American Home Assurance Company et al v. Greater Omaha Packing Company Inc.

Filing 493

ORDER denying 480 motion to exclude certain invoice terms and conditions that defendant seeks to offer at trial. Ordered by Senior Judge Lyle E. Strom. (JDR)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
AMERICAN HOME ASSURANCE
COMPANY and CARGILL MEAT
SOLUTIONS CORPORATION,

)
)
)
)
Plaintiffs,
)
)
v.
)
)
GREATER OMAHA PACKING COMPANY,)
INC.,
)
)
Defendant.
)
______________________________)

8:11CV270

MEMORANDUM AND ORDER

This matter is before the Court on plaintiff Cargill
Meat Solution’s (“Cargill”) motion to exclude certain invoice
terms and conditions that defendant Greater Omaha Packing Company
(“GOPAC”) seeks to offer at trial (Filing No. 480).
I. Background
GOPAC started selling beef to Cargill as part of
Cargill’s “approved supplier program” in 2007.

This program

involved a specific contract between the parties that included
specific guarantees that the shipments would be -- among other
things -- “not adulterated” and “able to be legally transported
or sold.”

The agreement also provided for damages “that are a

direct and proximate result of [GOPAC]’s actions.”

In the fall

of 2007, a substantial amount of beef traced to Cargill was
recalled due to multiple instances of consumers contracting E.

coli.

Cargill alleges that the tainted meat was supplied to

Cargill by GOPAC and has brought suit on the basis of the
explicit guarantee in the parties’ contract as well as implied
warranty of merchantability and implied warranty of fitness for a
particular purpose.
The present motion involves invoices that GOPAC claims
to have sent to Cargill contemporaneous to every shipment of meat
-- some 350 up to and including the allegedly contaminated
shipment.

Said invoices included a page entitled “TERMS AND

CONDITIONS OF SALE” that states “THIS WARRANTY IS THE EXCLUSIVE
WARRANTY PROVIDED AND IS EXPRESSLY IN LIEU OF ANY OTHER
WARRANTIES EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY
WARRANTY OF MERCHANTABILITY, CONDITION, OR FITNESS FOR A
PARTICULAR PURPOSE or use.”

The invoice also limits GOPAC’s

liability to the price of the goods sold and claims to be the
exclusive agreement regarding the sale.

Cargill claims not to

have received any such invoices and produced no such invoices in
response to discovery requests.

Cargill also asserts that

discovery served on other GOPAC customers did not yield any
invoices.

The parties also dispute whether it was GOPAC’s policy

to send the invoices before, after, or contemporaneously with the
shipments of product -- an act that would constitute full
performance of the contract.
-2-

II. Analysis
As a preliminary matter, GOPAC argues that the motion
in limine to exclude the invoices should be treated as a latefiled motion for summary judgment because it seeks the resolution
of legal issues outside of simple relevance calculations.

The

substance of the motion will determine whether the Court will
construe it as motion for summary judgment or a motion in limine.
See Bliss v. BNSF Rwy. Co., No. 4:12CV3019, 2013 WL 5570231, at
*2 (D. Neb. Oct. 9, 2013).

“A motion in limine is ‘any motion,

whether made before or during trial, to exclude anticipated
prejudicial evidence before the evidence is actually offered.’”
Id. (citing Louzon v. Ford Motor Co., 718 F.3d 556, 561 (6th Cir.
2013).

“A motion in limine is used ‘to narrow the evidentiary

issues for trial and to eliminate unnecessary trial
interruptions;’ in contrast, a motion for summary judgment is a
mechanism for resolving non-evidentiary matters prior to trial.”
Id.
Cargill argues that the invoices are non-probative and
prejudicial because the disclaimers contained therein are
ineffective.

However, the sole reason GOPAC intends to submit

the invoices is to prove its affirmative defense against the
warranty claims.

Thus, in order for the Court to determine

whether the invoices are relevant, the Court must do more than
-3-

simply weigh the probative value against the potential for
prejudice.

Rather, Cargill asks that the Court to resolve a

legal issue that is central to the merits of the case:

whether

the warranties are effective and, in turn, whether GOPAC’s
affirmative defense is valid.

The resolution of such legal

issues is the purpose and function of summary judgment, and the
deadline for summary judgment motions has passed.

Further,

whether the disclaimers are fully effective depends on certain
facts, some of which are contested and some of which have not
been fully developed for the Court.

At this point in the

proceedings, the effectiveness of the disclaimers is an issue
best left for resolution at trial.

Accordingly,

IT IS ORDERED that plaintiff’s motion is denied.
DATED this 22nd day of July, 2014.
BY THE COURT:
/s/ Lyle E. Strom
_____________________________
LYLE E. STROM, Senior Judge
United States District Court

-4-