A recent decision out of the San Antonio Court of Appeals tilted Kenyon v. Elephant Insurance Company described a matter where Lorraine Kenyon (“Kenyon”) was involved in a single vehicle accident when she lost control of her vehicle. While inside her vehicle on the side of the road, Kenyon first called her husband and then her Insurer. During the call, Kenyon described the accident and asked the Insurer’s representative (“Representative”), “Do you want us to take pictures?” the Representative answered: “Yes, ma’am. Go ahead and take pictures.” While Kenyon’s spouse was taking photographs, another motorist lost control of her vehicle and collided with him. Kenyon’s spouse later unfortunately died of his injuries.

Kenyon brought a claim against the Insurer for common law negligence, negligent undertaking, negligent failure to train and license, negligence per se, and exemplary damages based on gross negligence.  The trial court granted summary judgment in favor or the Insurer on most of Kenyon’s claims, which included Kenyon’s common law negligence claim, based on its conclusion that the Insurer did not owe Kenyon a duty of care. In response, Kenyon argued the trial court erred because an Insurer owes its Insured a common law duty to “exercise reasonable care in providing [post-accident] guidance so as not to increase the risk of harm to its insured.”

On appeal, the court questioned whether Texas law recognizes a duty on the part of an Insurer who accepts a call from its insured and provides “post-accident guidance.”  The appellate court applied the “Phillips factors” analysis (which include weighing the risk, foreseeability, and likelihood of injury against the social utility of the conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant) to determine whether to recognize such a duty in the case.

In a case in which a duty has not been recognized under the particular circumstances presented, a court must determine whether such a duty should be recognized. In doing so, the court declared that of all the factors involved in the Phillips factors analysis, “foreseeability of the risk is the foremost and dominant consideration, the court reasoned. “In the absence of foreseeability, there is no duty.”

On the topic of foreseeability, Kenyon argued “[i]t is readily foreseeable that in sending an insured out into the accident scene to take photographs, the insured might be struck by another vehicle and injured.” However, because there was no evidence the Insurer was aware of Kenyon’s surroundings or had any knowledge of any prior, similar incidents in which an Insured was injured, the foreseeability consideration weighed against finding a duty in this case. The appellate court went on to state that, “even where it is generally foreseeable that ‘there may be dangerous situations or circumstances,’ a defendant has no legal duty to protect a plaintiff from a particular injury the defendant could not reasonably have foreseen.”

Additionally, the appellate court found that the Insurer did not have superior knowledge of any risk because Kenyon was in a better position to assess the risk of her situation. Finally, the appellate court determined that “while the burden to inquire whether an insured is in a safe location when she calls to report a claim is not onerous, the burden to actually assess whether an insured is safe and secure enough to report a claim or take photographs of vehicle damage is likely too onerous for an insurer that is not present at the accident scene.”

As a result, the court found that because the considerations regarding risk and foreseeability, superior knowledge and right to control the actor who caused the harm, and burden on the Insurer all weighed against finding a common law duty of care, affirming the trial court’s finding that the Insurer owed no duty to Kenyon with respect to her common law negligence claim.

Similarly, the court found that the Insurer did not owe Kenyon a duty with respect to her claims for common law negligence, negligent undertaking, negligent failure to train and license, negligence per se, and gross negligence, and affirmed the trial court’s order granting summary judgment.