I never imagined that I would discuss insurance and Alpha-Bits cereal again.  But the opportunity has arisen.   

In Post Holdings v. Liberty Mutual Fire Insurance Company, No. 18-1741 (E.D. Mo. Oct. 30, 2020), the Missouri federal court addressed coverage for Post Holdings, maker of numerous breakfast cereals, for a putative class action alleging – as described by the court -- that it “actively maintains a policy and practice of labeling high-sugar cereals . . . with various health and wellness claims that suggest the cereals are healthy, when they are not.”  According to the court, the complaint alleges that, “when buying Post cereals, the plaintiffs were seeking to buy those that were ‘healthy to consume,’ but Post’s misrepresentations induced them to buy ‘products [that] are not healthy . . . instead their consumption increases the risk of CHD, stroke, and other morbidity.’”  Again, according to the court: “The Complaint alleges that, as a result of Post’s practices, the named plaintiffs themselves ‘suffered bodily injury in the form of increased risk of CHD, stroke, and other morbidity.’”

At the heart of the coverage dispute was whether the underlying complaint seeks damages for “bodily injury,” to trigger coverage under the cereal maker’s commercial general liability policy.  The court held that it did not.  Rather, the court interpreted the underlying complaint as alleging that, eating Post’s cereals, could result in bodily injury in the future:

“Although the Krommenhock Suit contains references to ‘bodily injury,’ upon analysis, it is abundantly clear that no ‘bodily injury’ is alleged to have been sustained by the Krommenhock plaintiffs. The allegations in the underlying suit detail that there is a chance someone eating the sugary cereals may develop certain conditions as a result, but nowhere contained in the allegations do the Krommenhock plaintiffs claim they have actually suffered any of the potential conditions.”

Being a Curious George type, I wondered which cereals were at issue in the underlying litigation.  So I got a copy of the complaint.  There are many, including Bran Flakes, Honey-Comb and Raisin Bran [WHAT? Raisin Bran!].  And what do you know, right there at paragraph 225: Alpha-Bits in the plaintiff’s cross-hairs.  Note to any plaintiff’s attorneys who eat insurance companies for breakfast: be careful.