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

FILED
IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF MISSISSIPPI DELTA DIVISION INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, a Pennsylvania corporation, as subrogee of OMEGA PLANTATIONS PARTNERSHIP, Plaintiff, vs. DEERE & COMPANY, a Delaware corporation, Defendant. CASE NO. ^(ICV^O-f-A DEC 3 0 2011
J2CWS, CLERK
"Deputy"

COMPLAINT FOR DAMAGES JURY TRIAL REQUESTED

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

Plaintiff Indemnity Insurance is a corporation organized and existing under the laws of the State of Pennsylvania with its principal place of business located at 436 Walnut Street, Philadelphia, Pennsylvania 19106.

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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 Deere Place, Moline, Illinois 61265. Defendant Deere may be served by service upon its registered 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 in controversy 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 a substantial part of the events or omissions giving rise to the claim occurred in the district and division in which this action is brought. Factual Predicate

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

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At all times pertinent to this civil action, plaintiff Indemnity Insurance insured business property and agricultural equipment belonging to Omega Plantations Partnership, a Mississippi partnership with agricultural operations in a number of locations, including Clarksdale, Mississippi. The insured equipment included three cotton pickers manufactured by defendant Deere.

Defendant Deere manufactured and placed into the stream of commerce three model 9996 6-row cotton pickers, bearing serial numbers N09996X020427, N09996X020485 andN09996X020428. 8. On October 22, 2009, the cotton picker bearing serial number N09996X020427 ignited and burned, the fire destroying the cotton picker completely and leaving no salvage value. 9. On November 2, 2009, cotton picker bearing serial number N09996X020485 ignited and burned, the fire destroying the cotton picker completely and leaving no salvage value. 10. On November 4, 2009, cotton picker bearing serial number N09996X020428

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ignited and burned, the fire destroying the cotton picker completely and leaving no salvage 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, but the fire was detected early enough to permit extinguishment of the fire without significant 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 properly according to the recommendations 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 adjacent frame cross member.
14.

The area in which the fires originated are not readily accessible for cleaning, even when following the recommended cleaning procedures outlined in the manual for the 9996 cotton picker, as some disassembly of the components in this area is required to expose the area in which the fires originated.

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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 engine compartment 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 compartment and was blown out of the rear of the cotton picker and somewhat pressurized the engine 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 has negative air pressure, resulting in greater intake of cotton lint and debris into the engine compartment. 19. Deere neither warned purchasers of the 9996 cotton picker about this change in design nor recommended enhanced cleaning procedures to address the increased intake 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 and debris. 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 ignition of that material and causing fire to spread to adjacent combustible materials. 22. The design of the prior models of cotton picker manufactured by Deere demonstrate that it was commercially feasible and practicable to design the engine compartment of the cotton picker in such a way as to reduce the intake of cotton line 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 model 826H, to protect the engine exhaust system from contact with combustible material entering 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 of the cotton pickers and/or by the failure of Deere to provide adequate warnings and instructions regarding cleaning that reflected the material increase of risk of fire that resulted from the change in design the permitted greater intake of lint and/or debris into the engine compartment 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 number N09996X020428). 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 own name in subrogation.

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First Claim for Relief Breach of Implied Warranty of Merchantability 28. Plaintiff re-alleges and incorporates herein the allegations of the preceding paragraphs 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 Deere warranted that the cotton pickers were merchantable. 30. Defendant Deere could not, as a matter of Mississippi law, disclaim the warranty of merchantability that attached to each of these cotton pickers upon manufacture 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 its design presented a materially increased risk of intake and accumulation of combustible lint and debris in the engine compartment and a material increase in the risk of fire resulting from such intake and accumulation, neither of these risks being 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 and proximately caused the damage to and destruction of the three cotton pickers at issue in this civil action, and directly and proximately caused plaintiff to incur damage 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 Warranty of Fitness for Particular Purpose 35. Plaintiff re-alleges and incorporates herein the allegations of the preceding paragraphs 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 particular purpose of cotton picking. 37. Defendant Deere could not, as a matter of Mississippi law, disclaim the

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warranty of fitness for particular purpose that attached to each of these cotton pickers 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 cotton picking, in that its design presented a materially increased risk of intake and accumulation of combustible lint and debris in the engine compartment and a material 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 directly and proximately caused the damage to and destruction of the three cotton pickers at issue in this civil action, and directly and proximately caused plaintiff to incur damage 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 Indemnity Insurance 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 by the defendant's breaches of implied warranty; c. that all costs of this action be taxed to the defendant; and d. for such other and further relief as this Court may deem just and proper. This the 29th day of December, 2011. Chafrles S\TindTEiHir~ MississippiNBar No. 8223 HeaKsj)oWlas Mississippi Bar No. 102313 Of Counsel: LAKE TINDALL, LLP 127 S. Poplar Street P.O. Box 918 Greenville, MS 38702-0918 Telephone: (662)378-2121 Facsimile: (662)378-2183 Email: ctindalliii^ltindall.com Email: hdouglas@ltindall.com

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Of Counsel: Jefferson C. McConnaughey

COZEN O'CONNOR

SunTrust Plaza, Suite 2200 303 Peachtree Street NE Atlanta, Georgia 30308 (404) 572-2000 (404) 572-2199 (facsimile) jmcconnaughey@cozen.com (email)

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Case: 2:ll-cv-00260-WAP-SAA Doc #: 1-1 Filed: 12/30/111 of 1 Page| JS 44 (Rev 09 11) CIVIL COVER SHEET

FILED

The 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 ?fl'5'1* s P r o v 'ded 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 C o u m o n h e ^ u f p o s e b f initiating the civil docket sheet. (SEE INSTRUCTIONS ONNEXTPAGE OFTHIS F0RMhfS,lJ1r\^> J ' ll/'v/"? L 1 P PrtrjAvilWvo I. ( a ) PLAINTIFFS

Indemnity Insurance Company of North America, a Pennsylvania corporation, as subrogee of Omega Plantations Partnership
(b) County of Residence of First Listed Plaintiff Philadelphia County, PA (EXCEPT IN U.S. PLAINTIFF CASES)

DEFENDANTS Deere & Company, a Delaware corporatioi

County of Residence of First Listed Defendant R o c k Island C o u n t y . IL (IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

(c)

Attorneys (Firm Name, Address^and Telephone Nupiberi

Attorneys (If Known)

Heath S. Douglas, Charles S. Tindailf III, Lake Tindall, LLP, 127 S. Poplar Street, P. O. Box 918, Greenville, MS 38702, 662-378-2121
II. B A S I S O F J U R I S D I C T I O N O 1 U.S. Government Plaintiff (Place an "X" in One Box Only) 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 for Plaintiff) (For Diversity Cases Only) and One Box for Defendant) PTF DEF PTF DEF Citizen of This State 1 1 Incorporated or Principal Place 4 4 of Business In This State Citizen of Another State Citizen or Subject of a Foreign Country O 2 O 3 D 2 O 3 Incorporated and Principal Place of Business In Another State Foreign Nation

G 3 Federal Question (U.S. Government Not a Party)

U.S. Government Defendant

fit 4 Diversity (Indicate Citizenship ofParties in Item III)

5
6

ac 5
O 6

IV. NATURE OF SUIT

1 O D D D O D O CONTRACT 110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment & Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted Student Loans (Excl. Veterans) 153 Recovery of Overpayment of Veteran's Benefits 160 Stockholders' Suits 190 Other Contract 195 Contract Product Liability 196 Franchise

(Place an "X" in One Box Only) TORTS O 0 O O O O O O O PERSONAL INJURY 310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers' Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury 362 Personal Injury Med. Malpractice CIVIL RIGHTS 440 Other Civil Rights 441 Voting 442 Employment 443 Housing/ Accommodations 445 Amer. w/Disabilities Employment 446 Amer. w/Disabilities Other 448 Education PERSONAL INJURY 3 365 Personal Injury Product Liability 367 Health Care/ Pharmaceutical Personal Injury Product Liability D 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY O 370 Other Fraud CI 371 Truth in Lending O 380 Other Personal Property Damage O 385 Property Damage Product Liability PRISOiER PETITIONS G 510 Motions to Vacate Sentence Habeas Corpus: O 530 General O 535 Death Penalty O 540 Mandamus & Other O 550 Civil Rights O 555 Prison Condition O 560 Civil DetaineeConditions of Confinement

iOKH i n in I'INM n 625 Drug Related Seizure ofProperty21USC881 690 Other

IHMvRI.PK.Y 422 Appeal 28 USC 158 D 423 Withdrawal 28 USC 157 I'KOPER 1 V RIGHTS. 820 Copyrights O 830 Patent 840 Trademark

OTHER STATUTES

a a a D
D

O a H O D

1 O a O O O

REAL PROPERTY 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property

1 \IIOH O 710 Fair Labor Standards Act d 720 Labor/Mgmt. Relations O 740 Railway Labor Act 751 Family and Medical Leave Act O 790 Other Labor Litigation O 791 Empl. Ret. Inc. Security Act

MX/I U. SECURITY a 861 HIA (1395ff) 862 Black Lung (923) D 863 DIWC/DIWW (405(g))

a a a a a o o D a
D D

864 S I Title X I SD V
865 RSI (405(g))

O O O O 0 0 O

FEDERAL TAX SUMS O 870 Taxes (U.S. Plaintiff or Defendant) O 871 IRSThird Party 26 USC 7609

375 False Claims Act 400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and Corrupt Organizations 480 Consumer Credit 490 Cable/Sat TV 850 Securities/Commodities/ Exchange 890 Other Statutory Actions 891 Agricultural Acts 893 Environmental Matters 895 Freedom of Information Act 896 Arbitration 899 Administrative Procedure Act/Review or Appeal of Agency Decision 950 Constitutionality of State Statutes

IMMII.U-MION 3 462 Naturalization Application O 463 Habeas Corpus Alien Detainee (Prisoner Petition) O 465 Other Immigration Actions Transferred from 5 ntu Harriet (smciM

V. O R I G I N St 1 Original Proceeding

(Place an "X" in One Box Only) 2 Removed from O 3 State Court

Remanded from Appellate Court

O 4 Reinstated or Reopened

Multidistrict Litigation

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity).

VI. CAUSE OF ACTION

VII. R E Q U E S T E D I N COMPLAINT:

28 U.S.C. 1332
Brief description of cause:

Breach of warranty action related to defective cotton pickers.

CHECK IF THIS IS A CLASS ACTION UNDER F R C P . 23 (See instructions): DEMANDS CHECK YES only if demanded in complaint: JURY DEMAND: OC Yes O No

-$5-4 4 , 0 0 0 . 0 0

VIII. RELATED CASE(S) IF ANY

DATE

JUDGE SIGNATURE OF ATTORNEY OBRECORD

DOCKET NUMBER

\V
ICE FOR OFFICE USE ONLY RECEIPT # { G QQ AMOUNT ^ \ y Q . Q [ } APPLYING IFP

JUDGE W^ODC^

MAG IUDGE

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