a severe traumatic brain injury or stroke unrelated to NFL play" (id.). Footnote 8 TIG's primary policy covered $1 million per occurrence; TIG's excess policy covered the next $15 million per occurrence; an excess/umbrella policy from Vigilant Insurance Company covered the next $10 million per occurrence; an additional excess policy from Westchester Fire Insurance Company covered the next $25 million per occurrence; and AGLIC's excess policy covered 60% of the next $50 million (splitting that fifth layer with two other carriers). Footnote 9 North River provided primary general liability insurance to the NFL from October 20, 1978 to October 20, 1987; U.S. Fire provided similar coverage from October 1981 to October 1985; and TIG Insurance Company provided similar coverage from October 1987 through November 2002, also covering NFLP starting in November 1993. Footnote 10 The TIG excess policies also require the bodily injury to occur during the policy period. Footnote 11 "Occurrence" is also defined under other TIG policies to include "an accident, including continuous or repeated exposure to conditions, which results in bodily injury." Footnote 12 The policies all contain this or substantially similar language. Footnote 13 With the exception of the 1987-1988 and 1988-1989 TIG primary policies, which contain no aggregate limit, and the 1985-1986 TIG primary policy, which contains no PCOH aggregate limit but has a general aggregate limit of $5 million, every TIG policy at issue includes a PCOH aggregate limit. Footnote 14 "Your product" is also defined to include "[w]arranties or representations made at any time with respect to the fitness, quality, durability, performance or use of 'your product', and . . . [t]he providing of or failure to provide warnings or instructions." Footnote 15 While the Declarations page of the AGLIC excess policy indicates that the Vigilant Umbrella Policy is the "Controlling Underlying Policy," the Vigilant Umbrella Policy follows form to the TIG excess policy, which in turn follows form to the TIG primary policy. Footnote 16 Section C, Limits of Insurance, provides: "1. SECTION III-LIMITS OF INSURANCE, Paragraph 2 is replaced by the following: The General Aggregate Limitis the most we will pay for the sum of: Medical Expenses under Coverage C; Damages under Coverage A, except damages because of 'bodily injury' . . . included in the 'products-completed operations hazard'; Damages under Coverage B; and Damages under Coverage D." Footnote 17 The 1985-1986 and 1989-1990 primary policies were the only policies with general aggregate policy limits. Footnote 18 In any event, ambiguous provisions "must be construed in favor of the insured and against the insurer" (id. at 56). Footnote 19 Black's Law Dictionary defines product as "(s)omething that is distributed commercially for use or consumption and that is [ ] (1) tangible personal property, (2) the result of fabrication or processing, and (3) an item that has passed through a chain of commercial distribution before ultimate use or consumption" (Black's Law Dictionary [12th ed 2024]). Footnote 20 The term "claim" is not defined in the TIG polices. However, in those cases determining when a claim arose for the purposes of coverage, it has been defined as "a demand received by the Insured . . . for money or services" or "an assertion of legally cognizable damage . . . that can be defended, settled and paid by the insurer" (Matter of Reliance Ins. Co., 55 AD3d 43, 47 [1st Dept 2008], affd 12 NY3d 725 [2009]).