Travelers Cas. Ins. Co. of Am. v. Grill
| Decision Date | 04 November 2020 |
| Docket Number | CIVIL ACTION NO. SA-20-CA-0040-FB |
| Citation | 499 F.Supp.3d 371 |
| Parties | TRAVELERS CASUALTY INSURANCE COMPANY OF AMERICA, Plaintiff, v. MEDITERRANEAN GRILL & KABOB INC. d/b/a Pasha Mediterranean Grill, et al., Defendants. |
| Court | U.S. District Court — Western District of Texas |
Seth A. Schmeeckle, Lugenbuhl Wheaton Peck Rankin and Hubbard, New Orleans, LA, Christine R. Edwards, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, Houston, TX, for Plaintiff.
Charles K. Tabet, Attorney at Law, San Antonio, TX, Timothy F. Lee, Ware Jackson Lee O'Neill Smith & Barrow LLP, Houston, TX, for Defendant Mediterranean Grill & Kabob Inc.
Daniel E. Serna, E. B. Barretto, Law Office of Enacio B. Barretto, Enrique G. Serna, Daniel Serna & Associates PLLC, Justin Allen Hill, Hill Law Firm, Miguel A. Ortiz, Ortiz Law Offices, P.C., San Antonio, TX, Jory D. Lange, Jr., The Lange Law Firm, PLLC, Ron Simon, Ron Simon & Associates, Timothy F. Lee, Ware Jackson Lee O'Neill Smith & Barrow LLP, Houston, TX, for Defendants Brady Passant, Earl Nathan Sparrow, Jennifer Ramirez, Elyssa Barrientos, Adrian Flores, Aracely Flores, Jason Chandler, Stephanie Chandler, Adam Maizel, Cesar Rodriquez, Richard Guerra, Paula Harbert, Juanita Martinez, Kimberly Hart, Jesse Harbert, Jayesh Patel, Terri Gard, Jeffrey Hall, Samuel Manago, Sandhia Patel, Shirley Davis, Mukundrai Patel, Nimish Patel, Marie Troyer, Jackitrise Scott, Vincent Scott, Akari Scott, Zachary Pierce, Jimmy Stout, Sheetal Patal, Fran Magri, Verrick Scott, Avani Scott, Gabi Sanchez, Aaron Kurdi, Stephanie Kurdi, Gonzalo Perez, Leticia Fiscal, Burhan Suleiman, Donald Wuebben, Anna Marie Heavirland, Ashleigh Tatarcyk, Mario Leyva, Cathryn Vacca, Julie Ruiz, Megan Martini, Julie Ann Lopez, David Stallcup, Grace Riggins, Cynthia Hughlette, Lilandra Sanchez, Yecenia Luttin, Melba Melton, Lori Young, Amber Sladovnik, Shelby Saunders, Benjamin Stevens, Allie Luttin, Jason Ramirez, Robert Whelan, James White, Madison Weilbacher, Vincent Rodriguez, Rosemary Salinas, Ashley Meza, Nancy Limon, Jessica Irwin, Emmanuel Diaz Perez, Claire Kowalick, Christine Young, Adam Stafford, Rosalva Hernandez, Bryson Rodriguez, Cynthia Marshall, Juan Tremillo, Lajuan Oliver, Christine Taylor, Rissa Limon, Crystal Oliver, Eric Steitz, Christopher Meza, Carlos Sanchez, Margaret Sanchez, Serena Hernandez, April Sladovnik, Damien Ramirez, William Martin, Soledad Marquez, Carter Kowalick, Joshua Soto, Cheryl Whelan, Amanda Hernandez, Andrea Martinez, Justin Monroe, Vivian Monroe, Miranda Huerta, Leah Jokinen, Michael King, Krista Marion, Sandra Montelongo, Makikandran Rajendran, Sandeep Sabella-Reddy, Karthick Sampath, Sankara Shanmugavel, Michelle Nicholson, Onni Stotts, Longanathan Thirumalai, Ahmad Abdewahhad, Jacelyn Bell, Peyton Chandler, Partha Saradhi Chunchu, Destiny Garcia, Cristina Hinojosa, Abel Valdez, Lonnie River Sanchez, Stacie Morales, Michael Delgado, Mohamman Emami-Marand, Dhru Patel, Paresh Patel, Seema Patel, Lonnie Sanchez, Sheetal Patel, Mohammad Emami-Marand, Yesenia Rodriguez.
Daniel E. Serna, E. B. Barretto, Law Office of Enacio B. Barretto, Enrique G. Serna, Daniel Serna & Associates PLLC, Justin Allen Hill, Hill Law Firm, Miguel A. Ortiz, Ortiz Law Offices, P.C., San Antonio, TX, Jory D. Lange, Jr., The Lange Law Firm, PLLC, Ron Simon, Ron Simon & Associates, Timothy F. Lee, Ware Jackson Lee O'Neill Smith & Barrow LLP, Christine R. Edwards, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, Houston, TX, Seth A. Schmeeckle, Lugenbuhl Wheaton Peck Rankin and Hubbard, New Orleans, LA, for Defendant Martina Niswonger.
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Before the Court are Travelers Casualty Insurance Company of America's Motion for Summary Judgment and Memorandum in Support (docket no. 145); The Patrons' Response to Travelers's Motion for Summary Judgment, Objections to Summary Judgment Evidence and Alternative Motion for Continuance (docket no. 146); Defendant Mediterranean Grill & Kabob Inc.'s Response to Plaintiff's Motion for Summary Judgment, and Objections to Summary Judgment Evidence (docket no. 149); Travelers Casualty Insurance Company of America's Reply Memorandum in Support of Motion for Summary Judgment (docket no. 152); and The Patrons' Sur-reply in Support of their Response to Travelers' Motion for Summary Judgment (docket no. 153). After careful consideration, the Court is of the opinion that the motion for summary judgment should be granted, the objections to the summary judgment evidence should be overruled, and the alternative request for a continuance should be denied.
The question in this insurance case is whether 124 separate cases of food poisoning, all allegedly caused by a single restaurant over a four-day period, are a single "occurrence," within the terms of the restaurant's insurance policy. Under the facts of this case, the Court concludes the 124 cases of food poisoning are a single "occurrence."
Mediterranean Grill & Kabob Inc. d/b/a Pasha Mediterranean Grill ("Pasha") operates a restaurant in San Antonio, Texas. Between August 29 and September 1, 2018, nearly 200 cases of food poisoning from salmonella bacteria were reported in San Antonio, all after patrons ("the Claimants") ate at Pasha. The food poisonings gave rise to seven lawsuits ("the Claims"), each of which alleged Pasha was negligent in the manufacture and preparation of the food, and that Pasha's negligence was a proximate cause of the food poisonings at issue.
Travelers Casualty Insurance Company of America ("Travelers") was Pasha's primary insurer at the time of the food poisonings under a Commercial General Liability policy. The policy contains a $1 million "per occurrence" coverage limit, and a $2 million "aggregate" limit.
Some of the Claims associated with the food poisonings have settled, with Travelers paying out approximately $450,000 of its $1 million "per occurrence" limit. Travelers has offered the remainder of the $1 million limit to settle the remaining 124 Claims, but its offer has been rejected.
Travelers therefore filed this declaratory judgment action against Pasha and the remaining 124 Claimants. If the food poisoning cases are all a single "occurrence," as Travelers maintains, Travelers will be liable only for the remainder of its $1 million "per occurrence" limit. If, on the other hand, the food poisonings are 124 separate occurrences, as defendants contend, Travelers will have to pay over $1.5 million. For the following reasons, the Court concludes the food poisoning cases were a single "occurrence" under the policy. Consequently, Travelers' coverage limit is $1 million.
Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). "The movant bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact." Lincoln Gen. Ins. Co. v. Reyna , 401 F.3d 347, 349 (5th Cir. 2005) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 322-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). Where, as here, the movant bears the burden of proof at trial because it is the plaintiff, it "must establish beyond peradventure all of the essential elements of the claim ... to warrant judgment in [its] favor." Fontenot v. Upjohn Co. , 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis in original). A dispute about a material fact is "genuine" if the evidence is such that a reasonable fact finder could render a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In ruling on a motion for summary judgment, the Court must view all evidence in the light most favorable to the non-movant and "draw all reasonable inferences in favor of the non-moving party." Chaplin v. NationsCredit Corp. , 307 F.3d 368, 372 (5th Cir. 2002) (citing Anderson , 477 U.S. at 249-50, 106 S.Ct. 2505 ).
As an initial matter, the court finds that defendants' evidentiary objections to the Declaration of Benjamin B. Adam are without merit. The declaration reflects that Mr. Adams' statement that "it is believed that the contaminated hummus was the source of the salmonella" is based on Mr. Adams personal knowledge gained through investigation the salmonella food poisoning claims and participating in Pasha's defense of those claims. In addition, Mr. Adams does not offer legal conclusions but instead describes the theories of liability alleged in the underlying pleadings as well as attaches copies of those pleadings for the Court's consideration. Accordingly, the objections are overruled.
National Union Fire Ins. Co. v. CBI Indus., Inc. , 907 S.W.2d 517, 520 (Tex. 1995) (citations omitted).
Here, the policy contains a definition of the term occurrence: "Occurrence" means "an accident, including continuous or repeated exposure to the same general harmful conditions." The term "accident" is not separately defined in the policy, but the Texas Supreme Court has said that "[a]n accident is generally understood to be a fortuitous, unexpected, and unintended event." Lamar Homes, Inc. v. Mid-Continent Cas. Co. , 242 S.W.3d 1, 8 (Tex. 2007). Further, the Fifth Circuit has stated that "both state and federal courts in Texas have interpreted the terms ‘accident’ and ‘occurrence’ to include damage that is the unexpected, unforeseen or undesigned happening or consequence of an insured's negligent behavior." Federated Mut. Ins. Co. v. Grapevine Excavation...
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