What Defends You

Your Lease and Your Insurance: Where Pest Duties and Pest Claims Land

Written for: Restaurant tenants and their landlords, multi-unit operators, insurers and brokers, counsel on either side

Parts of this page marked Professional synthesis, not law are a Board Certified Entomologist's reading of published records. They are not legal rules, they are not legal advice, and they are written to read the same for an owner, a customer, or either side's counsel.

Two documents sit in a drawer in most restaurants and decide more about pests than any statute: the lease, which says who fixes the building, and the liability policy, which says who pays when a customer is hurt. This page describes what the published decisions say about each. It does not advise on either; the lease and the policy are the documents, and counsel and a broker are the readers.

The lease: who fixes the back door

The pest problems a restaurant cannot fix itself are building problems: the gap under an exterior door, the hole where the gas line enters, the dock seal, the roof penetration the sparrows found. Whether those are the tenant’s or the landlord’s to fix is a question the lease answers, clause by clause.

Utah’s courts have not decided a case allocating pest control between a restaurant tenant and a landlord; none was found in the searches run for this site. What Utah has decided is that a commercial tenant’s duty to pay rent is tied to the landlord’s performance of the covenants that mattered:

We find that the principles announced in Wade in the context of residential leases are equally applicable to the commercial context. — Richard Barton Enterprises, Inc. v. Tsern, 928 P.2d 368 (Utah 1996)

In sum, we hold that the lessee’s covenant to pay rent is dependent on the lessor’s performance of covenants that were a significant inducement to the consummation of the lease or to the purpose for which the lessee entered into the lease. — Richard Barton Enterprises, Inc. v. Tsern, 928 P.2d 368 (Utah 1996)

Only a significant breach of a covenant material to the purpose for which the lease was consummated justifies a lessee in abating rent. Temporary or minor breaches of routine covenants by a lessor do not. — Richard Barton Enterprises, Inc. v. Tsern, 928 P.2d 368 (Utah 1996)

Tsern was a freight elevator, not a pest, and the court did not adopt an implied warranty of suitability for commercial premises. The residential warranty of habitability from Wade v. Jobe is, by its own terms, residential:

It is based on the theory that the residential landlord warrants that the leased premises are habitable at the outset of the lease term and will remain so during the course of the tenancy. — Wade v. Jobe, 818 P.2d 1006 (Utah 1991)

A New York trial court said the same of that state’s statutory warranty in a pizza-shop lease case, which is quoted here only as an example of how other courts have drawn the line, not as Utah law:

The warranty of habitability contained in Real Property Law § 235-b is applicable only to residential tenants. — Manhattan Mansions v. Moe’s Pizza, 149 Misc. 2d 43 (N.Y. Civ. Ct. 1990), trial-level

What this site will not say: that Utah commercial tenants have no implied protections (no Utah court has held that), or that they have a habitability warranty (no Utah court has held that either). What governs is the lease.

Professional synthesis, not law. Before signing or renewing, a restaurant tenant should know which of these the lease assigns to whom: exterior doors, thresholds and sweeps; exterior wall and roof penetrations; dock and dumpster enclosure; shared drains and grease interceptor; pest control service itself, and whether the landlord’s vendor or the tenant’s does the work. The Exclusion Walk lists the physical items; the lease lists the owner of each. When a pest line on an inspection report is caused by a building item the lease puts on the landlord, the dated written notice to the landlord, kept in the Records Binder, is the record that matters.

Insurance: what a liability policy does with a pest claim

A commercial general liability policy is the policy a customer’s injury claim is usually tendered to. In the one published pest-bite decision, the restaurant’s position was recited by the court this way:

the Mission Inn asserts, “Injury claims (including alleged insect bites) are covered by [the Mission Inn’s] commercial general liability insurance.” — Coyle v. Historic Mission Inn Corp., 24 Cal. App. 5th 627 (Cal. Ct. App. 2018)

The published disputes are about pesticides, not pests: when a pest control application injures someone, insurers have invoked the pollution exclusion, and state supreme courts have read it opposite ways. California’s Supreme Court, in a case where a tenant’s death was blamed on pesticide applied for yellow jackets, quoted the policy’s insuring clause and exclusion:

That policy obligated the insurer to pay “all sums for which [the insured] become[s] legally obligated to pay as damages caused by bodily injury, property damage or personal injury.” — MacKinnon v. Truck Insurance Exchange, 31 Cal. 4th 635 (Cal. 2003)

We do not cover Bodily Injury or Property Damage (2) Resulting from the actual, alleged, or threatened discharge, dispersal, release or escape of pollutants: (a) at or from the insured location. — MacKinnon v. Truck Insurance Exchange, 31 Cal. 4th 635 (Cal. 2003), quoting the policy

and held that the exclusion did not reach ordinary negligence with a pesticide:

the pollution exclusion in question does not plainly and clearly exclude ordinary acts of negligence involving toxic chemicals such as pesticides. — MacKinnon v. Truck Insurance Exchange, 31 Cal. 4th 635 (Cal. 2003)

Florida’s Supreme Court, reading a similar exclusion in a case about insecticide sprayed from the air onto two men, went the other way:

We reject Land-O-Sun’s premise that when used properly Ethion causes no harm and is not a pollutant. It can obviously cause harm when it is not used properly. Thus, the pollution exclusion of the Florida Farm Bureau policy clearly precludes coverage for the incident — Deni Associates of Florida, Inc. v. State Farm Fire & Casualty Insurance Co., 711 So. 2d 1135 (Fla. 1998)

Neither decision quotes the standard industry form by its form number; both quote the insurer’s own wording. No Utah decision on the question was captured. What this site will say is only this: the outcome turned on the policy’s wording and on the state, and a restaurant that wants to know what its own policy does with a pest claim or a pesticide claim has to read that policy with its broker. Product-contamination and foodborne-illness coverages are separate products with their own terms, and are not described here.

What this means for a restaurant

Professional synthesis, not law.

1. Read the lease for the building items, before the inspection, not after. The back-door gap is the most common pest line in the county. Knowing today whose door it is saves thirty days of argument when it is on a report.
2. Put landlord items in writing, with dates. Under Tsern, what matters is whether a covenant was significant and whether the breach was significant; the dated notice is how that is shown either way.
3. Ask the broker two questions. Does the general liability policy respond to a customer’s pest-related injury claim, and does it have a pollution or contamination exclusion that an insurer might read to reach a pesticide application on the premises. The answers are in the policy, and this site does not know them.