Whitlock Air Service Inc. has filed a complaint in a New York federal court against National Union Fire Insurance Co. of Pittsburgh, Pa., challenging the insurer’s denial of coverage for nearly $2.5 million in damages resulting from alleged herbicide misapplication. The dispute centers on the application of herbicides on the wrong areas during a 2018 reservoir construction project in north Texas.

In its legal filing, Whitlock disputes the applicability of several exclusions invoked by National Union, particularly one that bars coverage for property damage arising from the use of "any 'aircraft.'" Whitlock contends that the damages did not result from the aircraft itself but from its alleged failure to correctly select herbicides and spray locations, as well as the lack of approval from Phillips & Jordan Inc. (P&J), the underlying plaintiff in the case.

The claim stems from a project where Whitlock was subcontracted by P&J in July 2021 to perform aerial fertilizer applications. However, P&J filed a lawsuit against Whitlock in October 2022, alleging that Whitlock had improperly applied herbicides to newly seeded grass areas, damaging vegetation and leading to nearly $2.5 million in unanticipated remediation expenses. The lawsuit asserts both breach of contract and negligence claims.

Whitlock asserts that while National Union initially agreed to defend it under a reservation of rights per its "aerial applicator aircraft" policy, the insurer later refused to provide coverage under its aviation Commercial General Liability (CGL) policy in March. The Texas federal court hearing the case stayed the herbicide dispute in September pending resolution of the coverage issue.

Whitlock's complaint focuses primarily on the CGL policy and challenges several exclusions cited by National Union. These include exclusions for property damage to "that particular part of real property" on which Whitlock performed work, and for damage to property that must be "restored, repaired, or replaced" due to Whitlock’s allegedly incorrect work. Whitlock argues that the damages stemmed from its herbicide application beyond the designated areas specified in the subcontract, rather than from the work itself.

The company also disputes National Union’s reliance on a pollution exclusion, arguing that the term "pollution" is vague and undefined in the policy. Furthermore, Whitlock challenges the insurer’s use of a contractual liability exclusion, which bars coverage for liabilities assumed under contracts, maintaining that exceptions to this exclusion apply because its liability would have existed independent of the subcontract and the subcontract qualifies as an "insured contract."

Finally, Whitlock rejected the insurer’s use of an expected or intended injury exclusion, asserting that the company did not expect or intend the damage to the vegetation in question.

The case is ongoing, with Whitlock being represented by Joseph L. Pellis II and Joseph E. Hopkins of Pellis Law Group LLP. Counsel for National Union has not been identified.

The case is Whitlock Air Service Inc. v. National Union Fire Insurance Co. of Pittsburgh, Pa., case number 1:25-cv-00230, in the U.S. District Court for the Southern District of New York.