Hendrickson

Melvin and Virginia Hendrickson, individually and doing business as Crown Nursery (collectively appellants), appeal a summary judgment in favor of their insurers, Zurich American Insurance Company of Illinois and Zurich Insurance Company (collectively Zurich), in appellants’ action against Zurich for failure to defend and indemnify them in a third party action. We reverse.

Background

Appellants operate a commercial nursery which produces and sells strawberry nursery stock to third party growers. A number of growers who purchased strawberry plants from appellants sued them, alleging that an aerially sprayed herbicide which causes systemic damage to strawberry plants drifted onto appellants’ property and stock of strawberry plants, which appellants then negligently sold to the growers.

The growers’ first cause of action for negligence alleges that appellants sold them the damaged plants even though appellants knew or should have known that the herbicide spray causes systemic damage to strawberry plants such that when replanted they die or become stunted. The growers’ second cause of action for breach of warranty alleges that appellants breached an implied warranty that…