Insurers Seek Reimbursement for Costs of Defending Restaurant in Food Toxin Suit

The insurance carriers for Rubio’s Restaurant have filed a motion for summary
judgment in a dispute with the company that insured the restaurant’s fish
supplier, following the settlement of claims pursued by a restaurant patron
who alleged that he has permanent and severe neurological injuries from
exposure to a toxin from the mahi mahi in a Rubio’s fish burrito. Fireman’s
Fund Ins. Co. v. Nationwide Mut. Fire Ins. Co., No. 11-0114 (S.D. Cal., motion filed April 9, 2012). While the patron and his wife reportedly
sought $7 million in damages, the settlement amount remains undisclosed.

According to the plaintiffs, the defendant must reimburse them for the costs
of defending the restaurant and the amounts they contributed to the settlement
on the restaurant’s behalf. The restaurant was evidently an additional
insured under the defendant’s policy with the fish supplier, and the plaintiffs
argue that a duty to defend exists when there is a potential that the policy
provides coverage. The defendant apparently argues that its duty to cover
the restaurant is triggered only if it can be proved with certainty that the fish
which caused the injury was supplied by its insured and that the restaurant
has failed to do so. See Law360, April 10, 2012.