After the Burn08/05/2016
The legal path to compensation for a herbicide-damaged crop is long and complex, but there is one simple part: Don’t expect crop insurance to kick in.
“Multi-peril crop insurance is to insure against naturally occurring disasters or problems, like hail storms,” said University of Missouri agricultural economist Ray Massey. “Dicamba drift, or any herbicide drift, is a management problem and isn’t covered.”
With a record number of suspected-dicamba-injury cases being reported in parts of the Midwest and South, farmers may find litigation is their most likely source of compensation, said Ted Feitshans, a North Carolina State University Extension professor who covers environmental and agricultural law.
THE LEGAL PATH AHEAD
Trying to negotiate compensation with the farmer or applicator whom you suspect caused the problem is the simplest first step, but beware of the possible consequences, Feitshans said. He recommends immediately contacting your state department of agriculture and then dialing a lawyer, particularly if you don’t know or trust the person behind the herbicide drift.
“If you think you have pesticide damage, find a lawyer,” he said. “Because it’s really important to move quickly and preserve the evidence. While it’s certainly not true of everybody or even the majority, there are some people who, as soon as they know they may get sued, start destroying evidence and altering records.”
Your neighbor’s liability insurance could cover any damage caused by his herbicides drifting, but don’t count on it, especially if the herbicide was used off-label, Feitshans said. “Most farm liability policies contain an exclusion for illegal acts,” he explained.
Nonetheless, you should try to file a claim with the insurance carrier. “Generally they [the farmer] won’t provide that to you so have to file suit against them first,” Feitshans warned. “At that point, the insurance company will be brought in to decide whether to settle the case or litigate it.”
The good news is that many cases are likely to be settled out of court. “Often the law is too unsettled to go forward in this area,” explained Feitshans. “There are not solid legal precedents one way or the other, which makes insurance companies nervous.”
Even if you aren’t sure litigation is the best path, it’s wise to document the damage as carefully and comprehensively as possible.
The most important step is proving the presence of the suspected chemical on your farm, Feitshans said. That means getting the damaged field tested and taking detailed pictures of the damage with time stamps and detailed notes to authenticate them.
A state department investigation’s findings are extremely valuable, because they are a neutral third party with respected testing standards, Feitshans said.
If possible, don’t wait for damage to show up before reporting a suspected drift event. Dicamba dissipates fairly quickly in a field, so the faster you can get a sample tested, the better, he said.
Don’t despair if the herbicide has vanished from the field before it gets tested. Sometimes experts can testify that the damage in your pictures is consistent with the pattern of damage expected from a certain herbicide, Feitshans said.
Weather stations that record wind speeds and direction are also of value in documenting a possible herbicide application error, Feitshans said. “But you’ll need to get a person qualified with the equipment to check the calibration,” he said.
Rack your brain and write down everything you can remember about the event or anyone who might have witnessed it. “You can testify if you saw plane fly over and what identification it had, for example,” Feitshans said. “Your lawyer will also subpoena the records of the applicator.”
THE OFF-LABEL FACTOR
The cases of suspected dicamba damage cropping up right now have graver consequences because the herbicide in question was likely used off-label, which is a violation of federal law.
“The existence of a violation of federal law makes it easier to prove a case of negligence,” Feitshans said. “It might also move it into the category of gross negligence, which means acting with reckless disregard for the health and safety of others.” In these cases, a jury or judge can award additional, punitive damages beyond the value of the crop lost, Feitshans said. Nor is prison time out of the question.
If you think you may be responsible for dicamba damage to a sensitive crop, you may need two lawyers — one to defend you in the civil case and one to try to get your liability insurance carrier to cover the damage, Feitshans said.
He recommends consulting a criminal defense lawyer. “You have potentially committed a federal felony, and the federal criminal jurisdiction is not a good place to be,” he said. “It’s much harsher than the state courts.”