DEMEESTER‘S FLOWER SHOP AND GREENHOUSE, INC., Plaintiff-Appellant, v. FLORISTS’ MUTUAL INSURANCE COMPANY, INC., and JOHN CALLAWAY, Defendants-Appellees.
No. 2-16-1001
Appellate Court of Illinois, Second District
October 26, 2017
2017 IL App (2d) 161001
Decision Undеr Review: Appeal from the Circuit Court of Stephenson County, No. 15-L-11; the Hon. David L. Jeffrey, Judge, presiding. Judgment: Affirmed.
Robert M. Fagan, of Law Offices of Robert M. Fagan, Ltd., of Freeport, for appellant.
Thomas B. Keegan, of Senak Keegan Gelason Smith & Michaud, Ltd., of Chicago, for appellees.
OPINION
¶ 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 сircuit court of Stephenson County dismissed the plaintiff‘s action pursuant to section 2-615 of the Code of Civil Procedure (Code) (
¶ 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 сoverage, the plaintiff filed a three-count complaint. Count I sought a declaration that the coverage provided by the herbicide endorsement included thе 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 (
“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 certificаte 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 аn 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 (
“Exclusions
This insurance does not apply to:
* * *
j. Damage to Property
” ‘Property Damage’ ” to
* * *
(5)That particular part of real propеrty on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the ‘property damage’ arisеs 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.”
The defendants also asserted that the herbicide endorsement did not override those policy exclusions.
¶ 6 On November 1, 2016, the trial court dismissеd the plaintiff‘s entire complaint with prejudice. As to count I, the trial court found that the property-damage exclusions in the policy barred coverage because the policy was not meant to pay the plaintiff for negligent work that it performed. The trial court also rejected the plaintiff‘s argument that the Pesticide Act mandated coverage for property damage. The trial court explained that the plaintiff‘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 trial court further found that the mandatory-financial-resрonsibility provision in the Pesticide Act was “geared to compensating the aggrieved landowners, not the business which negligently caused the harm.” The trial court dismissed count II on thе basis that vicarious liability is not itself a cause of action. The trial court dismissed count III because it found that a claim for negligent misrepresentation was barred by the Moorman doctrine. Fоllowing the trial court‘s ruling, the plaintiff filed a timely notice of appeal.
¶ 7 ANALYSIS
¶ 8 On appeal, the plaintiff challenges the trial court‘s ruling only as to count I of its complаint. The plaintiff contends that the trial court erred in determining that the property-damage exclusions in the policy applied because they conflicted with the Pеsticide Act. The plaintiff insists that the Pesticide Act reflects Illinois public policy mandating coverage for parties that are required to purchase coverаge, namely itself.
¶ 9 A motion to dismiss brought under section 2-615 tests the legal sufficiency of the complaint. On review, the inquiry is whether the allegations of the complaint, when construed in thе light most favorable to the plaintiff and taking all well-pleaded facts and all reasonable inferences that may be drawn from those facts as true, are sufficient to establish a cause of action upon which relief may be granted. Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 305 (2008). Because Illinois is a fact-pleading jurisdiction, a plaintiff must
¶ 10 A court‘s primary objective in construing the language of an insurance policy is to ascertain and give effect to the intentions of the parties as expressed by the language of the policy. Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 391 (1993). Like any contract, an insurance policy is to be construed as a whole, giving effect to evеry provision, if possible, because it must be assumed that every provision was intended to serve a purpose. Valley Forge Insurance Co. v. Swiderski Electronics, Inc., 223 Ill. 2d 352, 362-63 (2006). If the words used in the policy, given their plain and ordinary meаnings, are unambiguous, they must be applied as written. Id. at 363.
¶ 11 The cardinal rule of statutory construction is to ascertain and give effect to the legislature‘s intent. Paszkowski v. Metropolitan Water Reclamation District of Greater Chicago, 213 Ill. 2d 1, 6 (2004). Our analysis begins within the statutory language, which remains the best indication of that intent. Metzger v. DaRosa, 209 Ill. 2d 30, 34-35 (2004). The language must be afforded its plаin, ordinary, and popularly understood meaning. People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 279 (2003). When the language is unambiguous, the statute must be applied as written without resorting to other aids of construction. Lawrence v. Regent Realty Group, Inc., 197 Ill. 2d 1, 10 (2001).
¶ 12 We reject thе plaintiff‘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 pеrsons who suffer personal injury or property damage as the result of pesticide application. The plaintiff here did not suffer any personal injury or propеrty damage. Rather, it caused property damage to its customers’ lawns. To accept the plaintiff‘s argument would require us to interpret the terms “cause” and “suffer” аs synonymous. That we decline to do.
¶ 13 As the plaintiff was not an intended beneficiary of the Pesticide Act‘s protections, its rights were governed by the terms of its contract with Florists. Cf. Great American Insurance Co. v. Brad Movers, Inc., 65 Ill. App. 3d 357, 362 (1978) (claimants were statutory beneficiaries whose rights could not be defeated by the terms of a contract to which they were not parties). Accordingly, we need not аddress whether the Pesticide Act superseded the policy provisions stating that the plaintiff was not entitled to coverage based on work that it incorrectly performed.
¶ 14 CONCLUSION
¶ 15 For the foregoing reasons, the judgment of the circuit court of Stephenson County is affirmed.
¶ 16 Affirmed.