A commercial excess liability dispute over a communicable disease exclusion just delivered a win for policyholders in Oregon federal court. In Scottsdale Insurance Company v. Bruce Packing Company, Inc., decided September 17, 2026, the U.S. District Court for the District of Oregon confronted a communicable disease exclusion head-on — and the ruling turned on how much a single conjunction can matter in an insurance policy.
Bruce Packing Company operates meat-processing facilities across the United States and produces millions of pounds of precooked meat annually. In October 2024, USDA inspectors identified multiple areas at Bruce Packing’s Durant, Oklahoma plant that tested positive for listeria monocytogenes. A sweeping recall followed, and bodily injury claims quickly piled up from consumers alleging listeria-related illness.
Bruce Packing held a commercial excess liability policy from Scottsdale Insurance Company. Scottsdale filed a declaratory judgment action, seeking a ruling that the policy’s “Communicable Disease Exclusion” precluded coverage for all listeria-related claims — and, with it, permission to walk away from Bruce Packing’s defense entirely.
The exclusion barred coverage for injury arising out of a “communicable disease,” defined in the policy as “any infectious and/or contagious disease, including but not limited to, diseases caused by bacteria, fungi, protozoa, viruses, or any combination of the foregoing.”
Everyone agreed that listeriosis is an infectious disease — it’s caused by a bacterium. And everyone agreed it is not a contagious disease — you get it from contaminated food, not from another person. So the entire case turned on what the drafter meant by “and/or.” If the exclusion applied to diseases that are infectious or contagious (or both), Scottsdale wins. If it requires a disease to be both infectious and contagious, the exclusion doesn’t apply to listeria — and Bruce Packing keeps its coverage.
Judge Kasubhai denied Scottsdale’s motion for partial summary judgment. The court found that “and/or” is inherently ambiguous under Oregon law, citing longstanding Oregon precedent describing the term as one that “permits the one person who should know what he is talking about to dodge the decision, and fobs off the choice on a stranger.” Because the conjunctive (“and”) and disjunctive (“or”) readings of the exclusion produce opposite outcomes, the court held that the plain meaning of the exclusion was ambiguous.
The court then examined context — and found no help there either. If “and/or” simply meant “or,” then including the word “contagious” in the definition would be meaningless, since all contagious diseases are already infectious. The court concluded that two reasonable interpretations of the exclusion persisted even after a thorough textual and contextual analysis, and under Oregon’s rule of construction, that ambiguity must be resolved against the insurer.
This decision is a useful reminder that sloppy drafting has real consequences — particularly in exclusionary language, where precision matters most. The phrase “and/or,” called “Janus-faced” by the Chicago Manual of Style and viewed with suspicion in Oregon and elsewhere, singlehandedly prevented the insurer from shedding coverage at summary judgment.
For policyholders in food safety and product liability matters, the ruling underscores that exclusions are construed narrowly against the insurer, and that ambiguous terms won’t be interpreted to strip coverage at an early stage. For insurers, it’s a clear signal: if you mean “or,” write “or.”
As food safety litigation continues to grow — and as communicable disease exclusions drafted in the COVID era find their way into new disputes — this case offers a useful roadmap for how courts will scrutinize the fine print.
For Policyholders:
For Insurers:
To discuss your specific insurance coverage issue, please contact Jacob M. Mihm. You can also learn more about him by visiting his LinkedIn profile.
Disclaimer: This article is provided for informational purposes only and does not constitute legal advice. Polales Horton & Leonardi LLP is experienced in handling complex insurance coverage matters on behalf of policyholders across the United States.
