In Brake Landscaping & Lawncare, Inc. v. Hawkeye-Security Ins. Co., No. 09-3874 (8th Cir. Nov. 1, 2010), insured landscaping contractor Brake, intending to apply a selective herbicide to customers’ lawns in order to kill weeks, instead mistakenly applied a non-selective herbicide which killed all of the vegetation. Brake replaced or repaired the customers’ lawns and then sought reimbursement from its CGL insurer, Hawkeye. After Hawkeye denied coverage, Brake filed suit. The federal district trial court granted summary judgment for Hawkeye. On appeal, the U.S. Court of Appeals for the Eighth Circuit, affirmed. Applying Missouri law, the court held that, even assuming an “occurrence,” all of the property damage fell within exclusions j.(5) and j.(6) which apply to “property damage” to:
5. That particular part of real property on which you or any contractors 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.
The court rejected Brake’s “that particular part” argument that the exclusions did not apply because it was performing operations or work on the weeds rather than the grass, finding that “because spraying herbicide on the grass was an integral part of the job of killing the weeds in the lawns, the lawns were the particular part of the real property that was the subject of Brake’s operations.” The court next rejected Brake’s “completed operations” argument on the basis that, although the property damage did not manifest until several days after application of the herbicide, it occurred at the time of application while Brake was performing operations or work.