United States District Court, D. Maine
STARR SURPLUS LINES INSURANCE COMPANY, as subrogee to AdvancePierre Foods, Inc., Plaintiff,
MOUNTAIRE FARMS INC., Defendant.
ORDER ON DEFENDANT'S MOTION TO DISMISS
LEVY, U.S. DISTRICT JUDGE
Plaintiff, Starr Surplus Lines Insurance Company
(“Starr”), asserts that Mountaire Farms Inc.
(“Mountaire”) delivered raw chicken products
contaminated with Salmonella bacteria to AdvancePierre Foods,
Inc. (“AP”) that resulted in a recall of more
than 1, 700, 000 pounds of AP's product and an insurance
payout of ten million dollars by Starr to AP. Starr, as
subrogee, seeks repayment of the amount paid under the
insurance policy. In its Complaint, Starr brings claims for
breach of the implied warranty of merchantability, 11
M.R.S.A. § 2-314 (2018) (Count I), breach of the implied
warranty of fitness for a particular purpose, 11 M.R.S.A.
§ 2-315 (2018) (Count II), and a claim for strict
liability, 14 M.R.S.A. § 221 (2018) (Count III).
Mountaire has moved to dismiss Starr's Complaint pursuant
to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon
which relief may be granted (ECF No. 18). For the reasons
that follow, I grant the Motion.
following factual allegations from the Complaint are accepted
as true for the purposes of the Motion to Dismiss.
raw chicken parts at its Portland facility to create
ready-to-cook chicken dishes for retail. In 2014, Mountaire
contracted with AP to deliver raw chicken parts to AP
throughout 2015. In February 2015, Mountaire shipped
approximately 120, 000 pounds of fresh, boneless chicken
breasts to AP's Portland facility. Soon thereafter,
individuals in Minnesota and Wisconsin became infected with
Salmonella Enteritidis (“Salmonella”),
which was reported to the United States Food Safety
Inspection Service (“FSIS”). The FSIS linked the
illnesses to AP's raw chicken and issued a public health
alert on July 1, 2015, leading AP to initiate a recall that
eventually included 1, 707, 494 pounds of raw chicken
product. As a result of the recall, AP sustained losses in
excess of ten million dollars, including damages resulting
from “the return and destruction of the recalled
chicken products, lost sales opportunities, loss of business,
and loss of customers.” ECF No. 1-3 at ¶ 20. AP
used its computer system to trace the source of the
Salmonella to two truckloads of raw chicken parts it had
received from Mountaire in February 2015. AP submitted an
insurance claim to Starr under a Starr Response Product
Contamination Policy for damages sustained in connection with
the recall. Pursuant to the insurance policy, Starr paid AP
ten million dollars, the policy limit. Starr now brings this
subrogation action to recover all payments it made to AP
associated with the product recall.
STANDARD OF REVIEW
moves to dismiss the Complaint for failure to state a claim
upon which relief may be granted. See Fed. R. Civ.
P. 12(b)(6). To survive a motion to dismiss, the Complaint
“must contain sufficient factual matter to state a
claim to relief that is plausible on its face.”
Rodríguez-Reyes v. Molina-Rodríguez,
711 F.3d 49, 53 (1st Cir. 2013) (internal quotation marks
omitted). In evaluating a motion to dismiss, the Court will
accept well-pleaded facts as true and draw all reasonable
inferences in the Plaintiff's favor. Id. at
52-53. Determining the plausibility of a claim is a
context-specific task that requires the court “to draw
on its judicial experience and common sense.”
Id. at 53 (quoting Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009)).
makes four arguments for dismissal: (1) all of Starr's
claims fail because Salmonella is an inherent and recognized
characteristic of raw chicken; (2) Starr's strict
liability claim is barred by the economic loss doctrine; (3)
AP's contract with Mountaire waives all prior warranties,
including the implied warranties of merchantability and
fitness for a particular purpose; and (4) Starr's claims
are preempted under the Poultry Products Inspection Act
(“PPIA”), 21 U.S.C.A. § 451, et
seq. (2018). I address Mountaire's first two
arguments. Finding these determinative, I do not address the
contractual waiver or preemption arguments.
Salmonella as a Product Defect
alleges that Starr's claims for breach of
merchantability, breach of fitness for a particular purpose,
and strict liability all fail because it is widely known that
Salmonella is inherent in raw chicken and is eliminated
through cooking. As such, Mountaire argues, Salmonella cannot
render the chicken “defective, ” “unfit for
its particular purpose, ” or “unreasonably
dangerous, ” which are the essential elements of each
of Starr's claims, respectively.
are two tests that the Maine Law Court has applied when faced
with a defective food product claim. The traditional test,
called the “foreign-natural test, ” provides that
a food manufacturer cannot be strictly liable for supplying a
product with natural ingredients that is free of foreign
ingredients. See Kobeckis v. Budzko, 225 A.2d 418,
423 (Me. 1967) (holding that pork seller did not breach
implied warranty of fitness for a particular purpose because
the injury-causing trichinae was a “natural”
rather than “foreign” attribute of raw pork). In
Estate of Pinkham v. Cargill, Inc., the Law Court
rejected the foreign-natural test in the context of food
strict liability claims, instead adopting the
“reasonable expectations test.” 55 A.3d 1, 5 (Me.
2012). “The reasonable expectation test provides that,
regardless whether a substance in a food product is natural
to an ingredient thereof, liability will lie for injuries
caused by the substance where the consumer of the product
would not reasonably have expected to find the substance in
the product.” Id. (quoting Jackson v.
Nestle-Beich, Inc., 589 N.E.2d 547, 548 (Ill. 1992)).
involved a consumer who was seriously injured after eating a
turkey sandwich with pieces of bone in the turkey.
Id. at 3. Applying the reasonable expectations test,
the Law Court concluded that whether the average consumer
would reasonably expect to find a bone in turkey meat, and
therefore whether the processed turkey was defective, were
disputed questions of fact that precluded summary judgment.
Id. at 7. Cargill did not expressly address
warranty claims and thus it is unclear whether the reasonable
expectation test adopted in Cargill also applies to
warranty claims, or whether the foreign-natural test adopted
more than forty years earlier by Kobeckis still
applies to warranty claims. It is unnecessary, however, to
determine which test controls under current Maine law to
decide the motion to dismiss in this case because Mountaire
prevails under either test.
the more demanding reasonable expectation test to the facts
alleged in Starr's Complaint, an average consumer-and
certainly a sophisticated commercial consumer such as AP,
Starr's subrogor-should reasonably expect that raw,
uncooked chicken is not safe for human consumption. Although
the Law Court noted in Cargill that “whether a
consumer would reasonably expect to find a particular item in
a food product is normally a question of fact that is left to
a jury, ” 55 A.3d at 7, the reasonable expectations of
AP can be determined as a matter of law because, as
recognized by numerous ...