Case: 4:20-cv-00500-DDN Doc. #: 35 Filed: 04/20/20 Page: 1 of 8 PageID #: 35
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`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MISSOURI
`EASTERN DIVISION
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`DEL MONTE FRESH PRODUCE, N.A, INC.,
`a Florida Corporation
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`an Ohio
`INSURANCE CO.,
`AMCO
`Corporation, and THE MIDWEST’S BEST
`PRODUCE CO., a Missouri Corporation
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`Defendants.
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`______________________________________/
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`Case 4:20-cv-00500-DDN
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`Plaintiff,
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`v.
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`AMCO’S ANSWER AND AFFIRMATIVE DEFENSES
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`AMCO Insurance Company answers the Complaint filed by Del Monte Fresh Produce,
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`N.A., Inc. and states as follows.
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`PARTIES
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`1.
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`2.
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`3.
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`4.
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`Admitted.
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`Admitted.
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`Admitted.
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`JURISDICTION AND VENUE
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`AMCO admits that the Eastern District of Missouri has jurisdiction of this dispute.
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`The Underlying Complaints speak for themselves. To the extent the allegations of this paragraph
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`are inconsistent with Exhibits A or B, AMCO denies those allegations. AMCO denies the
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`remaining allegations in Paragraph 4.
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`5.
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`6.
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`Admitted.
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`AMCO admits the amount in controversy exceeds the minimum jurisdiction
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`1024752\305591416.v1
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`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MISSOURI
`EASTERN DIVISION
`
`DEL MONTE FRESH PRODUCE, N.A, INC.,
`a Florida Corporation
`
`
`
`
`
`an Ohio
`INSURANCE CO.,
`AMCO
`Corporation, and THE MIDWEST’S BEST
`PRODUCE CO., a Missouri Corporation
`
`Defendants.
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`
`
`______________________________________/
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`Case 4:20-cv-00500-DDN
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`Plaintiff,
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`v.
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`AMCO’S ANSWER AND AFFIRMATIVE DEFENSES
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`AMCO Insurance Company answers the Complaint filed by Del Monte Fresh Produce,
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`N.A., Inc. and states as follows.
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`PARTIES
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`1.
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`2.
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`3.
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`4.
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`Admitted.
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`Admitted.
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`Admitted.
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`JURISDICTION AND VENUE
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`AMCO admits that the Eastern District of Missouri has jurisdiction of this dispute.
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`The Underlying Complaints speak for themselves. To the extent the allegations of this paragraph
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`are inconsistent with Exhibits A or B, AMCO denies those allegations. AMCO denies the
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`remaining allegations in Paragraph 4.
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`5.
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`6.
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`Admitted.
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`AMCO admits the amount in controversy exceeds the minimum jurisdiction
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`Case: 4:20-cv-00500-DDN Doc. #: 35 Filed: 04/20/20 Page: 2 of 8 PageID #: 36
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`amount of $75,000 for jurisdictional purposes only and without admitting that AMCO is
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`responsible to pay for those fees and costs under its policy.
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`7.
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`AMCO admits that venue is proper in the Eastern District of Missouri.
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`A.
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`FACTUAL ALLEGATIONS
`Del Monte’s Relationship with Midwest Best
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`8.
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`AMCO is without knowledge and therefore denies the allegations in Paragraph 8.
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`9.
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`10.
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`AMCO is without knowledge and therefore denies the allegations in Paragraph 9.
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`AMCO is without knowledge and therefore denies the allegations in Paragraph 10.
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`B.
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`Cyclospora Claims Asserted Against Del Monte
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`11.
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`12.
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`13.
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`14.
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`AMCO is without knowledge and therefore denies the allegations in Paragraph 11.
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`AMCO is without knowledge and therefore denies the allegations in Paragraph 12.
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`AMCO is without knowledge and therefore denies the allegations in Paragraph 13.
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`Admitted that Del Monte was presented with claims and/or suits which speak for
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`themselves; otherwise denied.
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`15.
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`The filed and unfiled complaints speak for themselves. To the extent the allegations
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`in Paragraph 15 are inconsistent with the filed and unfiled complaints, AMCO denies Paragraph
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`15.
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`C. Midwest Best and AMCO’s Agreement to Indemnify and Insure Del Monte
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`16.
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`The Del Monte Fresh Produce, NA, Inc. Continuing Food Guaranty speaks for
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`itself. To the extent Exhibit C is inconsistent with the Del Monte Fresh Produce, NA, Inc.
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`Continuing Food Guaranty, AMCO Denies the allegations in Exhibit 16. AMCO denies the
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`remaining allegations of Paragraph 16.
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`17.
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`The Del Monte Fresh Produce, NA, Inc. Continuing Food Guaranty speaks for
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`itself. To the extent Exhibit C is inconsistent with the Del Monte Fresh Produce, NC, Inc.
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`Continuing Food Guaranty, AMCO Denies the allegations in Exhibit 17. AMCO denies the
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`remaining allegations of Paragraph 17.
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`18.
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`The Del Monte Fresh Produce, NA, Inc. Continuing Food Guaranty speaks for
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`itself. To the extent Exhibit C is inconsistent with the Del Monte Fresh Produce, NC, Inc.
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`Continuing Food Guaranty, AMCO Denies the allegations in Exhibit 18. AMCO denies the
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`remaining allegations of Paragraph 18.
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`19.
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`AMCO is without knowledge and therefore denies Paragraph 19’s allegation about
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`why Mid-West Best obtain liability policies from AMCO. AMCO’s insurance policies issued to
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`Midwest Best speak for themselves. To the extent the allegations in Paragraph 19 are inconsistent
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`with policies, AMCO denies the remaining allegations in Paragraph 19. AMCO denies the
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`remaining allegations of Paragraph 19.
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`20.
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`The policies AMCO issued to MidWest Best speak for themselves. To the extent
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`the allegations in Paragraph 20 are inconsistent with the policies, AMCO denies the allegations in
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`Paragraph 20. AMCO denies the remaining allegations of Paragraph 20.
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`21.
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`22.
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`Admitted.
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`AMCO’s Primary Policy speaks for itself. To the extent the allegations in
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`Paragraph 22 are inconsistent with the Primary Policy, AMCO denies the allegations in Paragraph
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`22. AMCO denies the remaining allegations of Paragraph 22.
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`23.
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`AMCO’s Primary Policy speaks for itself. To the extent the allegations in
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`Paragraph 23 are inconsistent with the Primary Policy, AMCO denies the allegations in Paragraph
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`23. AMCO denies the remaining allegations of Paragraph 23.
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`24.
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`AMCO’s Primary Policy speaks for itself. To the extent the allegations in
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`Paragraph 24 are inconsistent with the Primary Policy, AMCO denies the allegations in Paragraph
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`Case: 4:20-cv-00500-DDN Doc. #: 35 Filed: 04/20/20 Page: 4 of 8 PageID #: 38
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`24. AMCO denies the remaining allegations of Paragraph 24.
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`25.
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`Denied as phrased. Further answering even if De Monte is an insured it is not
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`entitled to a defense under the AMCO policy under the applicable law and facts.
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`26.
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`AMCO’s correspondence to Del Monte speaks for itself. To the extent the
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`allegations in Paragraph 26 are inconsistent with those communications, AMCO denies the
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`allegations in Paragraph 26. AMCO denies the remaining allegations of Paragraph 26.
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`27.
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`28.
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`29.
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`30.
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`Denied.
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`Denied.
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`Denied.
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`Denied.
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`D. Nationwide Refuses to Provide Del Monte with a Complete Defense or
`Indemnification
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`31.
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`Del Monte’s correspondence to Midwest’s Best speaks for itself. To the extent the
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`allegations in Paragraph 31 are inconsistent with the correspondence, AMCO denies the
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`allegations in Paragraph 31. AMCO denies the remaining allegations of Paragraph 31.
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`32. Midwest’s Best’s correspondence speaks for itself. To the extent the allegations
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`in Paragraph 32 are inconsistent with the correspondence AMCO received from Midwest’s Best,
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`AMCO denies the allegations in Paragraph 32. AMCO denies the remaining allegations of
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`Paragraph 32.
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`33.
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`AMCO admits Del Monte tendered the lawsuit to AMCO on October 10, 2018.
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`That correspondence speaks for itself. To the extent the allegations in Paragraph 33 are
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`inconsistent with the correspondence, AMCO denies the allegations in Paragraph 33. AMCO
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`denies the remaining allegations of Paragraph 33.
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`34.
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`AMCO denies that either of its policies provides primary coverage. AMCO admits
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`Case: 4:20-cv-00500-DDN Doc. #: 35 Filed: 04/20/20 Page: 5 of 8 PageID #: 39
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`issuing a reservation of rights on December 21 2018. That letter and the complaints’ allegations
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`speak for themselves. To the extent Paragraph 34 is inconsistent with AMCO’s reservation of
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`rights letter or the complaints’ allegations, AMCO denies the remainder of Paragraph 34. AMCO
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`denies the remaining allegations of Paragraph 34.
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`35.
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`AMCO reservation of rights letter speak for itself. To the extent Paragraph 35 is
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`inconsistent with AMCO’s reservation of rights letter or the complaints’ allegations, AMCO
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`denies the allegations in Paragraph 35. AMCO denies the remaining allegations of Paragraph 35.
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`36.
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`37.
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`Denied.
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`AMCO admits that it has refused to reimburse Del Monte for costs incurred prior
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`to Del Monte’s tender to AMCO in October of 2018, since it has no obligation to do so. AMCO
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`denies the remaining allegations of Paragraph 37.
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`38.
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`AMCO admits that it has refused to unconditionally reimburse Del Monte for
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`settlements reached by Del Monte, since it has no obligation to do so. AMCO denies the remaining
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`allegations of Paragraph 38.
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`39.
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`AMCO denies that it refused to attend and fully participated in the mediation.
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`Further, the October 21, 2019, correspondence sent by AMCO’s counsel to Del Monte’s counsel
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`speaks for itself. To the extent the allegations of Paragraph 39 are inconsistent with the October
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`21, 2019, AMCO denies those allegations. AMCO denies the remaining allegations of Paragraph
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`39.
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`40.
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`41.
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`Denied.
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`Denied.
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`COUNT I- DECLARATORY JUDGMENT
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`42.
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`AMCO incorporates by reference its answers to Paragraphs 1 through 41 as its
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`response to Paragraph 42.
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`43.
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`AMCO states that its policy speaks for itself. AMCO denies the allegations of
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`Paragraph 42 to the extent the allegation of this Paragraph are inconsistent with the subject policy’s
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`terms, conditions and exclusion.
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`44.
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`45.
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`46.
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`47.
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`48.
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`49.
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`Denied.
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`Denied.
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`Denied.
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`Denied.
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`Denied.
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`Denied.
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`WHEREFORE, Del Monte is not entitled to a judgment in its favor, the reimbursement of
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`defense fees and costs incurred defending the underlying actions, the reimbursement of all amounts
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`paid to settle filed and unfiled claims, a ruling that AMCO’s policies provide primary coverage to
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`Del Monte or to any other relief whatsoever
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`AFFIRMATIVE DEFENSES
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`To the extent the contamination was not caused by the Midwest’s Best’s products
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`1.
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`or those of its suppliers, it is not covered under AMCO’s policies since Del Monte is not an
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`additional insured.
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`2.
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`To the extent any claim against Del Monte were against Del Monte relate to the
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`repackaging of the vegetables Del Monte prior to sale, the repackaging exclusion precludes
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`coverage.
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`3.
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`To the extent that any claim against Del Monte arises from any express warranty
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`made by Del Monte, no coverage exists under AMCO’s policies.
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`Case: 4:20-cv-00500-DDN Doc. #: 35 Filed: 04/20/20 Page: 7 of 8 PageID #: 41
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`4.
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`To the extent that any claims against Del Monte arises from a failure to inspect the
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`subject produce that Del Monte normally undertakes in the usual course of its business, no
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`coverage exists under AMCO’s policies.
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`5.
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`To the extent the claims against Del Monte arise out of the sole negligence of Del
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`Monte or anyone else on its behalf during its processing of the vegetables, no coverage exists under
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`AMCO’s policies.
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`6.
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`To the extent that the vegetables were relabeled by Del Monte or anyone acting on
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`its behalf prior to sale, no coverage exists under AMCO’s policies.
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`7.
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`To the extent that Del Monte made any physical change to the vegetables, no
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`coverage exists under AMCO’s policies
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`8.
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`There is no coverage for Del Monte available under AMCO’s policies to the extent
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`Midwest’s Best obligated itself to indemnify Del Monte for liability that Midwest’s Best would
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`not have in the absence of the contract’s indemnity provision.
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`9.
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`There is no coverage available to Del Monte under AMCO’s policies to the extent
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`the pollution exclusion applies.
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`10.
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`To the extent AMCO has a duty to indemnify Del Monte, AMCO is entitled to a
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`setoff from any collateral sources of recovery.
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`11.
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`To the extent coverage exists for Del Monte under AMCO’s policies, those policies
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`are excess over any other collectable insurance.
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`12.
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`There is no coverage available to Del Monte under AMCO’s policies to the extent
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`the recall exclusion applies.
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`13.
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`There is no coverage available to Del Monte under AMCO’s to the extent all of the
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`conditions under the Supplementary Payment provisions have not been met.
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`Case: 4:20-cv-00500-DDN Doc. #: 35 Filed: 04/20/20 Page: 8 of 8 PageID #: 42
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`14.
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`There is no coverage for any settlement or obligation incurred by Del Monte
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`without AMCO’s consent.
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`15.
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`AMCO’s policies contains additional terms, exclusions, condition and definitions
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`which exclude or limit coverage. The limit of insurance and each of these applicable terms,
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`exclusions, conditions and definitions is asserted as an affirmative defense.
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`Respectfully submitted,
`HINSHAW AND CULBERTSON, LLP
`/s/MELISSA GILLINOV
`Melissa Gillinov, Esq.
`mgillinov@hinshawlaw.com
`2525 Ponce de Leon. Blvd.
`Miami, Florida 33434
`Telephone: 305-358-7747
`Facsimile: 305-577-1063
`Counsel for Amco Insurance Company
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true copy of the foregoing was filed via the CM/ECF system on April
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`20, 2020. I further certify that I am not aware of any non-registered users.
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`/s/MELISSA A. GILLINOV
`Melissa A. Gillinov
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`1024752\305591416.v1
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