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Richardson International (US) Ltd. v. Buhler Inc.

United States District Court, D. Nebraska

April 11, 2017

RICHARDSON INTERNATIONAL (U.S.) LIMITED, and NATIONWIDE AGRIBUSINESS INSURANCE COMPANY. Plaintiffs,
v.
BUHLER INC., Defendant.

          Donald G. Beattie (Iowa Bar #AT0000736) Nile Hicks (Iowa Bar #AT0009391) BEATTIE LAW FIRM, P.C. ATTORNEYS FOR PLAINTIFFS

          James J. Hartnett (admitted pro hac vice) Rachel A. Osdoba (admitted pro hac vice) F AEGRE BAKER DANIELS LLP - and- Rex A. Rezac #17787 Elizabeth A. Culhane #23632 FRASER STRYKER PC LLO ATTORNEYS FOR DEFENDANT

          ORDER ON FINAL PRETRIAL CONFERENCE

         A final pretrial conference was held on the 11th day of April, 2017. Appearing for the parties as counsel were:

         1. For plaintiffs:

Nile Hicks (admitted pro hoc vice) Beattie Law Firm, P.C. 4300 Grand Avenue Des Moines, IA 50312 Telephone: (515)263-1000 Email: nile.hick@beattielawfirm.com
Note: Don Beattie will be participating in trial as co-counsel for Plaintiff but currently is unable to appear at the Pretrial Conference due to an unavoidable conflict in Case No. 5:13-cv-04106-CJW (N.D. Iowa). Should the conflict in the Bruhn matter be resolved. Attorney Beattie is expected to be present.

         2. For defendant:

James J. Hartnett (admitted pro hue vice) Rachel A. Osdoba (admitted pro hac vice) Faegre Baker Daniels LLP 2200 Wells Fargo Center 90 South Seventh Street Minneapolis, MN 55402-3901 Telephone: (612) 766-7000 Fax:(612)766-1600 Email: james.hartnett@faegrebd.com Email: rachel.osdoba@faegrebd.com
(A) Exhibits. See attached Exhibit Lists and the parties' objections noted in the exhibit lists.
(B) Uncontroverted Facts. The parties have agreed that the following may be accepted as established facts for purposes of this case only:
This case is about a fire that occurred at a grain processing plant located in South Sioux City Nebraska on June 3. 2013. Richardson International was the owner of the plant at the time of the fire. Nationwide Agribusiness Insurance Company is the insurance company for Richardson International that paid to repair the plant after the fire. A reference to Nationwide Agribusiness can be considered a reference to Richardson during the course of this litigation. Buhler. Inc. is the owner of a company that supplied commercial granola drying equipment to the plant in 1994 and 2008, and provided additional services in the years leading up to the fire.
Plaintiff Nationwide Agribusiness Insurance Company, as subrogated party for the rights and interests of Richardson International ("Nationwide Insurance") alleges that faulty design of equipment designed, manufactured, and supplied by Buhler was responsible for the damage claimed in this matter. Buhler denies that any fault in its design, manufacturing, or supply of the equipment caused the fire and denies any responsibility for the claimed damages.
Nationwide Insurance further alleges that the warnings and instructions provided by Buhler were inadequate. Buhler denies any fault in its warnings and instructions, and denies any fault in causing the fire.
Buhler claims that the fire was caused by faulty operation and maintenance of the equipment by Richardson. Nationwide Insurance denies that the fire was caused by faulty operation and maintenance of the equipment by Richardson.
Nationwide Insurance has asserted damages consisting of equipment repair, replacement, facility cleaning, business interruption, and product loss. Buhler denies responsibility for these damages.
Documents in this case from 2007 and 2008 may refer to 21st Century Grain and Aeroglide Corporation, but for the purposes of this case, you should assume that 21stCentury Grain is the same as Richardson and Aeroglide Corporation is the same as Buhler. For the purposes of this case summary, I will refer to the owner of the plant as Richardson and the supplier of the equipment as Buhler.
The granola drying equipment that Richardson purchased from Buhler in 2007 was intended to be used as part of a production line to make granola. Granola is made by mixing oat flakes and other dry ingredients with a liquid syrup that binds the dry products together into clumps. The equipment that Richardson purchased from Buhler in 2007 was intended to dry the granola. The dryer at issue in this case was the second granola production dryer at the plant, known as Granola Line 2.

         (C) Controverted and Unresolved Issues. The issues remaining to be determined and unresolved matters for the court's attention are:

[List all legal issues remaining to be determined, setting out in detail each element of the claim or defense which is genuinely controverted (including issues on the merits and issues of jurisdiction, venue, joinder, validity of appointment of a representative of a party, class action, substitution of parties, attorney's fee and applicable law under which it is claimed, and prejudgment interest). Specify any special damages or permanent injuries claimed. In any negligence action, specify elements of negligence and contributory negligence, if any. Any other unresolved matters requiring the court's attention, such as possible consolidation for trial, bifurcated trials on specified issues, and pending motions, shall also be listed.]

         I. Choice of Law

         1. See Defendant's Summary Judgment and Plaintiffs Resistance. Defendant claims that North Carolina substantive law applies. Plaintiff denies that North Carolina substantive law applies and asserts that Nebraska law applies.

         II. Plaintiffs Causes of Action and Specifications of Fault

         Plaintiff asserts the following causes of action and specifications of fault, which are denied by Defendant.

1. Defendant is strictly liable for failing to design adequate fire suppression into the granola dryer supplied to Plaintiff;
2. Defendant is strictly liable for designing a dryer in violation of NFPA 86 (1999) § 3-2.1 in failing to design out the fire hazards inherent in equipment operating at elevated temperatures;
3. Defendant is strictly liable for designing a dryer in violation of NFPA 86 (1999) Chapter 11 in failing to design the granola dryer with an adequate fire protection system;
4. Defendant is strictly liable for violating NFPA 86 (1999) § 1-3.4 in failing to comply with NFPA 86 requirements and demonstrating and documenting the safety and validity of the design of the granola dryer;
5. Defendant is strictly liable for designing a dryer in violation of NFPA 86 (2007) § 5.2.1 in failing to design out and minimize the fire hazard inherent in equipment operating at elevated temperatures;
6. Defendant is strictly liable for designing a dryer in violation of NFPA 86 (2007) § 14.1 in failing to conduct a study as to the need for fixed or portable fire protection systems for the granola dryer;
7. Defendant is strictly liable for designing a dryer in violation of FM Global DS 6-9 (2003) § 2.2.4.1 in failing to provide automatic fire suppression for the granola dryer;
8. Defendant is strictly liable for designing a dryer in violation of NFPA and FM Global standards in violation of the contract terms;
9. Defendant is strictly liable for failing to adequately warn Plaintiff concerning the requirements for fire suppression on the granola dryer;
10. Defendant is strictly liable for failing to adequately warn Plaintiff concerning the requirements under NFPA 86 (1999) for fire suppression on the granola dryer;
11. Defendant is strictly liable for failing to adequately warn Plaintiff concerning the requirements under NFPA 86 (2003) for fire suppression on the granola dryer;
12. Defendant is strictly liable for failing to adequately warn Plaintiff concerning the requirements under NFPA 86 (2007) for fire suppression on the granola dryer;
13. Defendant is strictly liable for failing to adequately warn Plaintiff concerning the requirements under FM Global DS 6-9 (2003) for fire suppression on the granola dryer;
14. Defendant is strictly liable for failing to adequately warn Plaintiff concerning what to do in the event they smell a fire in the dryer by failing to place instructions on the dryer itself;
15. Defendant is strictly liable for failing to adequately warn Plaintiff concerning the need to keep doors closed on the dryer until a fire has dissipated and it is safe to enter the dryer; 16. Defendant is negligent for failing to design adequate fire suppression into the granola dryer supplied to Plaintiff:
17. Defendant is negligent for designing a dryer in violation of NFPA 86 (1999) § 3-2.1 in failing to design out the fire hazards inherent in equipment operating at elevated temperatures;
18. Defendant is negligent for designing a dryer in violation of NFPA 86 (1999) Chapter 11 in failing to design the granola dryer with an adequate fire protection system;
19. Defendant is negligent for violating NFPA 86 (1999) § 1-3.4 in failing to comply with NFPA 86 requirements and demonstrating and documenting the safety and validity of the design of the granola dryer:
20. Defendant is negligent for designing a dryer in violation of NFPA 86 (2007) ยง 5.2.1 in failing to design out and minimize the fire hazard inherent in equipment ...

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