CHICAGO — A state appeals panel has affirmed a lower court's decision to allow an insurance company to deny coverage to a flower and lawn care business whose employee accidentally destroyed several clients' lawns by spraying them with an herbicide instead of a fertilizer.
Justice Mary Seminara-Schostok of the Illinois Second District Appellate Court rejected an appeal from DeMeester’s Flower Shop and Greenhouse Inc. of a decision in favor of defendant Florists’ Mutual Insurance Company Inc., which had refused to insure the Freeport-based lawn and garden care company for the cost of 26 damaged lawns caused by negligent employees.
Justices Robert McLaren and Michael Burke concurred. The Second District court convenes in west suburban Elgin.
In 2013, a DeMeester employee allegedly carelessly mixed a harmful herbicide in a lawn sprayer, causing 26 customers' lawns to become severely damaged, costing the businesses a substantial amount of money to replace. However, the shop was insured with limited pesticide-or herbicide-applicator coverage and filed a claim for reimbursement that was denied.
Filing a three-count complaint in the circuit court, DeMeester argued the policy exclusions cited by the insurer to deny coverage did not apply, asserting vicarious liability and alleging they had been misled about the coverage. Florists’ countered with a motion to dismiss, arguing shop's claim was barred under property damage exclusions in the insurance policy. In 2016, the trial court dismissed the plaintiff’s entire complaint with prejudice.
Stephenson County Circuit Judge David Jeffrey dismissed the first count, noting the policy was not meant to repay the policyholder for negligent work performed by shop employees. He disagreed with the flower shop's assertions that the Illinois Pesticide Act mandated coverage for any property damage.
Analyzing the trial court’s dismissal, Seminara-Schostok discussed DeMeester's contention the court was mistaken in finding property damage exclusions in the insurance policy since they conflicted with the Pesticide Act.
If “words used in the policy, given their plain and ordinary meanings, are unambiguous,” then the verbiage must be applied as written,” according to Seminara-Schostok. “...The language must be afforded its plain, ordinary and popularly understood meaning. 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.”
According to Florists’. Cf. Great American Insurance Co. v. Brad Movers Inc 1978, the flower shop was not an intended recipient of the Pesticide Act’s protections, the justice said.
“Its rights were governed by the terms of its contract with (claimants were statutory beneficiaries whose rights could not be defeated by the terms of a contract to which they were not parties),” Seminara-Schostok wrote.
Seminara-Schostok did not address the trial court’s dismissal of the second and third counts.