Kissan Berry Farm v. Whatcom Farmers Coop
| Decision Date | 06 September 2022 |
| Docket Number | 82774-0-I (consolidated with No. 82775-8-I, No. 82776-6-I, No. 82777-4-I, No. 82778-2-I) |
| Citation | 516 P.3d 821 |
| Parties | KISSAN BERRY FARM, a general partnership, Appellant, v. WHATCOM FARMERS COOP, a/k/a WFC, a/k/a Whatcom Farmers Co-op, a Washington corporation; CHS Inc., a foreign corporation; and Syngenta Crop Protection, LLC, a foreign limited partnership, a/k/a Syngenta US, a/k/a Syngenta, Respondents. G&B Farm, a partnership, and G&B Growers, LLC, a limited liability company, Appellants, v. Whatcom Farmers Coop, a/k/a WFC, a/k/a Whatcom Farmers Co-op, a Washington corporation; CHS Inc., a foreign corporation; and Syngenta Crop Protection, LLC, a foreign limited partnership, a/k/a Syngenta US, a/k/a Syngenta, Respondents. JS Berry Farm, LLC, a limited liability company, Appellant, v. Whatcom Farmers Coop, a/k/a WFC, a/k/a Whatcom Farmers Co-op, a Washington corporation; CHS Inc., a foreign corporation; and Syngenta Crop Protection, LLC., a foreign limited partnership, a/k/a Syngenta US, a/k/a Syngenta, Respondents. Ken Sidhu Farms, LLC, a limited liability company Appellant, v. Whatcom Farmers Coop, a/k/a WFC, a/k/a Whatcom Farmers Co-op, a Washington corporation; CHS Inc., a foreign corporation; and Syngenta Crop Protection, LLC, a foreign limited partnership, a/k/a Syngenta US, a/k/a Syngenta, Respondents. Maluka Farm, a general partnership, Appellant, v. Whatcom Farmers Coop, a/k/a WFC, a/k/a Whatcom Farmers Co-op, a Washington corporation; CHS Inc., a foreign corporation; and Syngenta Crop Protection, LLC, a foreign limited partnership, a/k/a Syngenta US, a/k/a Syngenta, Respondents. |
| Court | Washington Court of Appeals |
Jeffrey Alan Thigpen, Attorney at Law, 119 N Commercial St. Ste. 430, Bellingham, WA, 98225-4476, for Appellants.
Ryan Wayne Vollans, Williams Kastner, 601 Union St. Ste. 4100, Seattle, WA, 98101-1368, Sarah N. Turner, Gordon & Rees LLP, 701 5th Ave. Ste. 2100, Seattle, WA, 98104-7084, Don Willenburg, Gordon Rees Scully Mansukhani, LLP, 1111 Broadway, Suite 1700, Oakland, CA, 94607, for the Respondents.
PUBLISHED OPINION
¶1 Five farms sued Syngenta Crop Protection LLC, manufacturer of the herbicide Callisto, and Whatcom Farmers Coop and its successor entity, CHS Inc., Callisto's distributors, for damages allegedly caused to their raspberry crops. The trial court dismissed, finding the Federal Insecticide, Fungicide and Rodenticide Act preempted the farms’ two express warranty claims. The farms appeal that dismissal and associated denials of their motions to amend their complaints, supplement briefing, and several related motions to reconsider those rulings.
¶2 Because Bates v. Dow Agrosciences LLC, 544 U.S. 431, 125 S. Ct. 1788, 161 L. Ed. 2d 687 (2005) superseded Washington precedent holding Federal Insecticide, Fungicide and Rodenticide Act preempts express warranty claims, we reverse.
¶3 In 2012, five raspberry farms in Whatcom County—Kissan Berry Farm, Ken Sidhu Farms LLC, JS Berry Farm LLC, G&B Farm & G&B Growers LLC, and Maluka Farm—purchased the herbicide Callisto on the basis of representations made by Aaron Bagwell, a representative of Whatcom Farmers Coop (WFC). As WFC's "field man," Bagwell was known and trusted by the farms, was familiar with their crops and equipment, and frequently made suggestions about best practices. Though the exact nature of Bagwell's statements is in dispute,1 their general character is not: Bagwell recommended Callisto's use for weed control in their raspberry fields and represented that it was "safe" to use on red raspberry.
¶4 Callisto is an herbicide manufactured by Syngenta. Its EPA2 -approved labeling—which fills a 31-page booklet—includes a number of disclaimers and warranties and provides detailed descriptions of the product's uses and dangers.
¶5 Its general disclaimer is located close to the front of the booklet and begins by stating that It then specifies particular risks:
Crop injury, ineffectiveness or other unintended consequences may result because of such factors as manner of use or application, weather or crop conditions, presence of other materials or other influencing factors, in the use of the product, which are beyond the control of SYNGENTA CROP PROTECTION LLC or Seller.
It specifies that, to the extent permissible under relevant law, "Buyer and User agree to hold SYNGENTA and Seller harmless for any claims relating to such factors."
¶6 The booklet continues directly into Syngenta's warranty, which incorporates by reference some of the language of the disclaimer:
SYNGENTA warrants that this product conforms to the chemical description on the label and is reasonably fit for the purposes stated in the Directions for Use, subject to the inherent risks referred to above, when used in accordance with directions under normal use conditions.
Similar in structure to the disclaimer, the warranty—"[t]o the extent permitted by applicable law"—disavows any liability for use contrary to the labeling instructions or under conditions not reasonably foreseeable. It ends by denying availability of "incidental, consequential, or special damages," limiting remedy to the purchase price of the product.
¶7 The booklet's "Directions for Use"—incorporated in both the disclaimer and warranty language quoted above—include directions specific to red raspberries. They state: "Callisto may be applied as a pre-bloom post-directed spray in ... red raspberry." They prescribe an application rate of no more than two fluid ounces per acre per year in "bush or caneberries," and direct that if two applications are made they should be separated by at least two weeks.
¶8 Bagwell recommended an application of two fluid ounces per acre. The farms purchased the herbicide from Bagwell and applied it at two fluid ounces per acre. Syngenta admits that this application is "consistent" with the product guide's instructions.
¶9 About two weeks after application, raspberry plants at each of the farms began to exhibit signs of damage and then die. Bagwell, asked by some of the farms to assess the harm and its cause, indicated that he suspected Callisto. Representatives from Syngenta subsequently visited the farms, and the farms report that they confirmed Callisto was the likely cause. The farms’ owners replanted their fields to different degrees, accruing a range of costs. They allege that Callisto's lingering effects on their land affected not only their 2012 crop yield but also demonstrably reduced their production capacity for several years thereafter.
¶10 In 2016, each farm separately sued3 Syngenta, WFC, and CHS Inc., which had merged with WFC in 2015. The complaints were structured similarly, alleging against WFC/CHS and Syngenta a series of breaches of express warranty arising both from Bagwell's comments to the farms and from Callisto's labeling. The first claim, against WFC, identified Bagwell's oral representations as giving rise to an express warranty upon which the plaintiffs relied. The second claim incorporated the oral express warranty claim against CHS in its capacity as WFC's corporate successor, having inherited WFC's assets and liabilities post-merger. The third claim asserted that WFC was acting as Syngenta's agent when selling Callisto, and that Syngenta, through that agency relationship and Bagwell's oral representations, shared liability under the oral express warranty theory.
¶11 The fourth and final claim concerned an express warranty theory not premised on Bagwell's representations. Instead, this claim—brought against Syngenta in its capacity as the booklet's author—relied on the express warranty language of the Callisto product guide. The claim's language, which the litigation process would eventually subject to considerable scrutiny, included several portions of particular note. It contended that "[a]lthough the booklet ... contained some safety warnings about the handling and application of Callisto, it contained no warnings of any kind that if Callisto were applied to control weeds in areas where raspberry plants were being grown that there was a risk that it could cause harm to the plants." (Emphasis added.) The same paragraph of the complaints quoted the express warranty language of the product guide, and the following paragraph quoted the guide's statement that Callisto could be applied "as a pre-bloom post-directed spray in ... red raspberry." The complaints concluded that "[t]he printed representations set forth in paragraphs 37[, the express warranty language,] and 38, [on application to raspberries,] when considered in combination, constitute an express warranty by Syngenta that, as long as the application directions were properly followed, Callisto would not cause harm to raspberry plants."
¶12 Though the lawsuits were initiated in March 2016, the Syngenta summary judgment motion that serves as the main vehicle for this appeal was not brought until December 2020. The motion framed only one issue: "[w]hether Plaintiffs’ express warranty claims against Syngenta and CHS are preempted by [the Federal Insecticide, Fungicide and Rodenticide Act4 (FIFRA)] because to prevail, the Court would have to impose requirements in addition to or different from the requirements imposed by FIFRA and approved by the EPA." However, the motion also briefly contended that the farms had not produced any evidence of an agency agreement between Syngenta and WFC and that their "agency allegation" should therefore be dismissed.
¶13 WFC and CHS perfunctorily joined Syngenta's motion for summary judgment, adding no argument but asserting that "[b]ased on the same law, argument, and evidence ... [WFC] and CHS Inc[.] are also entitled to summary judgment." The farms’ response did not address Syngenta's agency argument, instead focusing on "the single issue...
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