INDEMNITY INSURANCE COMPANY OF NORTH AMERICA v. DEERE & COMPANY Complaint

8/3/2019 INDEMNITY INSURANCE COMPANY OF NORTH AMERICA v. DEERE & COMPANY Complaint

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Case: 2:ll-cv-00260-WAP-SAA Doc #: 1 Filed: 12/30/111 of 12 PagelD #: 1

IN THE UNITED STATES DISTRICT C OURTNORTHERN DISTRICT OF MISSISSIPPIDELTA DIVISION

F I L E DD E C 3 0 2 0 1 1

J2CWS, CLE"Deput

INDEMNITY INSURANCE COM PANYOF NORTH AMERICA, a Pennsylvaniacorporation, as subrogee of OMEGAPLANTATIONS PARTNERSHIP,

Plaintiff,vs.

DEERE & COMPANY, a Delawarecorporation,

Defendant.

CASE N O. ^ ( I C V ^ O - f - A

COMPLAINT FOR DAMAGES JURY TRIAL REQUESTED

Plaintiff Indemnity Insurance Company of North America ("IndemnityInsurance") herewith makes its complaint of the defendant Deere & Company("Deere"), respectfully showing the Court as follows:

Part ies

Plaintiff Indem nity Insurance is a corporation organized and existing under thelaws of the State of Pennsylvania with its principal place of business located at 436W alnut Street, Philadelphia, Pennsylvania 19106.


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Case: 2:ll-cv-00260-WAP-SAA Doc #: 1 Filed: 12/30/11 2 of 12 PagelD #: 2

2.Defendant Deere is a corporation organized and existing under the laws of the

State of Delaware with its principal place of business located at One John DeerePlace, M oline, Illinois 6126 5. Defendant D eere may be served by service upon itsregistered agent, C. T. Corporation System, 645 Lakeland East Drive, Suite 101,Flowood, Mississippi 39232.

Venue and Jurisdiction

This Court has jurisdiction over this civil action pursuant to 28 U.S.C. 1332(a)(1) as this matter is between citizens of different states and the amount incontroversy exceeds the sum of $75,000.00, exclusive of interest and costs.

Venue is proper for this action pursuant to 28 U.S.C. 1391(a) in that asubstantial part of the events or omissions giving rise to the claim occurred in thedistrict and division in which this action is brought.

Factual Predicate

At all times pertinent to this civil action, plaintiff Indemnity Insurance was aduly qualified property and casualty insurer doing business in the State ofMississippi.

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At all times pertinent to this civil action, plaintiff Indemnity Insurance insuredbusiness property and agricultural equipment belonging to Omega PlantationsPartnership, a Mississippi partnership with agricultural operations in a number oflocations, including Clarksdale, M ississippi. The insured equipm ent included threecotton pickers manufactured by defendant Deere.

Defendant Deere manufactured and placed into the stream of commerce threemodel 9996 6-row cotton pickers, bearing serial numbers N09996X020427,N09996X020485 andN09996X 020428.

8.On O ctober 22, 2009, the cotton picker bearing serial num ber N09996 X020427

ignited and burned, the fire destroying the cotton picker completely and leaving nosalvage value.

9.On November 2, 2009, cotton picker bearing serial number N09996X020485

ignited and burned, the fire destroying the cotton picker completely and leaving nosalvage value.

10.On November 4, 2009, cotton picker bearing serial number N09996X020428


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Case: 2: l l -cv-00260-WAP-SAA Doc #: 1 Filed: 12/30/11 4 of 12 PagelD #: 4

ignited and burned, the fire destroying the cotton picker com pletely and leaving nosalvage value.

11.During the period of time in which the preceding three fires occurred, a fourth

Deere cotton picker bearing serial number N09996X020418 also caught fire, butthe fire was detected early enough to permit extinguishment of the fire withoutsignificant damage to the cotton picker.

12.At all times prior to the fires, the cotton pickers were used in an appropriate,

normal and foreseeable manner and were maintained and cleaned properlyaccording to the recomm endations of defendant Deere.

13.Each of the fires originated in the same location in the 9996 cotton picker

structure, an obscured region between the lower rear of the engine and an adjacentframe cross member.

14.The area in which the fires originated are not readily accessible for cleaning,

even when following the recomm ended cleaning procedures outlined in the manualfor the 9996 cotton picker, as some disassembly of the components in this area isrequired to expose the area in which the fires o riginated.


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Case: 2: l l-cv-00260-WAP-SAA Doc #: 1 Filed: 12/30/11 5 of 12 Pag elD #: 5

15.Investigation disclosed that debris can and does accumulate in this obscured

region between the lower rear of the engine and an adjacent frame cross member.16.

This debris can and does include cotton lint that is drawn into the enginecompartment by normal and foreseeable operation of the cooling fan of the engine.

17.In older models of Deere cotton pickers (such as the 9960, 9965 and 9970),

cooling air for the engine was screened before it entered the engine compartmentand was blown out of the rear of the cotton picker and somewhat pressurized theengine compartment.

18.In the 9996 model cotton pickers at issue in this matter, the engine

compartment is not isolated or pressurized, and in fact the engine compartment hasnegative air pressure, resulting in greater intake of cotton lint and debris into theengine compartment.

19.Deere neither warned purchasers of the 9996 cotton picker about this change in

design nor recommended enhanced cleaning procedures to address the increasedintake of lint and debris into the engine compartment.


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20.The exhaust manifold of the 9996 cotton picker model can reach temperatures

as high as 900 degrees F. and thus is a competent ignition source for cotton lint anddebris.

21.Ignited lint and/or debris can then lodge in inaccessible areas of the engine

compartment where other lint and/or debris has accumulated, resulting in ignitionof that material and causing fire to spread to adjacent com bustible m aterials.

22.The design of the prior models of cotton picker manufactured by Deere

demonstrate that it was commercially feasible and practicable to design the enginecompartment of the cotton picker in such a way as to reduce the intake of cottonline and/or debris.

23.Other reasonable and feasible design alternatives include the use of an

insulating blanket, such as is used by Caterpillar in its trash compactor model826H, to protect the engine exhaust system from contact with combustible materialentering the engine compartment as a result of air flow and cooling.

24.The fires that destroyed the three 9996 cotton pickers insured by plaintiff were


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directly and proximately caused by design defects in the engine compartment ofthe cotton pickers and/or by the failure of Deere to provide adequate warnings andinstructions regarding cleaning that reflected the material increase of risk of firethat resulted from the change in design the permitted greater intake of lint and/ordebris into the engine com partment of the 9996 pickers.

25.Plaintiff Indemnity Insurance's insured, Omega Plantation Partnership, made

claim to Indemnity Insurance according to the terms of the contract of insurance,seeking indemnity for the loss of the three destroyed cotton pickers.

26.Plaintiff thereafter indemnified its insured in the total sum of $ 514,000.00,

which sum represented the fair market value of the three 9996 cotton pickers($169,000.00 as to the cotton picker bearing serial number N09996X020427,$176,000.00 as to the cotton picker bearing serial number N09996X020485 and$169,000.00 as to the cotton picker bearing serial num ber N 09996 X02 0428).

27.Plaintiffs insured assigned its rights of recovery against third parties to

plaintiff, and thus plaintiff has the right and standing to bring this action in its ownname in subrogation.


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First Claim for Relief Breach of Implied Warranty of M erchantability28.

Plaintiff re-alleges and incorporates herein the allegations of the precedingparagraphs to the same and full extent as if set out in full.

29.At the time of the sale of the three cotton pickers at issue in this civil action,

defendant D eere warranted that the cotton pickers were merchantable.30.

Defendant Deere could not, as a matter of Mississippi law, disclaim thewarranty of merchantability that attached to each of these cotton pickers uponmanufacture and sale.

31.The changes in design, resulting defects and failure to provide warnings or

adequate instruction rendered the 9996 cotton picker unmerchantable, in that itsdesign presented a materially increased risk of intake and accumulation ofcombustible lint and debris in the engine compartment and a material increase inthe risk of fire resulting from such intake and accumulation, neither of these risksbeing addressed by design, warnings or cleaning instructions.

32.Defendant Deere breached the warranty of merchantability with respect to each


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of the three cotton pickers at issue in this civil action.33.

The breach of the warranty of merchantability by Deere directly andproximately caused the damage to and destruction of the three cotton pickers atissue in this civil action, and directly and proximately caused plaintiff to incurdamage in the amount of $514 ,000.00.

34.Defendant Deere is therefore liable to plaintiff Indemnity Insurance in the

amount of $514,000.00 as damages for its breach of warranty.Second Claim for Relief Breach of W arranty of Fitness

for Particular Purpose35.

Plaintiff re-alleges and incorporates herein the allegations of the precedingparagraphs 1 through 27 to the same and full extent as if set out in full.

36.At the time of the sale of the three cotton pickers at issue in this civil action,

defendant Deere warranted that the cotton pickers were fit for the particularpurpose of cotton picking.

37.Defendant Deere could not, as a matter of Mississippi law, disclaim the


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. Case: 2:ll-cv-00260-WAP-SAA Doc #: 1 Filed: 12/30/1110 of 12 PagelD #: 10

warranty of fitness for particular purpose that attached to each of these cottonpickers upon manufacture and sale.

38.The changes in design, resulting defects and failure to provide warnings or

adequate instruction rendered the 9996 cotton picker unfit for the purpose of cottonpicking, in that its design presented a materially increased risk of intake andaccumulation of combustible lint and debris in the engine compartment and amaterial increase in the risk of fire resulting from such intake and accumulation,neither of these risks being addressed by design, warnings or cleaning instructions.

39.Defendant Deere breached the warranty of fitness for particular purpose with

respect to each of the three cotton pickers at issue in this civil action.40.

The breach of the warranty of fitness for particular purpose by Deere directlyand proximately caused the damage to and destruction of the three cotton pickers atissue in this civil action, and directly and proximately caused plaintiff to incurdamage in the amount of $514,000.00.

41.Defendant Deere is therefore liable to plaintiff Indemnity Insurance in the

amount of $514,000.00 as damages for its breach of warranty.

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WHEREFORE, having fully set forth its claims for relief, plaintiff IndemnityInsurance respectfully prays this Court:

a. that process issue for service upon the defendant;b. that it have and recover the sum of $514,000.00 from the

defendant Deere & Company as damages proximately caused bythe defendant's breaches of implied w arranty;

c. that all costs of this action be taxed to the defendant; andd. for such other and further relief as this Court may deem jus t and

proper.This the 29 th day of December, 2011.

Chafrles S\TindTEiHir~MississippiNBar No. 8223HeaKsj)oWlasM ississippi Bar No. 102313

Of Counsel:LAKE TINDALL, LLP127 S. Poplar StreetP . O . Box 918Greenville, M S 38702-0918Telephone: (662)378-2121Facsimile: (662)378-2183Email: ctindalliii^ltindall.comEmail: [email protected]

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mailto:[email protected]:[email protected]


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Of Counsel:Jefferson C. McConnaugheyC O Z E N O ' C O N N O RSunTrust Plaza, Suite 2200303 Peachtree Street N EAtlanta, Georgia 30308(404) 572-2000(404) 572-2199 (facsimile)[email protected] (email)

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mailto:[email protected]:[email protected]


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FILEDa s e : 2:ll-cv-00260-WAP-SAA Doc #: 1-1 Filed: 12/30/111 of 1 P a g e |J S 4 4 ( R e v 0 9 1 1 ) CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as r e i } c N l a f j ? e?f l ' 5 '1* s P rov 'by local rules of court. This form, approved by the Judicial Conference ofthe United States in September 1974, is required for the use ofthe Clerk of Coum onhe û fp oseb f initiathe civil docket sheet. (SEE INSTRUCTIONS ONNEXTPAGE OFTHIS F0RMhfS,lJ1r\^> J ' ll/'v/"? L 1 P Pr- t r j A v i l W v oI. ( a ) P L A I N T I F F SIndemnity Insurance Company ofNorth America, a Pennsylvaniacorporation, as subrogee ofOmega Plantations Partnership

(b ) County of Residence of First Listed Plaintiff Phi lad elp hia Coun ty , P A(EXCEPT IN U.S. PLAINTIFF CASES)

(c) Attorneys (Firm Name, Addressând Telephone NupiberiHeath S. Douglas, Charles S. Tindailf III, Lake Tindall, LLP, 127 S.Poplar Street, P. O. Box 918, Greenville, MS 38702, 662-378-2121

DEFENDANTSDeere & Company, a Delaware corporatioiCounty of Residence of First Listed Defendant Roc k Isl and Coun ty . IL

(IN U.S. PLAINTIFF CASES ONLY)NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION O

THE TRACT OF LAND INVOLVED.

Attorneys (If Known)

I I . B A S I S OFJ U R I S D I C T I O N (Place an "X" in One Box Only)O 1 U.S. Government

Plaintiff

2 U.S. GovernmentDefendant

G 3 Federal Question(U.S. Government No t a Party)

fit 4 Diversity(Indicate Citizenship ofParties in Item III)

I I I . C I T I Z E N S H I P O F P R I N C I P A L P A R T I E S (Place an "X" in One Box or (For Diversity Cases Only) and One Box or Defendant

PTF DEF PTF DECitizen of This State 1 1 Incorporated or Principal Place 4 4

of Business In This StateCitizen of Another State

Citizen or Subject of aForeign Country

O 2 D 2 Incorporated and Principal Placeof Business In Another State

O 3 O 3 Foreign Nation

5 ac 6 O

IV. NATURE OFSUIT1 CONTRACTO 110 InsuranceD 120 MarineD 130 Miller ActD 140 Negotiable InstrumentO 150 Recovery of Overpayment

& Enforcement of JudgmentD 151 Medicare ActO 152 Recovery of Defaulted

Student Loans(Excl. Veterans)

O 153 Recovery of Overpaymentof Veteran's Benefits

a 160 Stockholders' SuitsH 190 Other ContractO 195 Contract Product LiabilityD 196 Franchise

1 REAL PROPERTYO 210 Land Condemnationa 220 ForeclosureO 230 Rent Lease & EjectmentO 240 Torts toLandO 245 Tort Product Liability 290 All Other Real Property

(Place an "X" in One Box Only)TORTS

PERSONAL INJURYO 310 Airplane0 315 Airplane Product

LiabilityO 320 Assault, Libel &

SlanderO 330 Federal Employers'

Liability 340 MarineO 345 Marine Product

LiabilityO 350 Motor VehicleO 355 Motor Vehicle

Product LiabilityO 360 Other Personal

InjuryO 362 Personal Injury -

Med. MalpracticeCIVIL RIGHTS

O 440 Other Civil RightsO 441 VotingO 442 EmploymentO 443 Housing/

Accommodations0 445 Amer. w/Disabilities -

Employment0 446 Amer. w/Disabilities -

OtherO 448 Education

PERSONAL INJURY3 365 Personal Injury -

Product Liability 367 Health Care/PharmaceuticalPersonal InjuryProduct Liability

D 368 Asbestos PersonalInjury ProductLiability

PERSONAL PROPERTYO 370 Other FraudCI 371 Truth inLendingO 380 Other Personal

Property DamageO 385 Property Damage

Product LiabilityPRISOi ER PETITIONSG 510 Motions toVacate

SentenceHabeas Corpus:

O 530 GeneralO 535 Death PenaltyO 540 Mandamus & OtherO 550 Civil RightsO 555 Prison ConditionO 560 Civil Detainee-

Conditions ofConfinement

i O K H i n in I ' INM n 625 Drug Related Seizure

ofProperty21USC881 690 Other

1 \IIOHO 710 Fair Labor Standards

Actd 720 Labor/Mgmt. RelationsO 740 Railway Labor Act 751 Family and Medical

Leave ActO 790 Other Labor LitigationO 791 Empl. Ret. Inc.

Security Act

IMMII.U-MION3 462 Naturalization ApplicationO 463 Habeas Corpus -

Alien Detainee(Prisoner Petition)

O 465 Other ImmigrationActions

IHMvRI.PK.Y 422 Appeal 28 USC 158D 423 Withdrawal28 USC 157

I'KOPER 1 V RIGHTS. 820 CopyrightsO 830 Patent 840 Trademark

MX/I U. SECURITYa 861 HIA (1395ff) 862 Black Lung (923)D 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g))

FEDERAL TAX SUMSO 870 Taxes (U.S. Plaintiff

or Defendant)O 871 IRSThird Party

26 USC 7609

OTHER STATUTESaaaDDaaaaaooDaDD

D

375 False Claims Act400 State Reapportionment410 Antitrust430 Banks and Banking450 Commerce460 Deportation470 Racketeer Influenced a

Corrupt Organizations480 Consumer Credit490 Cable/Sat TV850 Securities/Commoditie

Exchange890 Other Statutory Action891Agricultural Acts893 Environmental Matters895 Freedom of Information

Act896 Arbitration899 Administrative Procedu

Act/Review or AppealAgency Decision

950 Constitutionality ofState Statutes

(Place an "X" in On e Box Only). O R I G I NSt 1 Original O 2 Removed from

Proceeding State CourtTransferred fromO 3 Remanded from O 4 Reinstated or O 5 ntu Harriet a 6 MultidistrictAppellate Court Reopened (smciM Litigation

VI. CAUSE OF ACTIONCite the U.S. Civil Statute under which you are filing (D o not cite urisdictional statutes unless diversity).28 U.S.C. 1332Brief description of cause:Breach of warranty action related to defective cotton pickers.

V I I . R E Q U E S T E D I N CHECK IF THIS IS A CLASS ACTI ON DEMAN DSC O M P L A I N T : UNDER F R C P . 23

VIII. RELATED CASE(S)IF ANY

-$5-4 4 , 0 0 0 . 0 0CHECK YES only if demanded in complaint:JU RY DEMAN D: OC Yes O No

(See instructions): JUDGE DOCKET NUMBERDATE

ICE USE ONLY

SIGNATURE OF ATTORNEY OBRECORD\V

FOR OFFICE

RECEIPT # { G QQ AMOUNT ^ \ y Q . Q [ } APPLYING IFP JUDGE WÔDC^ MAG IUDGE jj(Hj(f xL&
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INDEMNITY INSURANCE COMPANY OF NORTH AMERICA v. DEERE & COMPANY Complaint