• March 6, 2013
Roofing Aggregate

Roofing Aggregate

Americans are not fussy eaters by and large but everyone draws the line somewhere.

Some readers, for example, might balk at pepperoni pizza topping.  (What is pepperoni anyhow?  What parts of the pig are we eating (or, more importantly, what parts AREN’T we eating?))  Other readers may have a bigger problem with roofing aggregate on or in one’s mozzarella cheese.

When Cargill hired Ron Burge Trucking to haul salt to Leprino’s for Leprino’s to make mozzarella cheese, the trucks allegedly had been inadequately cleaned from the last shipment of roofing aggregate, in violation of the transport contract.  You’d think that would be a fairly straightforward case where the trucking company needs to fork over money to to Leprino’s and Cargill to make it right when they had to throw out a million pounds or so of mozzarella, no?


Burge tells a different story, pointing out that Cargill inspected the trailer before the salt was loaded into it and found no problems, and also that the salt delivered to Leprino was mixed with another load of salt before being used to make the cheese. (Cargill contends that this is not borne out by the record, which shows the salt hoppers at Leprino were empty when Cargill’s salt was unloaded from Burge’s truck.) In addition, Leprino discovered the rock granules in the brine five days before discontinuing production of the cheese, and in fact stopped production only when a magnet found a staple in the brine solution. Finally, when Burge tested the cheese, it found no rocks whatsoever in the cheese itself.

While there is no question that Burge breached the contract, there are questions of fact as to whether that breach was the proximate cause of Cargill’s (and Leprino’s) damages. Indeed, Cargill’s statement at the hearing that Burge could argue causation to the jury admits that there are questions regarding causation. But causation is an essential element of Cargill’s breach of contract claim. In other words, if there are questions of fact as to causation, summary judgment on the breach of contract claim is not appropriate. Cargill’s Motion on this claim is denied.

Ouch.  Sr. U.S. District Court Judge Paul A. Magnuson (D. Minn.) denied Cargill’s motion for summary judgment at least in part due to a concession at oral argument on the motion that Burge could argue causation to the jury.  (Note to self:  when arguing for summary judgment for one’s client, do not suggest that there remain issues triable to a jury to win on one’s claim.)

On the other hand, when one finds rocks and staples in the cheese-making brew and has to throw out one million pounds of cheese, and there does not appear to have been any other reason to toss out the 500 tons of cheese, is there really a triable issue to a jury as to whether the trucking company that hauled the “rock salt” (a term of art here) caused the mishap?

Do Cargill and Leprino’s have to have saved some pebbles and staples and engage in a chain-of-custody kind of demonstration to trace them back to Burge?

In yesterday’s post, Minnesota Litigator addressed the challenge of estimating the cost of litigation.  We will never know what probability plaintiffs in this case assigned to winning on summary judgment.  From where I sit (admittedly far away from the details of the case), I might have assigned a pretty high probability of a win on summary judgment.  I would have been wrong.  It seems that plaintiffs might have a more costly battle on their hands than they might have predicted at the outset.

Seth Leventhal has been a Minnesota trial lawyer since 1996.  Minnesota businesses and individuals do not need a legion of lawyers for every commercial or business dispute.  For most legal disputes, you need one good lawyer and you should get the best you can find.  If you have business or commercial litigation in state or federal court in Minnesota that you want handled efficiently, ethically, and cost-effectively, call: 612-234-7349.

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