`
`IN THE UNITED STATES DISTRICT COURT FoR THà
`SO U T H E R N D ISTR IC T O F FL O R ID A
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`FILED B
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`D.C.
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`SEF 1 9 201S
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`t'/krLll lîtkk s o,ouw .v.A
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`D EL M O N TE FRESH PR O D UC E
`N .A ., IN C ., a Florida corporation
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`Plaintiff,
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`V .
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`C A SE N O .:
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`AM C O IN SUR AN C E CO M PA N Y
`an O hio corporation; and
`TH E M IDW EST 'S BEST
`P R O D U C E C O M PA N Y ,
`a M issouri corporation
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`D efendants.
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`C O M PL A IN T FO R D EC L A R A T O R Y JU D G M EN T
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`DEL M ONTE FRESH PRODUCE N.A., INC. C DeI M ontess) tsles this
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`Com plaint for D eclaratory Judgm ent against defendants A M C O IN SUR A NC E
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`COM PANY (<<AM CO '') and THE M IDW EST'S BEST PRODUCE
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`COM PANY D/B/A M IDW EST BEST PRODUCE, INC C M idwest Bestsg)
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`pursuant to Rule 57 of the Federal Rules of Civil Procedure and 28 U .S.C. jj 1332
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`and 2201 et seq., seeking a declaration that D el M onte is an additional insured
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`under liability policies of insurance issued to M idw est B est by A M CO , and that
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`A M CO has a direct and im m ediate obligation to defend and indem nify D el M onte
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`under those policies for a1l claim s against it.
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`Case: 4:20-cv-00500-DDN Doc. #: 1 Filed: 09/19/19 Page: 2 of 15 PageID #: 2
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`PA R T IE S
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`Plaintiff D el M onte is a dom estic corporation organized and existing
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`under the law s of the state of Florida w ith its principal place of business in Coral
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`G ables, Florida, and is a corporate citizen of the State of Florida.
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`2.
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`D efendant A M CO is a corporation organized and existing under the
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`law s of the State of Iow a w ith its principal place of business in Des M oines, Iowa
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`and is a corporate citizen of the State of lowa.
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`D efendant M idw est Best is a corporation organized and existing under
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`the law s of the State of M issouri w ith its principal place of business in St. Louis,
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`M issouri, and is a corporate citizen of the State of M issouri.
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`JU R ISD IC TIO N A N D V E N U E
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`4. This Court has jurisdiction of this dispute based upon Rule 57 of the
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`Federal Rules of Civil Procedure and 28 U.S.C. j 2201 et.seq. and 28 U .S.C. j
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`1332. A n actual controversy exists as to w hether A M CO has a direct and
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`im m ediate duty to defend and indem nify D el M onte for claim s asserted by various
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`consumers against Del M onte for bodily injury allegedly occurring from
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`contam inated vegetables provided by M idw est B est to D el M onte for distribution
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`to those consum ers, including claim s asserted in tw o underlying law suits and in
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`connection with non-lawsuit claim s asserted by 174 claim ants (ttunderlying Suits
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`Case: 4:20-cv-00500-DDN Doc. #: 1 Filed: 09/19/19 Page: 3 of 15 PageID #: 3
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`and Claim s''). True and accurate copies of the complaints in the two underlying
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`law suits are attached as Exhibits A and B.
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`The states of citizenship of D el M onte, A M CO and M idw est Best are
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`com pletely different and diverse.
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`6. The amount in controversy exceeds the minim um jurisdiction am ount
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`of $75,000. The policy lim its at issue in this case, the claim s for com pensatory and
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`punitive dam ages alleged against D el M onte in the U nderlying M atters for which it
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`seeks
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`Coverage,
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`and the am ount of attorney's fees and expenses that w ill be
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`incurred by D el M onte for the defense of the underlying law suits each exceed
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`$75,000, exclusive of interest and costs. 28 U .S.C. j 1446; 28 U .S.C. j 1332 (a).
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`V enue is proper in this Court because defendants do business in this
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`judicial district, are subject to the Court's personal jurisdiction, and a substantial
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`part of the events or omissions giving rise to the claim occurred in this judicial
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`district. 28 U.S.C. j 1391.
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`FA C T U A L A L L E G A T IO N S
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`A . D eI M onte's R elationship w ith M idw est B est
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`8.
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`D el M onte is one of N orth A m erica's leading vertically integrated
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`producers, m arketers and sellers of quality fresh and fresh-cut fruits and
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`vegetables.
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`Case: 4:20-cv-00500-DDN Doc. #: 1 Filed: 09/19/19 Page: 4 of 15 PageID #: 4
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`9.
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`Onc of D el M onte's products is a prepackaged ready-to-eat vegetable
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`tray sold in various venues, including Kw ik Trip stores in M innesota, W isconsin
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`and other states. The vegetable trays are typically com prised of broccoli,
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`cauliflow er, celery sticks, carrots and dill dip supplied by vendors including
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`M idwest Best.
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`10. At all tim es relevant, D el M onte purchased from M idw est Best
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`broccoli croxvns, celery and caulifower (çûvegetables''). The vegetables were
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`included within Del M onte vegetable trays it sold to various custom ers, including
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`but not lim ited to K wik Trip convenience stores in M innesota, W isconsin and other
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`M idw estern states.
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`B . C yclospora C laim s A sserted A gainst D eI M onte
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`1 1 . In early June 20 18, D el M onte w as inform ed that state health
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`departm ents were investigating an increase of Cyclospora infections from patients
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`w ho had reported purchasing and eating D e1 M onte vegetable trays sold at
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`W isconsin or M innesota K w ik Trip retail locations.
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`12. ln an abundance of caution, D el M onte w ithdrew all vegetable trays
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`from m arket retail locations on June 8, 2018, and issued a voluntary recall of all
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`rem aining vegetable trays with an expiration date of June 17, 2018.
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`M idwest Best w as one of the providers of broccoli crow ns, celery and
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`caulitlower contained within the subject vegetable trays.
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`Case: 4:20-cv-00500-DDN Doc. #: 1 Filed: 09/19/19 Page: 5 of 15 PageID #: 5
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`14. ln connection w ith reports by consum ers who alleged contracting
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`Cyclosporasis aftereating D e1 M onte vegetable trays, Del M onte w as presented
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`w ith the claim s for alleged dam ages asserted in the U nderlying M atters.
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`15. The allegations contained in the filed and unfiled com plaints are
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`essentially identical-.the com plainants allege they suffered a food borne illness,
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`specifically Cyclosporiasis, as a result of consum ing produce w ithin the vegetable
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`tray.
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`C . M idw est B est and A M C O 'S A greem ent to lndem nify and Insure
`D eI M onte
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`16. s4idxvest Best entered into an agreem ent w ith D e1 M onte related to
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`supplying food item s entitled ççD el M onte Fresh Produce, N A , lnc. Continuing
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`Food Guaranty.'' A copy of this agreem ent is attached hereto as Exhibit C . ln the
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`Continuing Food Guarantee, M idw est Best agreed ççto at a11 tim es defend,
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`indem nify, and hold harm less D e1 M onte, its agents and em ployees against and
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`from any and all actions, suits, liabilities, prosecutions, penalties, settlem ents,
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`losses, dam ages, costs, charges, attorney's fees, and al1 other expenses relating to
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`or arising from any and al1 claim s (whether founded or unfounded) of every nature
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`or character (including, without limitation, claims for personal injury, death or
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`damage to property):
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`arising out of the condition of the
`(a) based upon or
`m erchandise,
`any defect or alleged defect in the
`m erchandise,
`or based upon any allegation that the
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`Case: 4:20-cv-00500-DDN Doc. #: 1 Filed: 09/19/19 Page: 6 of 15 PageID #: 6
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`m erchandise is not fit or safe for consum er use, based
`upon the nature of the m aterial contained in the
`m erchandise, or based on, arising out of, or any w ay
`related to the services and/or m erchandise of supplier, or
`due to any actual negligence or dishonesty of, or any
`actual act or com m ission or om ission by, supplier, its
`agents, em ployees, Or Contractors . . . ..
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`17. ln addition, M idw est B est agreed çûto cany and m aintain such
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`insurance as will protect (M idwest) and De1 M onte from claim s . . . for personal
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`injury, death or property dam age which m ay be m ade by agents or employees of
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`suppliers and/or any third party arising out of or in connection w ith supplier
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`services and/or products.'' See Exhibit C .
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`M idw est Best contractually agreed to ûçcause its insurance policies. . .to
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`nam e De1 M onte Fresh Produce, N A , lnc. as additional insured'' on general
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`liability policies w ith lim its of at least $1 m illion per occurrence and not less than
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`$2 m illion aggregate.
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`A s required by the Continuing Food G uaranty, M idw est Best obtained
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`liability insurance policies from A M CO . AM CO issued a com m ercial general
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`liability policy of prim ary insurance to M idw est Best bearing policy num ber
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`A CPG LA O3008550160 w ith an operative policy period from N ovem ber 20, 2017-
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`November 20, 20 18 (the ççprim ary Policy''). A copy of the policy is attached as
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`Exhibit D . The general liability policy provides $1 m illion per occurrence and $2
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`m illion in aggregate lim its.
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`Case: 4:20-cv-00500-DDN Doc. #: 1 Filed: 09/19/19 Page: 7 of 15 PageID #: 7
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`20. AM CO also issued a com m ercial um brella policy of insurance bearing
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`policy num ber A CPCA A3008550160 for the N ovem ber 20, 2017 to N ovem ber 20,
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`2018 policy period w ith lim its of $3 m illion per occurrence and $3 m illion
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`aggregate lim its. See Exhibit E.
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`2 1. The policies of insurance w ere delivered to M idw est Best in the state
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`of M issouri.
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`U nder the underlying Prim ary Policy, A M CO agreed to Eçpay those
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`sum s that the insured becom es legally obligated to pay as dannages because of
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`tbodily injury' or Eproperty damage' to which this insurance applies.'' AM CO
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`agreed that it ççw ill have the right and duty to defend the insured against any çsuit'
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`seeking those dam ages.'' See Exhibit D .
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`23. The Primary Policy detines ltbodily injury'' as ûûbodily injury, sickness
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`or disease sustained by a person including death resulting from any of these at any
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`tim e period.'' The policy defines ttsuit'' as çta civil proceeding in w hich dam ages
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`because of çbodily injury', çproperty damage' or tpersonal and advertising injury'
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`to w hich this insurance applies are alleged. The policy definition of ltsuit'' also
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`Kçincludes...tb) any other alternative dispute resolution proceeding in which such
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`dam ages are claim ed and to w hich the insured subm its w ith our consent.'''
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`24. Endorsem ent CG 72121216 to the Prim ary Policy confers lfautom atic''
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`additional insured status ççw hen required in an agreem ent.'' This endorsem ent
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`Case: 4:20-cv-00500-DDN Doc. #: 1 Filed: 09/19/19 Page: 8 of 15 PageID #: 8
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`m odifies Section 11 - W HO IS AN INSURED to tçinclude .. . organizationts)
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`described in Paragraphs a. - i. below w ith w hom you have agreed in writing in a
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`contract or agreem ent that such person or organization be added as additional
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`insured on your policy.'' Subsection i. includes dtvendors but only w ith respect to
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`bodily injury or property damage arising out of your products which are distributed
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`or sold in the regular course of the vendor's business. . .''
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`25. Because M idw est B est contractually agreed to nam e Del M onte as an
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`additional insured under the A M CO policy, and D e1 M onte has claim s against it
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`for bodily injury arising out of M idwest Best's products distributed by De1 M onte
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`in the regular course of D e1 M onte's business, D e1 M onte is an insured under the
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`A M CO policy.
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`26. A M CO has acknow ledged that D el M onte is an additional insured
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`under the policy for the claim s against it described herein.
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`Under the term s of the A M CO Prim ary Policy, A M CO is prim ary
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`over any other collectable insurance, subject to exceptions not applicable to this
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`claim . The AM CO Prim ary Policy provides that tigijf this insurance is prim ary, our
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`obligations are not affected unless any of the other insurance is also prim ary.''
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`28. Because Del M onte is an additional insured on the AM CO policy, the
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`AM CO policy is prim ary and any other policy of insurance affording coverage to
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`D e1 M onte is excess only.
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`Case: 4:20-cv-00500-DDN Doc. #: 1 Filed: 09/19/19 Page: 9 of 15 PageID #: 9
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`29. Because M idwest Best has contractually agreed to indem nify D el
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`M onte for these claim s, and the A M CO policies provide indem nity to M idw est
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`Best and A M CO for these claim s, applicable 1aw requires AM CO to fully defend
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`and indem nify D el M onte
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`notwithstanding the existence of any other insurance
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`available to D e1 M onte.
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`30. Because M idw est Best has contractually agreed to indem nify D el
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`M onte for these claim s, and the AM CO policies provide indem nity to M idw est
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`Best and A M CO for these claim s, once the A M CO Prim ary Policy is exhausted
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`applicable law requires AM CO to fully defend and indem nify D e1 M onte under its
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`Excess Policy notwithstanding the existence any other insurance available to D el
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`M onte.
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`D . N ationw ide R efuses to Provide
`D efense or Indem niscation
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`D eI M onte w ith a C om plete
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`31. O n June 20, 2018, De1 M onte, through counsel, placed M idw est Best
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`on w ritten notice of the initial action in the M innesota case served on June 13,
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`2018, and the W isconsin com plaint filed on June 15, 2018, w hich at that tim e had
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`not yet been served. In its notification, D el M onte tendered these current claim s
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`and al1 potential claim s, dem ands or suits or future or related claim s, that m ay arise
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`from products that M idw est Best supplied to D e1 M onte for a defense and
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`indem niication under the Continuing Food G uarantee and under the A M CO
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`Case: 4:20-cv-00500-DDN Doc. #: 1 Filed: 09/19/19 Page: 10 of 15 PageID #: 10
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`Policy. Del M onte reasserted those tenders at least on July 10, 2018 and
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`Septem ber 7, 2018.
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`Upon inform ation and belietl M idwest Best notified AM CO of De1
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`M onte's tender in or after June 2018 and provided it w ith a copy of the Underlying
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`M atters as a defendant in the pending actions.
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`D e1 M onte also placed A M CO on form al notice of the underlying
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`actions and tendered the m atters for a defense and indem nity as an additional
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`insured under the A M CO policy.
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`34. O n D ecem ber 21, 2018, AM CO issued a reservation of rights letter to
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`D el M onte in w hich it acknow ledged that D e1 M onte w as an additional insured
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`under the A M CO policy and that A M CO 'S policy applied to these claim s.
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`H ow ever, despite the fact that the allegations of the com plaints triggered a duty to
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`defend and A M CO has prim ary coverage, A M CO only offered to çtparticipate in
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`reim bursing counsel selected for defense by D el M onte based on its proportionate
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`share of the defense cost that m ay be incurred by counsel selected by D el M onte or
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`its carrierss subject to a full reservation of rights under the applicable policies and
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`j 55asv.
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`35. The only coverage issues reserved by A M CO w ere the assertion of
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`five exclusions in the policy identified as: tçrepackaging'' ççexpress w arranty
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`claim s'' tGinspection'' çç hysical change to a product'' and çtrelabeling'' exclusions.
`, P
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`Case: 4:20-cv-00500-DDN Doc. #: 1 Filed: 09/19/19 Page: 11 of 15 PageID #: 11
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`The reservation of rights letter did not explain how each of the exclusions
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`precluded coverage for the allegations or
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`otherwise lim ited A M CO 'S duty to
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`defend to only tta proportionate share of the defense cost'' as asserted in the
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`reservation of rights letter.
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`36. A M CO has inform ed Del M onte, w ithout explanation, that it is only
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`obligated to reim burse D el M onte for 20% of the costs incurred in the defense of
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`the underlying suits.
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`37. AM CO has refused to reim burse any defense costs incurred prior to
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`O ctober 2018, the date on w hich it claim s it first received notice of the U nderlying
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`Law suits.
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`38. AM CO has refused to reim burse D el M onte for the settlem ents
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`reached by D e1 M onte.
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`39. D el M onte advised A M CO of its intent to attem pt to resolve the
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`U nderlying Lawsuits and other pending claim s in a global m ediation before a
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`retired Federal D istrict Court Judge in M innesota and requested A M CO 'S
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`participation therein. A M CO has refused to participate fully in the m ediation and
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`has refused to consent to the resolution of any claim not currently in suit. AM CO
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`has also inform ed D e1 M onte that it w ill not indem nify D el M onte for any claim
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`settled w ithout A M CO 'S consent.
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`Case: 4:20-cv-00500-DDN Doc. #: 1 Filed: 09/19/19 Page: 12 of 15 PageID #: 12
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`40. Despite Del M onte's request, AM CO has refused without justification
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`to am end or w ithdraw its reservation to honor its obligations to D e1 M onte under
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`the policies.
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`4 1. D ue to the unreasonable and inappropriate restrictions placed on
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`coverage by AM CO in its reservation of rights letter and subsequent
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`com munications, and as permitted by applicable law, Del M onte has rejected
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`AM CO 'S tender of a partial defense
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`under reservation of rights and brings this
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`declaratory judgment action seeking a declaration of AM CO'S duties and
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`obligations under the Policies.
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`C O UN T I- D ECLAR A TO R Y JU D G M EN T
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`42. D e1 M onte adopts and incom orates the prior paragraphs as if fully
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`stated and set forth herein.
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`43. De1 M onte is an additional insured under the subject AM CO policies
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`based on claims alleging bodily injury occurring within the AM CO policy period
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`as a result of products supplied by M idw est Best to De1 M onte for distribution.
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`44. The underlying state court actions are ççsuits'' under the policies for
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`w hich A M CO is obligated to defend and indem nify D e1 M onte in full.
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`45. The unfiled claim s against D el M onte constitute suits for which a
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`defense and indem nity is ow ed because De1 M onte had requested A M CO 'S
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`Case: 4:20-cv-00500-DDN Doc. #: 1 Filed: 09/19/19 Page: 13 of 15 PageID #: 13
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`perm ission to enter into alternative dispute resolution proceedings but A M CO has
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`impermissibly withheld withoutjustification.
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`46. D e1 M onte has m et a11 conditions precedent for coverage under the
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`policies.
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`47.
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`The exclusions asserted by A M CO in its reservation of rights letter do
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`not preclude a defense to or indem niGcation for any of the claim s against it in the
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`underlying state court actions or in the other claim s asserted against D e1 M onte for
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`w hich suit has not been filed.
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`48. The A M CO policies are prim ary over any other insurance available to
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`D e1 M onte. AM C O is obligated to defend and indem nify D el M onte for a11 claim s
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`against it arising from products supplied by M idwest Best, subject only to the
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`lim its of available insurance under the Prim ary and Excess Policies.
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`49. A M CO has waived or has otherwise estopped from asserting any
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`coverage defenses including, but not lim ited to, forfeiture clauses and exclusions
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`under the Policies because of its failure to tim ely or properly reserve its rights
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`under the Policies or in the altem ative, because its purported reservation
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`constitutes a denial of the claim withoutjustifcation.
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`C LA IM FO R R ELIEF
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`D e1 M onte respectfully requests a declaration from this Court that:
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`Case: 4:20-cv-00500-DDN Doc. #: 1 Filed: 09/19/19 Page: 14 of 15 PageID #: 14
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`A. A bona fide justiciable controversy exists between the parties that
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`m ust be resolved',
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`B. D el M onte is an additional insured under the Policies issued to
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`M idw est Best;
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`The A M CO Policies are prim ary over any other policy of liability
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`insurance providing coverage to Del M onte for the subject claims;
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`D . AM CO is obligated to im m ediately provide a full and com plete
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`defense to D e1 M onte and reim burse it for a1l defense costs incurred in defense of
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`the U nderlying Law suit;
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`E. AM CO is obligated to indem nify Del M onte for all losses claim ed
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`against it, which includes an obligation to reim burse D e1 M onte for a1l settlem ents
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`of filed and unfiled claim s reached by De1 M onte, up to the policy lim its;
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`For such other and further relief to which Del M onte is entitled.
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`/s/D . Ross M ccloy, Jr.
`D . R oss M cc loy, Jr.
`Florida Bar N o. 0262943
`Attorneyfor Plaintt
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`
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`Case: 4:20-cv-00500-DDN Doc. #: 1 Filed: 09/19/19 Page: 15 of 15 PageID #: 15
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`O F CO UN EL:
`H A ND A R EN DA LL H AR R ISO N SA LE, LLC
`P.O . D raw er 1579
`Panam a City, Florida 32402
`Telephone: (850) 769-3434
`Fax: (850) 769-6121
`rmccloy@ handfirm.com
`riackson@ handfirm.com
`
`Joseph L. Cow an, 11
`Pro Hac V ice A dm ission Pending
`Attorneyfor Plaint#
`
`O F CO U N EL:
`HAND ARENDALL HARRISON SA LL LLC
`1801 5TH A venue N orth, Suite 400
`Birm ingham , A labam a 35203
`Telephone: (205) 324-4400
`Fax: (205) 322-1163
`icowan@ handfirm.com
`
`SE R V E D E FE N D A N T V lA C E R TIF IE D M A IL
`A M CO lnsurance C om pany
`c/s Florida Chief Financial Officer as ltA
`Service of Process Section
`PO Box 6200
`Tallahassee, FL 32314-6200
`
`SER V E D E FEN D A N T V lA C ER T IFIE D M A IL
`The M idw est's Best Produce Com pany
`D an Pupillo
`President-cEo
`4101 G eraldine A ve
`St. Louis, M O 63115-1210
`
`