Archer Daniels Midland Company et al v. Research Fumigation Co., LLC et al

Filing 47

ORDER AND REASONS denying 29 Motion to Strike. Signed by Judge Eldon E. Fallon on 3/16/2018. (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

ARCHER DANIELS MIDLAND COMPANY ET AL

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CIVIL ACTION

VERSUS

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NO. 17-6511

RESEARCH FUMIGATION CO., LLC ET AL.

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SECTION L (3)

ORDER & REASONS
Before the Court is Plaintiffs’ Motion to Strike Witness(es) of Imperium Insurance Co.,
R. Doc. 29. Defendant Imperium responds in opposition. R. Doc. 38. Having considered the
parties’ arguments and the applicable law, the Court issues this Order & Reasons.
I.

BACKGROUND
This case arises from fire damage to Plaintiffs’ cargo and vessel allegedly caused by

Defendant’s improper application of fumigant. R. Doc. 1. Plaintiff Archer-Daniels-Midland
Company (“ADM”) owns and operates export grain facilities on the Mississippi River. R. Doc. 1
at 3. Plaintiff ADM has contracted with Defendant Research Fumigation Co. (“RFC”) to provide
regular fumigation services. R. Doc. 1 at 3. Pursuant to this contract, Defendant fumigated grain
cargo that had been loaded onto the M/V LORENTZOS. R. Doc. 1 at 6. The M/V LORENTZOS
left Destrahan, Louisiana on July 9, 2016 to deliver the cargo to South Korea. R. Doc. 1 at 6. On
July 25, 2016, an alarm sounded on the ship and the crew discovered possible smoldering and/or
fire in one of the cargo holds. R. Doc. 1 at 6. On August 17, 2016 the M/V LORENTZOS arrived
in South Korea. R. Doc. 1 at 7. On August 18, 2016 the cargo holds were opened and large amounts
of smoke left the holds; the vessel’s crew also observed that the cargo was on fire. R. Doc. 1 at 7.
Plaintiffs allege that surveyors observed fumigation residue and fire damage and that it was
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caused by improper application of the fumigant by Defendant. R. Doc. 1 at 7. Plaintiffs claim that
Defendants are liable to Plaintiff for the damages to the cargo and the vessel resulting from the
fire. R. Doc. 1 at 7. Plaintiffs allege that Defendant Imperium Insurance Company (“IIC”) is liable
to Plaintiff for the damages because Plaintiff is listed as an additional insured on Defendant RFC’s
insurance policy from Defendant IIC. R. Doc. 1 at 4.
Defendants RFC and IIC timely answered the complaint and generally denied the
allegations. R. Doc. 8. Defendant RFC argues that it applied the fumigant in accordance with U.S.
Department of Agriculture guidelines. R. Doc. 8 at 4. Defendant RFC also posited a number of
affirmative defenses, including lack of standing, prescription, and failure to state a claim. R. Doc.
8 at 6. Defendant RFC further alleges that the damage was the result of Plaintiff’s negligence, the
negligence of another intervening party, or the self-combustible nature of the grain cargo. R. Doc.
8 at 6-8.
With permission of the Court, Defendant IIC filed an amended answer. R. Doc. 16.
Defendant IIC generally denies the allegations. R. Doc. 16. IIC also alleges twenty-one affirmative
defenses including: failure to state a claim upon which relief can be granted, all defenses of other
defendants, failure to mitigate damages, and limitations or exclusions of the insurance policy. R.
Doc. 16.
II.

PENDING MOTION
Plaintiffs ask the Court to strike the witnesses of Defendant Imperium because Imperium

has failed to provide these witnesses in its witness list. R. Doc. 29. Plaintiffs allege that Imperium
has only listed a generic title for its witness and asks that Imperium be required to name the witness
so that Plaintiffs may depose the witness prior to trial. R. Doc. 29 at 3-4.
Imperium argues that Plaintiffs’ claim is not ripe because Imperium’s defense obligations
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are only triggered by a lawsuit against Plaintiffs and Imperium’s indemnification obligations are
only triggered by liability. R. Doc. 39 at 3. Plaintiff has not yet been sued and has not incurred any
liability for damages. Imperium argues that because it is unclear what the suit or indemnity will be
it cannot identify a particular witness at this time. R. Doc. 39 at 3.
III.

LAW & ANALYSIS
Generally, by the given deadline, parties must name the witnesses that they may call at the

trial. Naming witnesses by a deadline allows each side to properly prepare and discover the case
by allowing them to depose potential witnesses. However, this is a unique case. Here, Plaintiffs
have filed a lawsuit claiming defense and indemnity but has failed to provide sufficient information
regarding the suit to be defended against and the liability to be indemnified. Therefore, Defendant
is unable to specify its witness because it does not yet know the nature of the Plaintiffs’ claims.
Because Plaintiffs have failed to provide this information, Plaintiffs have caused the situation they
now wish to remedy with a motion to strike. Therefore, the Court finds it would be unfair to dismiss
Imperium’s potential witness before it is given sufficient information to determine who that
witness may be.
IV.

CONCLUSION
For the foregoing reasons, IT IS ORDERED that Plaintiffs’ Motion to Strike, R. Doc.

29, is DENIED.
New Orleans, Louisiana, this 16th day of March, 2018.

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UNITED STATES DISTRICT JUDGE

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