Townsends of Arkansas, Inc. v. Millers Mutual Insurance

823 F. Supp. 233, 1993 U.S. Dist. LEXIS 17894
CourtDistrict Court, D. Delaware
DecidedMarch 31, 1993
DocketCiv. A. No. 89-83-JJF
StatusPublished
Cited by1 cases

This text of 823 F. Supp. 233 (Townsends of Arkansas, Inc. v. Millers Mutual Insurance) is published on Counsel Stack Legal Research, covering District Court, D. Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Townsends of Arkansas, Inc. v. Millers Mutual Insurance, 823 F. Supp. 233, 1993 U.S. Dist. LEXIS 17894 (D. Del. 1993).

Opinion

MEMORANDUM OPINION

FARNAN, District Judge.

Plaintiffs Townsends of Arkansas, Inc. (Townsends), Townsends Farms of Arkansas, Inc. (Townsend Farms), Townsends, Inc. and Townsend Farms, Inc. filed this action against Defendant Millers Mutual Insurance Company (Millers Mutual) alleging a breach with regard to the terms of a policy of insurance, issued by Millers Mutual, for the period from June 1, 1988, through June 1, 1989. The Court held a bench trial and this Opinion constitutes the Court’s Findings of Facts and Conclusions of Law.

FINDINGS OF FACTS

The parties submitted a Proposed PreTrial Order which provided a statement of facts to which the parties stipulated. The following statement of facts will include some of those stipulated facts, as well as Findings of Fact made by the Court.

The Parties

Plaintiffs Townsends and Townsends Farms are Arkansas corporations with their principal places of business in Batesville, Arkansas. Stipulated Facts, Nos. 1, 2. Plaintiffs Townsends, Inc. and Townsend Farms, Inc. are Delaware corporations with their principal places of business in Millsboro, Delaware. Stipulated Facts Nos. 3, 4. Townsend Farms is a wholly-owned subsidiary of Townsends. Townsends and Townsend [235]*235Farms, Inc. are wholly-owned subsidiaries of Townsends, Inc.

Defendant Millers Mutual is a Pennsylvania corporation with a principal place of business in Harrisburg, Pennsylvania. It is authorized to transact insurance business in the states of Delaware and Arkansas. Stipulated Facts, Nos. 5, 6.

The Batesville Operation

Townsend Farms and Townsends own and operate a poultry operation in Batesville, Arkansas. Stipulated Facts, Nos. 9,10, 12. At the Batesville facilities, Townsend Farms operates a hatchery to hatch the baby chicks. Townsends operates a poultry processing plant, in which chickens are slaughtered and processed to produce poultry products called “dressed poultry.” Stipulated Facts, Nos. 13, 14, 19.

Townsend Farms also owns and operates a feed mill to manufacture chicken feed at the Batesville facility. The chicken feed consists of grains, foodstuffs, and other ingredients including: (1) milo; (2) liquid fat; (3) fish, poultry and/or soy meal; (4) phosphate; (5) propak, a protein-based additive; and (6) choline, a vitamin additive. Tr., A-20, lines 8-15; A-59, lines 2-7; D-93, lines 17-25; D-94, lines 1-3.

Milo, one of the grains-used in the manufacture of the feed, represents approximately 65% of the total feed. Transcript, A-17, lines 23-25. The Batesville facility purchases the milo from various brokers in the state of Arkansas, who ship the milo in bulk to Batesville on a daily basis. The feed mill operation uses an average of eight to -ten truckloads of milo each day. Upon delivery of the milo, Townsends Farms normally conducts two tests: a bushel weight test and a moisture test. Tr., A-56; lines 24-25; A-57, lines 1-9. The delivered truckloads of milo are initially placed in a whole milo receiving bin. Then, the milo is augured into one of four milo holding bins. Three' of the bins hold 9,000 bushels of milo and one of the bins holds 12,000 bushels of milo. Stipulated fact, No. 17. The milo from the four holding bins is ground into very tiny particles in a hammer mill and then transferred by elevator to a ground milo holding bin. Stipulated Fact No. 18.

Next, the ground milo is transferred from the holding bin to a scale hopper in which it is mixed with the other feed ingredients. Tr., A-17, lines 18-25, A-70, lines 21-25; A-71, lines 1-12. All of the chicken feed ingredients in the scale hopper are mixed in a 2,000 pound mixer. The ground milo is drawn out of the bottom of the bin, Tr., A-20, lines 2-7, which means that the facility uses the ground milo on a “first in, first out” basis.

Finally, the mixed ingredients are elevated into another bin and made into pellets in the pellet mill. Tr., A-18, lines 1-4; A-71, lines 13-25; A-72, lines 1-2. The pelletization process involves heating the chicken feed ingredients to 190° and pressing them into a one-quarter to one-half inch long pellet. Tr., A-18, lines 5-11; A-71, lines 13-25; A-72, lines 1-2. The pellets are transported by elevator into finished feed bins. The finished feed product is delivered on feed trucks to approximately 400 contract growers in the Batesville, Arkansas area and eventually fed to the chickens.

The contract growers supply the chicken houses and labor to raise the chickens. The chickens are "raised by these contractors for approximately eight weeks, before they are brought to the Batesville facility’s processing plant and converted into dressed poultry. Tr., A-25, lines 9-25; A-26, lines 1-11. The dressed poultry is either stored in a freezer or delivered on the same or the following day in fresh form to Townsends’ customers. Tr., A-26, lines 12-H5.

The Incident -

On January 6, 1989, Townsends received notification that routine tests by one of its customers, Campbell Soup Company, disclosed that dressed poultry sold to it by Townsends contained residues of heptachlor. Heptachlor is a man-made chemical pesticide commonly recognized as a family of chlorinated hydrocarbons. Stipulated Fact, No. 22. Heptachlor is fat soluble. It will seek out fat and dissolve in it. Tr., A-121, lines 6-9; D-92, lines 14-18. Heptachlor is characterized as a toxin in that it interferes with life processes. Tr., D-88, lines 14-24. From 1988 to early 1989, heptachlor was used to [236]*236treat seed and control termites and insects, Tr., A-100, lines-6-8; A-lll, lines 6-14, however, in August, 1989, all uses of heptachlor in the United States were prohibited because of its carcinogenic nature. Stipulated Fact, No. 22; Tr., A-108, lines 12-21 (as determined by the Environmental Protection Agency (EPA)). Stipulated. Fact No. 26. Townsends began an investigation in order to determine the extent of the problem and the source of the heptachlor. Townsends sent samples of dressed poultry and retained feed and milo to various testing laboratories throughout the United States. Stipulated Fact No. 26. By January 11, 1989, laboratory results revealed heptachlor residues were present in chickens and in feed samples. Tr., A-33, lines 10-14; A-62, lines 1-16.

On January 12, 1989, Mr. Lucius Forbes Daniels (Daniels), the Senior Vice President for Townsends at the time, closed the Bates-ville processing plant because, as he stated, “we did not want anything else that was illegal in the mainstream.” Tr., A-33, lines 21-25; A-35, lines 3-7. The processing plant did not resume operations until January 24, 1989. Tr., A-42, lines 11-14. During this period, Townsends did not shut down the feed mill operation, Tr.,'A-45, lines 4-6, but Townsends did notify its customers of the potential presence of heptachlor in its dressed poultry products. Stipulated Fact, No; 28.

From the tests conducted on the milo samples, Townsends eventually identified milo as the suspected source of the heptachlor resi; dues. Townsends speculated that heptachlor-treated seed milo had been delivered to and received by Townsend Farms at some point in November and/or December, 1988, Stipulated Fact, No. 27; however, Plaintiffs still do not know precisely when the heptachlor treated milo entered their feeding system. Tr., A-58., lines 14-20.

Insurance Coverage

Millers Mutual sells property and casualty insurance and its Agribusiness Department specializes in an agricultural line of insurance.

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Related

TOWNSENDS OF ARKANSAS v. Millers Mut. Ins.
823 F. Supp. 233 (D. Delaware, 1993)

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Bluebook (online)
823 F. Supp. 233, 1993 U.S. Dist. LEXIS 17894, Counsel Stack Legal Research, https://law.counselstack.com/opinion/townsends-of-arkansas-inc-v-millers-mutual-insurance-ded-1993.