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Liability Outbreaks From Foodborne Illness

Every now and again there are reports of groups becoming ill after eating something, whether it be hamburgers, chicken or certain fruits or vegetables. The foodborne illness usually affects multiple people in multiple areas, even when the contamination comes from one source. Such illnesses can then lead to multiple injury...

By David D. Thamann, JD, CPCU | Updated on March 20, 2013
Every now and again there are reports of groups becoming ill after eating something, whether it be hamburgers, chicken or certain fruits or vegetables. The foodborne illness usually affects multiple people in multiple areas, even when the contamination comes from one source. Such illnesses can then lead to multiple injury claims against that one source. The insurer of that source then must decide whether to address the claims as one occurrence or multiple occurrences.

As an example, consider the case of Republic Underwriters Insurance Co. v. Moore. Here, the County Cottage Restaurant in Locust Grove, Okla., was preparing and serving E. coli-contaminated food between Aug. 15 and Aug. 24, 2008. Some 341 people were infected: 21 ate food at a church gathering catered by the restaurant, while the rest became sick after eating at the restaurant. Were the bodily injury claims that were submitted a result of one occurrence or multiple occurrences?

Limiting Policy Language

It can be said that the drafters of the standard General Liability policy intended to limit liability for continuous or repeated exposure to the same general conditions to a single occurrence, rather than having each result or claim from the same incident counted as a different occurrence. The limiting language is contained in the definition of “occurrence,” which is defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” In other words, the number of occurrences is determined by referring to the cause of the damage and not to the number of injuries or claims that may arise out of the incident. This is known as the “cause theory.”

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