UK: Foster Poultry Farms: Concerns For Contaminated Products Insurers

Last Updated: 22 October 2015
Article by Jason McNerlin

On 9 October 2015, summary judgment was ordered against insurers in the coverage case of Foster Poultry Farms v Certain Underwriters at Lloyd's. This decision of a Californian district court, applying New York law, deserves the attention of all those involved in Contaminated Products insurance underwriting and claims.


The background facts are widely-known, and can be summarised simply. In 2013, Foster Farms ("Foster") became implicated in an outbreak involving Salmonella Heidelberg, one of over 2,500 Salmonella serotypes. More than a dozen US states were affected. Later, on 7 October 2013, the US Food Safety and Inspection Service ("FSIS") served a Notice of Intended Enforcement on Foster, referring to concerns about Foster's inadequate Salmonella control, as well as various sanitation issues. There followed various measures, including a phase of intensified Salmonella sampling of Foster's consumer-ready packaged chicken.

On 6 December 2013, FSIS issued a Letter of Concern to Foster, highlighting that current levels of positive results were still high, including in "products related to ... outbreak clusters associated with ... Salmonella Heidelberg". This letter also remarked on a high number of sanitation issues, and asserted some of them "may directly or indirectly contribute" to Salmonella. The numerous sanitation issues included live cockroaches.

Cockroaches were observed again on 28 December and 7 January 2014. On 8 January, there was a further sighting, and this provoked a Notice of Suspension the same day. The Notice referred to "egregious insanitary conditions", allegedly demonstrating that Foster had "failed to prevent conditions that could lead to insanitary conditions, where products may have been rendered adulterated and/or injurious to health." The Notice also asserted that "cockroaches and other pests can transmit ... bacteria ... increasing the chances of product contamination rendering the product unsafe".

The facility resumed operations on 22 January 2014, but Foster was not permitted to sell 1.3 million pounds of chicken, which had been produced on 7 and 8 January. Foster incurred substantial losses, and claimed under its Product Contamination policy for losses including over USD 8 million in loss of profits, and more than USD 4 million for increased cost of working. It also claimed against its pest control consultant.

Insurers declined the claim on multiple grounds, including (for Accidental Contamination) lack of evidence that destroyed product was actually contaminated, lack of injury risk, and (for Government Recall) lack of a recall.


The Court decided in favour of Foster, and its findings included the following:

  1. The relevant production errors were Foster's failures to comply with sanitation requirements
  2. The policy did not expressly require evidence of actual contamination, for example a positive test result, but in any case there was such evidence, as three out of eight test results on 8 January 2014 were positive for Salmonella
  3. The use of regulatory "reasonable probability" language in the Government Recall endorsement infl uenced the meaning of the Accidental Contamination requirement that product "would" lead to bodily injury
  4. "Bodily injury" was not defined, and New York law considers it to include pure emotional injury (which, Foster argued, any consumer would suffer)
  5. Under Government Recall, the word "recall" was not defined, so was interpreted broadly, to include withholding from commerce


The Court appeared to be guided by a broad, simple view that Foster had probably made harmful product. It may have been influenced by Foster being implicated in outbreaks of Salmonella Heidelberg (before and after January 2014), and appeared to consider that this strain can survive heating to the recommended temperature of 165°F. The evidence also suggested insurers had decided not to exclude Salmonella risk.

Numerous questions arise from this summary judgment. For example, it is not clear what precisely the Insured Event was. The importance of identifying the event is obvious, as it determines policy attachment, notification duties, and the starting point for time-limited cover. One interpretation of the Court's decision is that the Insured Event error was failure to comply with sanitation conditions on 7 and 8 January 2014. However, the coverage status of similar errors, which had been occurring during several months before this, appears not to have been fully addressed.

Furthermore, on the question of whether actual contamination was required, the policy had several relevant provisions that were not referred to in the judgment, including:

  1. The Insured Event was entitled "Accidental Contamination", and there was no policy provision saying that headings and titles were irrelevant to interpretation
  2. Aggregation for Accidental Contaminations depended on whether each "contamination" was caused by or contributed to by the same error
  3. There was a condition precedent requiring samples of Insured Product to be retained to assess whether there had been an Accidental Contamination

Moreover, it is not clear whether the Court considered the risk of harm existed because of Salmonella, or Salmonella Heidelberg in particular. FSIS tolerates a certain level of Salmonella in raw chicken, and does not consider this to be an adulteration, for reasons including that it is practically unavoidable, and should also be eliminated by cooking to 165°F. If any and all presence of Salmonella in raw chicken is a coverage trigger, this may be concerning for insurers.

Next steps

Even though the Court found in favour of Foster, there may be arguments on causation and quantum. Interesting questions could include the date of the Insured Event, and the extent to which loss might have been caused by any policy breaches on the part of Foster.

In any event, the judgment leaves open a number of key coverage questions, a few of which we have highlighted above. Contaminated Products insurers would be welladvised to review wordings and exposures, particularly regarding Salmonella risk.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.