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Inc. v. Florists' Mutual Insurance Co., Inc.

Court of Appeals of Illinois, Second District

October 26, 2017

DEMEESTER'S FLOWER SHOP AND GREENHOUSE, INC., Plaintiff-Appellant,
v.
FLORISTS' MUTUAL INSURANCE COMPANY, INC., and JOHN CALLAWAY, Defendants-Appellees.

         Appeal from the Circuit Court of Stephenson County. No. 15-L-11, Honorable David L. Jeffrey, Judge, Presiding.

          SCHOSTOK JUSTICE delivered the judgment of the court, with opinion. Justices McLaren and Burke concurred in the judgment and opinion.

          OPINION

          SCHOSTOK JUSTICE.

         ¶ 1 In this insurance-coverage action, the plaintiff, DeMeester's Flower Shop and Greenhouse, Inc., contends that the defendant Florists' Mutual Insurance Company, Inc. (Florists'), has a duty to indemnify it for the amounts it spent to replace 26 lawns that were damaged due to the negligence of one of its employees. The circuit court of Stephenson County dismissed the plaintiff's action pursuant to section 2-615 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-615 (West 2012)). The plaintiff appeals from that order. We affirm.

         ¶ 2 BACKGROUND

         ¶ 3 The basic facts are not in dispute. The plaintiff operates a flower shop and lawn care business in Freeport. 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 plaintiff's employee severely damaged 26 of the plaintiff's customers' lawns. The plaintiff incurred substantial expense for the restoration of the lawns.

         ¶ 4 At the time of the incident, the plaintiff was insured pursuant to a policy with Florists'. That policy included a limited pesticide- or herbicide-applicator coverage endorsement. After Florists' denied coverage, the plaintiff 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 the policy exclusions that Florists' relied on to deny coverage did not apply. The plaintiff relied on the following provisions of the Illinois Pesticide Act (415 ILCS 60/1 et seq. (West 2012)):

"A licensed commercial applicator [of pesticide] must provide to the Director [of Agriculture] at the time of original licensing and license renewal evidence of financial responsibility protecting persons who may suffer personal injury or property damage or both as a result of the pesticide operation of the applicant in either of the following manners: ***
B. Evidence of responsibility may be provided in the form of a certificate of liability insurance providing coverage for each licensed commercial applicator or licensed entity in the amount of not less than $50, 000 per person, $100, 000 per occurrence bodily injury liability coverage, with an annual aggregate of not less than $500, 000, and $50, 000 per occurrence property damage liability, with an annual aggregate of not less than $50, 000; or in lieu thereof, a combined single limit of not less than $100, 000 bodily injury and property damage liability combined, with an annual aggregate of not less than $50, 000." 415 ILCS 60/10(3) (West 2012).

         Count II asserted a claim for vicarious liability, and count III alleged that Florists' agent, defendant John Callaway, had negligently represented to the plaintiff what was covered in the insurance policy.

         ¶ 5 The defendants filed a motion to dismiss the plaintiff's complaint, pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2012)), arguing that the plaintiff's claim was barred under the property-damage exclusions contained in the policy. That section of the policy stated:

"Exclusions
This insurance does not apply ...

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