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Scorched earth: Pesticide applicator seeks coverage

Scorched earth: Pesticide applicator seeks coverage

March 27
10:10 2018

Scorched earth: Pesticide applicator seeks coverage

DeMeester’s Flower Shop and Greenhouse, Inc., operated a flower shop and lawn care business in Freeport, Illinois. On May 10 and 13, 2013, one of its employees negligently mixed glyphosate (an herbicide, commonly known as Roundup) instead of Eliminate (a selective broadleaf herbicide) in a lawn sprayer. As a result, the employee severely damaged 26 lawns of customers. The flower shop incurred substantial expense for the restoration of the lawns.

At the time of the incident, DeMeester’s was insured under a policy with Florists’ Mutual Insurance Company. The policy included a limited pesticide- or herbicide-applicator endorsement. After Florists’ denied coverage, DeMeester’s filed a three-count complaint. Count I sought a declaration that the coverage provided by the herbicide endorsement included the mistaken herbicide application and that under the Illinois Pesticide Act the exclusions that Florists’ relied on to deny coverage did not apply. Count II asserted a claim for vicarious liability, and Count III alleged that Florists’ agent, John Callaway, had negligently represented to DeMeester’s what was covered in the policy.

Florists’ and Callaway filed a motion to dismiss DeMeester’s complaint, arguing that its claim was barred under the policy’s property damage exclusions. That section stated:


This insurance does not apply to:

* * *

  1. Damage to Property

“ ‘Property Damage’ ” to

* * *

(5) That particular part of real property on which you or any contrac-

tors or subcontractors working directly or indirectly on your behalf are performing operations, if the ‘property damage’ arises out of those operations; or

(6) That particular part of any property that must be restored, repaired or replaced because ‘your work’ was incorrectly performed on it.”

Florists’ and Callaway also asserted that the herbicide endorsement did not override those exclusions.

On November 1, 2016, the court dismissed DeMeester’s entire complaint with prejudice. As to Count I, the court found that the property damage exclusions in the policy barred coverage because the policy was not meant to pay the insured for negligent work that it performed. The court also rejected DeMeester’s argument that the Pesticide Act mandated coverage for property damage. The court explained that DeMeester’s interpretation of the Pesticide Act would “carve out a method whereby contractors who performed work negligently would be compensated for their own negligent work.” The court further found that the mandatory financial responsibility provision in the Pesticide Act was “geared to compensating the aggrieved landowners, not the business which negligently caused the harm.” The court dismissed Counts II and III. DeMeester’s appealed.

On appeal, DeMeester’s challenged the trial court’s ruling only as to Count I of its complaint. DeMeester’s contended that the court erred in determining that the policy’s property damage exclusions applied because they conflicted with the Pesticide Act. DeMeesteer’s insisted that the Pesticide Act reflected Illinois public policy that mandates coverage for parties that are required to purchase coverage, namely itself.

The court rejected DeMeester’s argument as contrary to the plain language of the Pesticide Act. The plain language of the Pesticide Act reveals that it is intended to protect persons who suffer personal injury or property damage as the result of pesticide application. DeMeester’s, the court said, did not suffer any personal injury or property damage. Rather, it caused property damage to its customers’ lawns.

Because DeMeester’s was not an intended beneficiary of the Pesticide Act’s protections, its rights were governed by the terms of its contract with Florists’. Accordingly, the court did not address whether the Pesticide Act superseded the policy provisions, stating that DeMeester’s was not entitled to coverage based on work that it performed incorrectly.

The judgment of the lower court was affirmed.

DeMeesteer’s Flower Shop and Greenhouse, Inc. vs. Florists’ Mutual Insurance Company, Inc.-Appellate Court of Illinois, Second District-October 26, 2017-No. 2-16-1001.


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