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Etcheverry v. Tri-Ag Service, Inc.

Court of Appeal of California, Third Appellate District

July 8, 1998, Filed



 [*469]  [**466]   Plaintiffs (Etcheverry) appeal from defense summary judgments in an action for damages to walnut orchards allegedly caused by the application of pesticides. The pesticides were manufactured by defendant Bayer  [**467]  Corporation (Bayer) and sold to Etcheverry by defendant Tri-Ag Service, Inc. (Tri-Ag). Etcheverry alleged that their walnut crop was damaged by the combined application of two pesticides,  [***2]  each of which is subject to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).

Etcheverry's complaint tenders causes of action for misrepresentation, breach of warranty, and manufacturer's liability. The lattermost claim alleges that the pesticides are unsafe without a warning of the damage that can result from the combined application.

The defendants obtained a summary judgment on the ground all of the claims are preempted by FIFRA. We will conclude that FIFRA does not preempt the failure to warn claims and we will reverse the judgment.


The complaint contains the following essential allegations. Bayer manufactured Guthion and Morestan. Paul Osterlie, a pest control advisor licensed under California law, worked for Tri-Ag. In June 1993 Osterlie recommended the combined application of Guthion and Morestan at three pounds each  [*470]  per treated acre, along with other substances, and water delivered in an aggregate of 125 gallons of material per acre. Etcheverry followed Osterlie's recommendations and applied the combination to three orchards, resulting in approximately $ 150,000 damage to the walnut crop.

Bayer moved for summary judgment.  [***3]  In the ensuing proceedings Bayer adduced Etcheverry's answers to contention interrogatories which established the following essential theories of the causes of action.

The active ingredient in Guthion and in Morestan is not very soluble in water. Each of the pesticides uses “surfactant” or adjuvant chemicals to “wet” the active ingredient so that it can be dispensed through a water spray. A sufficient concentration of the surfactant chemicals can solubilize or dissolve waxes on the surface of plant tissue causing damage to the plants (phytotoxicity).

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65 Cal. App. 4th 467 *; 76 Cal. Rptr. 2d 466 **; 1998 Cal. App. LEXIS 615 ***; 98 Daily Journal DAR 7517; 98 Cal. Daily Op. Service 5403; CCH Prod. Liab. Rep. P15,277

MONIQUE ETCHEVERRY et al., Plaintiffs and Appellants, v. TRI-AG SERVICE, INC. et al., Defendants and Respondents.

Subsequent History:  [***1]  Review Granted September 16, 1998 (S072524), Reported at: 1998 Cal. LEXIS 6027.

Reprinted without change in the January 2000 Review Granted Opinions Pamphlet to permit tracking pending review and disposition by the Supreme Ct.

Supreme Court of California Opinion of March 2, 2000, Reported at: 22 Cal. 4th 316.

Prior History: APPEAL from a judgment of the Superior Court of San Joaquin County. Super. Ct. No. 274012. Frank A. Grande and Bobby C. McNatt, Judges.

Disposition: Reversed.


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Business & Corporate Compliance, Environmental Law, Hazardous Wastes & Toxic Substances, Federal Insecticide, Fungicide & Rodenticide Act, Environmental Law, Federal Versus State Law, Federal Preemption, Torts, Procedural Matters, Preemption, General Overview, Products Liability, Types of Defects, Marketing & Warning Defects, Theories of Liability, Strict Liability