Patrons of the Pasha Mediterranean Grill in San Antonio had to stomach an unsavory outcome in their bid to obtain multiple occurrence limits in Travelers Cas. Ins. Co. of Am. v. Mediterranean Grill & Kabob Inc., 2020 WL 6536163 (W.D. Tex. Nov. 4, 2020). Between August 29 and September 1, 2018, nearly 200 cases of food poisoning from salmonella bacteria were reported after the patrons ate at Pasha. Hummus prepared at the restaurant was believed to be the source of the salmonella, although the specific cause—whether an ingredient, piece of equipment, or employee failure to follow hand washing procedures—was not conclusively identified.  After Travelers settled claims with some of the claimants, the remaining claimants contended that Travelers’ aggregate limits should be available because there were multiple “occurrences” over the three-day outbreak.

The court sided with Travelers, holding that the outbreak constituted only a single occurrence. Surveying Texas case law, the court held that “only one cause” gave rise to Pasha’s liability, even if events such as preparing new batches of food or closing the restaurant at night interrupted or staggered the injuries from the cause. Id. at *2.   Because the policy defined an “occurrence” to include “continuous or repeated exposure to the same general harmful conditions” and because there was no allegation or evidence that Pasha returned to preparing food safely before a second round of infections occurred, Pasha’s negligence caused “one uninterrupted chain of events.” Id. at *3.  The court also rejected the patrons’ argument that the unknown source of the contamination should be construed as multiple occurrences, noting that all of the patrons alleged that Pasha’s manufacture or preparation of the food had made them sick.  This fact distinguished the case from Maurice Pincoffs Co. v. St. Paul Fire & Marine Ins. Co., 447 F.2d 204 (5th Cir. 1971), in which the court found multiple occurrences in the insured’s sales of contaminated bird seed, because the insured in Pincoffs was merely the importer, not the manufacturer whose negligence was the cause of the contamination.

Takeaways:  Determining the number of occurrences can be tricky—the insured’s precise role in connection with the alleged negligence, intervening causes, and the amount of time between injuries or events are all factors that may influence the determination.  This opinion from the Western District provides a useful framework for analyzing this complicated but common issue.