David L.

Mazaroli
Attorney for Plaintiff
250 Park Avenue 7
th
Floor
New York, NY 10177
Tel. (212)267-8480
Fax. (212)732-7352
e-mail: dlm@mazarolilaw.com
----------------------------------------------------------------x
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------------x
INDEMNITY INSURANCE COMPANY OF
NORTH AMERICA as subrogee of Perrigo
Company,

Plaintiff,

- against -

FOODLINER, INC.,

Defendant.
:

:

:

:

:

:
ECF CASE


14 Civ. 8165(PAC)

COMPLAINT
-----------------------------------------------------------------x

Plaintiff, through its undersigned attorney, alleges as follows for its complaint
against defendant upon information and belief:
FIRST CAUSE OF ACTION
1. Plaintiff Indemnity Insurance Company of North America (hereinafter
IINA or Plaintiff) is a corporation organized under the laws of, and with its principal
place of business in, the State of Pennsylvania. IINA maintains a place of business
within this district at 1133 Avenue of the Americas, New York, NY 10036.
2. IINA insured the shipment in suit during the subject transportation and,
having paid the insurance claim arising from the claimed shortage, loss and damage, sues
as subrogee and assignee of Perrigo Company, who was at all material times the
purchaser, owner, and consignee of the shipment
Case 1:14-cv-08165-PAC Document 1 Filed 10/10/14 Page 1 of 6
2

3. Defendant Foodliner Inc. (hereinafter Foodliner or Defendant) is
believed to be a corporation organized under the laws of, and with its principal place of
business in, one of the fifty states. At all material times Foodliner maintained a
statutorily required registered agent for service of process in New York.
4. This Court has federal question subject matter jurisdiction pursuant to 28
U.S.C. 1331 as this action arises from the carriage of goods in interstate commerce and
is governed by the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C.
14706 and/or federal common law. Concurrently there is pendent, ancillary and
supplement jurisdiction as to certain aspects of the claim in suit.
5. Upon information and belief Foodliner at all material times maintained
routes and conducted business within the State of New York as a common carrier of
cargo for hire, including with respect to the pick up, carriage and delivery of cargo, and
the provision of services related thereto, and is subject to the in personam jurisdiction of
this Court.
6. This action involves shortage, loss and damage to a shipment of 19,740.0
kilograms of Harcroft PAMS CoBlend 133, also described as aluminum magnesium
sorbitol, (hereinafter referred to as the Shipment) which was purchased by Perrigo Co.
from the shipper SPI Pharma, Inc.
7. For agreed compensation, Foodliner contracted to carry the Shipment
from Lewes, Delaware, to Allegan, Michigan, as the receiving and/or delivering and/or
performing carrier.
Case 1:14-cv-08165-PAC Document 1 Filed 10/10/14 Page 2 of 6
3

8. As a common carrier of cargo for hire, Foodliners contractual, statutory,
and federal law duties included the obligation to provide the care which the nature of the
cargo required.
9. As a common carrier of cargo for hire, Foodiners contractual, statutory,
and federal law duties also included the obligation to carry the Shipment in a vehicle
which was in all respects fit and cargoworthy.
10. On or about May 2, 2013 the Shipment was loaded in good order and
condition into trailer 306110 which was the conveyance vehicle designated and provided
by Foodliner for purposes of the subject interstate carriage.
11. The Shipment was received in good order and condition into the custody
and control of Foodliner, and a clean bill of lading was issued without exception or
notation for shortage, damage or loss to the Shipment of any kind.
12. When the Shipment was delivered by Foodliner there was evidence of
shortage, loss and damage to the subject cargo.
13. The aforesaid shortage, loss and damage rendered the Shipment unfit for
intended usage.
14. The aforesaid shortage, loss and damage occurred while the Shipment was
in the care, custody and control of Foodliner.
15. Said shortage, loss, and damage to the Shipment was the result of
Foodliners failure to properly carry and care for the Shipment during the subject
interstate transportation and its fundamental breaches of, and material deviations from,
the governing carriage contract.
Case 1:14-cv-08165-PAC Document 1 Filed 10/10/14 Page 3 of 6
4

16. The damage to the Shipment was not caused by circumstances which
would give rise to a defense or exception to liability under the Carmack Amendment,
federal common law, or the governing contract of carriage.
17. By reason of the aforesaid, Plaintiff, and those on whose behalf it sues, has
sustained damages in the amount of $35,915.25, no part of which has been paid although
duly demanded, and for which Foodliner is liable without limitation of any kind.
18. Plaintiff sues on its own behalf and as agent and trustee for and on behalf
of anyone else who may now have or hereafter acquire an interest in this action.
19. Plaintiff, and those on whose behalf it sues, has performed all conditions
precedent required of them under the premises.
SECOND CAUSE OF ACTION
20. Plaintiff repeats and realleges the allegations set forth in Paragraphs 1
through 19 of this complaint.
21. Foodliner was acting as a bailee of the Shipment at the time the claimed
shortage, loss and damage to the Shipment occurred.
22. Foodliner thereby, or through its contractors, agents, servants or sub-
bailees, warranted and had a legal duty to safely keep, care for and deliver the Shipment
in the same condition as when entrusted to it and to perform its services as bailee or to
ensure that those services were performed with reasonable care and in a workmanlike and
non-negligent manner. Foodliner breached those bailment obligations and negligently
failed to deliver the Shipment in the same order and condition as when it was received at
the point of origin.
Case 1:14-cv-08165-PAC Document 1 Filed 10/10/14 Page 4 of 6
5

23. By reason of the foregoing, Foodliner has caused damage to Plaintiff, and
to the others on whose behalf Plaintiff sues, in the amount of $35,915.25.
THIRD CAUSE OF ACTION
24. Plaintiff repeats and realleges the allegations set forth in Paragraphs 1
through 19 of this complaint.
25. Foodliner, directly or through its employees, agents, or independent
contractors, willfully, recklessly or negligently and/or with gross negligence failed to
exercise the degree of care in relation to the Shipment which a reasonably careful person
would exercise under like circumstances, and/or willfully, recklessly or negligently
and/or with gross negligence failed to carry the Shipment such as reasonably required and
would be sufficient to care for and prevent damage to the Shipment.
26. The damage to the Shipment was proximately caused by Foodliners
willful, reckless, negligent and/or grossly negligent conduct.
27. As a result Foodliner is liable to Plaintiff for damage in the amount of
$35,915.25.
WHEREFORE, Plaintiff respectfully requests entry of judgment against
defendant Foodliner, Inc.
a. for the sum of $35,915.25;
b. for prejudgment interest at the rate of 9% per annum;

c. for reasonable attorneys fees and the costs of this action;
d. for such other and further relief as this Court deems proper and just.





Case 1:14-cv-08165-PAC Document 1 Filed 10/10/14 Page 5 of 6
6

Dated: New York, New York
October 9, 2014

Law Office
David L. Mazaroli

s/David L. Mazaroli
_____________________________
David L. Mazaroli
Attorney for Plaintiff
250 Park Avenue 7
th
Floor
New York, New York 10177
Tel.: (212)267-8480
Fax.: (212)732-7352
E-mail: dlm@mazarolilaw.com








Case 1:14-cv-08165-PAC Document 1 Filed 10/10/14 Page 6 of 6