Insurer Launches $5.7M Suit Over DuPont Herbicide

The Cincinnati Insurance Co. on hit DuPont Co. with a lawsuit to recover $5.7 million it paid to cover policyholders who faced litigation over property damage allegedly caused by the company's discontinued herbicide Imprelis.

Imprelis, used for weed control, lawn care, landscaping, grounds maintenance and similar activities, proved to be toxic to desirable as well as undesirable plants and trees, according to Cincinnati's complaint. The U.S. Environmental Protection Agency forced DuPont to stop selling the product in August 2011 because of the damage it was causing to trees and other plants.

Cincinnati policyholders Five Seasons Landscape Management Inc. and Land-Tech Enterprises Inc. allegedly used Imprelis in their business activities and incurred liability exposure of several hundred thousand dollars for the loss of valuable landscape plantings killed by Imprelis.

"Cincinnati Insurance Co. has paid approximately $5.7 million to resolve the exposure of its insureds, Five Seasons and Land-Tech," the complaint said. "With this action, Cincinnati Insurance Co. seeks to recover from E.I. du Pont de Nemours and Co. the amounts it has paid to resolve the exposure of its insureds, Five Seasons and Land-Tech."

According to the complaint, DuPont describes Imprelis as a "potassium salt of aminocyclopyrachlor." Aminocyclopyrachlor is nonvolatile, highly soluble in water and highly mobile in soil, the complaint said, and breaks down slowly, so that it persists in the environment.

"Aminocyclopyrachlor is a potent herbicide that DuPont marketed as a means of eradicating undesirable 'target' vegetation such as ground ivy, dandelions, clover and other weeds," the complaint said. "Aminocyclopyrachlor has also proved to be toxic to desirable and valuable 'nontarget' vegetation such as trees, vegetables and plants."

DuPont marketed Imprelis to commercial users, such as landscape companies, lawn care professionals, golf courses, and country clubs, the complaint said.
The EPA registered Imprelis for use as a selective broad leaf herbicide in August 2010. According to an EPA letter to DuPont, test data showed the product was killing trees and plants not intended for destruction by product users.

"The label for Imprelis contains directions for use that provide for its application near trees," the EPA said in its letter to DuPont. "The label for Imprelis does not warn or caution about potential damage to trees when used in accordance with the approved label."

The EPA said based on tests and inspections, it had reason to believe that the Imprelis labeling does not contain directions for use and warning or caution statements that are adequate to protect the environment, names, certain species of trees.

Five Seasons and Land-Tech have incurred exposure for damage to property belonging to their customers that was caused by their use of Imprelis, the complaint said.

"Each of the claimants against Five Seasons has executed an agreement that vests Cincinnati with subrogation rights to pursue DuPont for damage caused by Imprelis," Cincinnati said.

Cincinnati is represented by John K. Benintendi.

Counsel information for DuPont was not immediately available.