SIOUX FALLS — A Harrisburg lawn care company’s insurance policy did not cover the accidental use of a damaging herbicide on more than 300 lawns, a judge has ruled, leaving the company on the hook for any damages.
In an order filed last week, U.S. District Judge Karen Schreir denied Kut and Kill’s partial motion for summary judgment and granted a similar type of motion from their insurer, United Fire.
The case stems from a two-week period in the late-spring and early-summer of 2022, when employees of the Harrisburg lawn care company accidentally applied as many as 302 treatments of a non-selective herbicide and fertilizer combination to yards within the Sioux Falls area. The mix was supposed to combine a selective herbicide with fertilizer.
Kut and Kill said the effects of the non-selective mix took time to cause damage, preventing the company from taking action to prevent the death of the grass on some lawns.
“Kut and Kill is subject to potentially millions of dollars of liability claims, as customers demand a variety of redress, including but not limited to demands for seeding, over-seeding, hydro-seeding, re-sodding and other alleged damages,” Kut and Kill said in a court filing.
In the first week of May 2022, Kut and Kill filed an insurance claim with United Fire, which the company denied. Kut and Kill filed suit against United Fire in June 2022.
In November, United Fire asked the court to move for summary judgment, arguing that the language of Kut and Kill’s policy should be construed that the repeated use of the wrong chemical mix was one single occurrence, and that the insurer would only be liable for a payout of $5,000.
The insurance company also argued that because the damage to property was a result of the incorrect application of chemicals, that it was not covered under the company’s policy.
In her 31-page opinion, Schreier sided with United Fire, in part noting that the lawn care company did not dispute pertinent aspects of the case regarding exclusions to the policy.
“The critical question is whether Kut and Kill incorrectly performed operations at the time it sprayed the lawns and whether those incorrectly performed operations caused property damage that must be restored, repaired or replaced,” Schreier wrote. “Kut and Kill does not dispute that its accidental spraying of glyphosate constitutes property damage that ‘must be restored, repaired or replaced.’”
Other exclusions to Kut and Kill’s policy were found to apply, Schreier determined, citing case law.
In their filings, Kut and Kill claimed the damage to lawns would cost them irreparable damage to their reputation. Online search results of Kut and Kill now route to
a webpage for Black Sheep Landscaping.
The address and phone number for Black Sheep Landscaping matches those for Kut and Kill, according to
a business search
through the South Dakota Secretary of State’s Office. The Black Sheep website also contains images depicting the Kut and Kill logo, as well as plain-text references to Kut and Kill.
A representative from Black Sheep confirmed to Sioux Falls Live that Black Sheep is a “DBA” name — an abbreviation for “doing business as” — of Kut and Kill.
A South Dakota native, Hunter joined Forum Communications as a reporter for the Mitchell (S.D.) Republic in June 2021 and now works as a digital reporter for Sioux Falls Live, with a primary focus on crime in Sioux Falls and government in Lincoln County.
