suit against dupont by insurer re pesticide

8/11/2019 Suit Against Dupont by Insurer Re Pesticide

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THE CINCINNATI INSURANCE

COMPANY Civil Case No.6200 S. Gilmore RoadCincinnati Ohio 45011 Judge t 1SCV27S

Plaintiff COMPLAINT

v J BAB REIT

E.l. DUPONT AND CO.c/o Statutory AgentCT CORPORATION1300 E 9TH STCLEVELAND OH 44114

Defendant.

•

Now comes the Plaintiff The Cincinnati Insurance Company for its

complaint against E. I. duPont and Co. states as follows:

NATURE OF THE ACTION

1. This complaint is a subrogation action to recover amounts that

Cincinnati Insurance Company has paid to resolve liability of parties insured by

Cincinnati that was caused by E. I. duPont and Company.

2. Specifically E.l. duPont and Company has manufactured

produced or sold an herbicide known as lmprelis that was used for weed control

by persons and entities in inter alia lawn care landscaping grounds

maintenance and similar activities and businesses.

3. lmprelis proved to be toxic to desirable as well as undesirable

plants and trees.

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4 E l DuPont and Company has acknowledged its liability with

respect to lmprelis.

5 Persons using lmprelis inadvertently caused damage to valuable

landscape plantings, such as trees.

6 Five Seasons Landscape Mgmt., Inc. ( Five Seasons ) and Land-

Tech Enterprises, Inc. ( Land-Tech ), parties insured by Cincinnati Insurance

Company, used lmprelis in their business activities.

7 Five Seasons and Land-Tech, parties insured by Cincinnati

Insurance Company, incurred liability exposure of several hundred thousand

dollars for the loss of valuable landscape plantings killed by lmprelis.

8 Cincinnati Insurance Company has paid approximately $5.7 million

to resolve the exposure o its insureds, Five Seasons and Land-Tech.

9 With this action, Cincinnati Insurance Company seeks to recover

from E I duPont and Company the amounts it has paid to resolve the exposure

of its insureds, Five Seasons and Land-Tech.

PARTIES JURISDICTION AND VENUE

10. Cincinnati Insurance Company ( Cincinnati ) is a corporation

organized under the laws o Ohio with its principal place of business in Fairfield,

Ohio. The Cincinnati Insurance Company is a citizen of Ohio.

11. E l duPont and Company ( DuPont ) is a corporation organized

under the laws o Delaware with its principal place of business in Delaware.

DuPont is a citizen of Delaware.

12 The amount in controversy exceeds $75,000.00.

13. Jurisdiction exists under 28 U.S.C. § 1332. Plaintiff Cincinnati is a

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citizen of Ohio. Defendant DuPont is a citizen of Delaware. The amount in

controversy exceeds the jurisdictional minimum.

14. Venue is appropriate in this District under 28 U.S.C. 1391(b)(1)

and 2). DuPont resides in this District, as it is subject to personal jurisdiction in

this District for its liability for lmprelis. In addition, a substantial part of the events

giving rise to the claim took place in this District, including, but not limited to, the

exposure of certain of Cincinnati's insured and the issuance of the insurance

policies that, by their terms, vest Cincinnati with subrogation rights.

IMPRELIS B CKGROUND

15. DuPont is the manufacturer, developer and seller of an herbicide

marketed as lmprelis.

16. DuPont describes lmprelis as a potassium salt of

aminocyclopyrachlor.

17. Amincocyclopyrachlor is the active ingredient in lmprelis.

18. Amincocyclopyrachlor is non-volatile, highly soluble in water and

highly mobile in soil.

19. Amincocyclopyrachlor breaks down slowly, so that it persists in the

environment.

20. Amincocyclopyrachlor is a potent herbicide that DuPont marketed

as a means of eradicating undesirable target vegetation such as ground ivy,

dandelions, clover, and other weeds.

21. Amincocyclopyrachlor has also proved to be toxic to desirable and

valuable non-target vegetation such as trees, vegetables and plants.

22. DuPont marketed lmprelis to commercial users, such as landscape



companies, lawn care professionals, golf courses, and country clubs.

23. lmprelis is effective in low concentrations. The DuPont instructions

called for concentrations of 3-6 oz/acre.

24. The United States Environmental Protection Agency ( EPA )

registered lmprelis for use as a selective broad leaf herbicide on August 21 2010.

25. Soon thereafter, widespread reports were made of tree damage

that was associated with the use of lmprelis.

26. On August 11 2011, the EPA ordered DuPont to immediately stop

the sale, use or removal of lmprelis products.

27. The EPA's August 11 2011 order states:

The label for lmprelis contains directions for use that providefor its application near trees.

The label for lmprelis does not warn or caution aboutpotential damage to trees when used in accordance with theapproved label.

Based on tests and inspections conducted to date, EPA hasreason to believe that the lmprelis labeling does not containdirections for use and/or warning or caution statements thatare adequate to protect the environment, names, certainspecies of trees.

EXPOSURE OF CINCINN TI INSUREDS FOR THEIR USE OF IMPRELIS

28. Five Seasons and Land-Tech used lmprelis in their business and

incurred liability for damage caused by lmprelis.

29. Five Seasons and Land-Tech, Cincinnati's insureds, have exposure

for lmprelis.

30. Five Seasons and Land-Tech have incurred exposure for damage

to property belonging to their customers that was caused by the insured's use of



lmprelis.

31 To date, Cincinnati has paid in excess of 4,720,709.02 to resolve

the lmprelis exposure of Five Seasons.

32 Each of the claimants against Five Seasons has executed an

agreement that vests Cincinnati with subrogation rights to pursue DuPont for

damage caused by lmprelis.

33 The contracts of insurance between Cincinnati and Five Seasons

vest Cincinnati with subrogation rights with respect to liability claims against Five

Seasons that Cincinnati has resolved.

34 As Cincinnati continues to resolve the lmprelis liability exposure of

Five Seasons, it will become subrogated to Five Seasons' rights.

35 To date, Cincinnati has paid in excess of 978,394.13 to resolve

the lmprelis exposure of Land-Tech.

36 Each of the claimants against Land-Tech has executed an

agreement that vests Cincinnati with subrogation rights to pursue DuPont for

damage caused by lmprelis.

37 The contracts of insurance between Cincinnati and Land-Tech vest

Cincinnati with subrogation rights with respect to liability claims against Land

Tech that Cincinnati has resolved.

38 As Cincinnati continues to resolve the lmprelis liability exposure of

Land-Tech, it will become subrogated to Land-Tech's rights.

39 As Cincinnati resolves the lmprelis liability exposure of its other

insureds, it will become subrogated to their rights.

40 Cincinnati has notified DuPont about its subrogation rights against



DuPont.

41. Cincinnati has notified DuPont about the amounts it has paid to

resolve the lmprelis exposure of its insureds.

42 The total amount Cincinnati has paid to resolve the lmprelis

exposure of its insureds is currently in excess of 5,699,1 03.15.

43 The bases for the liability of Cincinnati's insureds include, but are

not limited to: strict products liability; negligence; breach of contract; breach of

warranty.

COUNT ISTRICT PRODUCT LI BILITY

F ILURE TO W RN

44 Cincinnati incorporates and re-alleges paragraphs 1-43 as if fully

set forth herein.

45 lmprelis was unreasonably dangerous, defective and not

reasonably safe for use in its intended or reasonably foreseeable purposes

because it did not have correct, adequate or complete warning or instructions

regarding its hazards or the way to safely use the product.

46 DuPont failed to adequately warn of the hazards of lmprelis,

including of damage to non-target vegetation such as trees.

47 DuPont's failure to warn is a violation of state common law and

state statutes governing strict products liability and obligations to provide

adequate instructions and to adequately warn of dangers in the reasonably

foreseeable use of a product.

48 Cincinnati is entitled to recover all amounts it has paid on behalf of

its insureds for their exposure caused by lmprelis.



COUNTSTRICT PRODUCT LI BILITY

DESIGN DEFECT

49. Cincinnati incorporates and re-alleges paragraphs 1-43 as if fully

set forth herein.

50 lmprelis was unreasonably dangerous, defective and not

reasonably safe for use in its intended or reasonably foreseeable purposes,

including the manner that was directed on the packages or instructions provided

by DuPont.

51 The benefit of the design and use of lmprelis as an herbicide is

outweighed by the risk of property damage and diminution in value to property.

52 The design of lmprelis is inconsistent with a user's reasonable

expectations of safety when using the product as directed and intended by

DuPont.

53 DuPont breached its duty to design lmprelis as a reasonably safe

product that would not cause damage to non-target vegetation if used as

directed.

54 DuPont's defective design of lmprelis is a violation of state common

law and state statutes governing strict products liability and obligations to provide

products that are safe for their reasonably foreseeable use

55 Cincinnati is entitled to recover all amounts it has paid on behalf of

its insureds for their exposure caused by lmprelis.

COUNT IllBRE CH OF EXPRESS W RR NTY

56 Cincinnati incorporates and re-alleges paragraphs 1-43 as if fully

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set forth herein.

57. DuPont expressly warranted that lmprelis was reasonably fit for

the purpose stated in the Directions For Use subject to the inherent risks

described above, when used in accordance with the Directions For Use under

normal conditions.

58. Cincinnati's insureds used lmprelis in accordance with DuPont's

directions for use and in normal conditions.

59. Despite the compliance of Cincinnati's insureds with DuPont's

Directions for Use and use of lmprelis in normal conditions, lmprelis caused

damage to property and was not reasonable fit for its intended purpose.

60. As a direct and proximate result of DuPont's breach of express

warranty, Cincinnati's insureds have incurred direct, incidental and consequential

damages caused by damage to property of their customers, all of which has

been reimbursed, paid for and resolved by Cincinnati.

61. DuPont's breach of express warranty is a violation of state common

law and state statutes governing the sale of goods.

62. Cincinnati is entitled to recover all amounts it has paid to or on

behalf of its insureds for their direct, incidental and consequential damages

caused by DuPont's breach of express warranty.

COUNT IV

BRE CH OF IMPLIED W RR NTY


set forth herein.

64. In addition, or in the alternative, by placing lmprelis in the stream of

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commerce, DuPont impliedly warranted that lmprelis was o merchantable

quality, was reasonably fit for its ordinary and intended purposes and conformed

to DuPont's representations made n its advertising, marketing and labeling.

65. The ordinary and intended purpose o lmprelis was a commercial

broadleaf weed herbicide that was to be effective against target vegetation

such as weeds, but safe for non-target vegetation such as trees.

66. lmprelis was not o merchantable quality, was not reasonably fit for

its ordinary and intended purpose and did not comply with DuPont's

representations made in advertising, marketing and labeling.

67. As a direct and proximate result o DuPont's breach o implied

warranties, Cincinnati's insureds have incurred direct, incidental and

consequential damages caused by damage to property o their customers, all of

which has been reimbursed, paid for and resolved by Cincinnati.

68. DuPont's breaches o implied warranties are a violation of state

common law and state statutes governing the sale o goods.

69. Cincinnati is entitled to recover all amounts it has paid to or on

behalf o its insureds for their direct, incidental and consequential damages

caused by DuPont's breaches o implied warranties.

OUNTV

NEGLIGEN E


set forth herein.

71. DuPont has a duty to its customers and users o lmprelis to use

reasonable care in the design, development, testing, marketing, instruction,



. .

WHEREFORE, for the foregoing reasons, Cincinnati moves this Honorable Court

to enter judgment in its favor against DuPont and award damages sufficient to

compensate Cincinnati for the amounts it has paid to or on behalf of its insureds

for harm caused by lmprelis.

Respectfully submitted,

s John K enintendi

John K Benintendi OH Sup. Ct. 0063690)Attorney for Plaintiff, The Cincinnati Ins. Co

6200 S Gilmore Road

Fairfield,OH

45011513) 603-5788 telephone)513) 870-2900 fax)

[email protected]

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suit against dupont by insurer re pesticide

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