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Vol. 8 - Issue 5
May 31, 2019


One Of The Most Interesting Insurance Cases I Have Ever Seen


The headline of this article describes Kenyon v. Elephant Ins. Co., No. 04-18-00131 (Tex. Ct. App. Apr. 24, 2019) as one of the most interesting insurance cases that I have ever seen.  It does not say that it is one of the most interesting coverage cases that I have ever seen.  That’s intentional.  Kenyon v. Elephant Ins. is not a coverage case.  However, it is so intimately tied to an insurance policy that I believe CO readers will find it interesting. 

[In the past I have had a laugh at the name Elephant Insurance Company.  They sell their policies for peanuts, I once concluded.  As much as I’d love to do that again, I refrain, as the facts at issue in the case are tragic.]

Kenyon v. Elephant Ins. is a torts case. It reads like something right out of first law school law.       

The tragic facts are these:  On March 10, 2016, Lorraine Kenyon was involved in a single-vehicle accident in San Antonio.  While inside her vehicle, on the side of the road, she called her husband, Theodore, and then Elephant, her insurer.  Elephant’s first notice of loss representative, Kaitlyn Moritz, answered Kenyon’s call from Elephant’s call center in Virginia.  “Kenyon described the accident and asked Moritz: ‘Do you want us to take pictures?’  Moritz answered: ‘Yes, ma’am. Go ahead and take pictures.  And—And we always recommend that you get the police involved but it’s up to you whether you call them or not.’  Moritz testified she was trained to get information about the accident, who was at fault, and whether there were any injuries, as well as to encourage the insured to take photographs of the accident scene.  Moritz was not trained to inquire about the insured’s safety or to ask whether the insured is in a safe location.  While Kenyon was on the phone with Moritz, Theodore arrived at the scene.  Kenyon told Theodore ‘they need pictures,’ and he began taking photographs of Kenyon’s damaged vehicle.  As Theodore was taking photographs, another motorist, Kimberly Pizana, lost control of her vehicle and collided with Theodore.  Theodore later died of his injuries.”

Lorraine Kenyon, as executrix of Theodore’s estate, sued Pizana for negligence, as well as Elephant, asserting various types of negligence claims.

The legal issue, with respect to any liability for Elephant, is easy to see: “The question before the trial court and this court is 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 court concluded that the foremost and dominant consideration, whether a duty exists, is foreseeability.  The court, for various reasons, concluded that, based on a lack of foreseeability, no duty existed. 
There is a lot to the decision, including a lengthy dissenting opinion, but the highlights are as follows:

Kenyon argued that it was “‘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.’  In support, Kenyon cites Elephant’s FNOL representative Moritz’s testimony that she understands ‘there may be dangerous situations or circumstances’ surrounding an insured who calls to report a single-vehicle accident.  Kenyon also cites the testimony of the responding police officer, who stated it is generally not advisable for motorists to photograph crash scenes because doing so ‘put[s] [one]self in danger.’”

However, the court saw it differently, noting that there was “no evidence in the record, however, that Elephant was aware of any prior, similar incidents in which an insured was injured (much less struck by another vehicle) while photographing an accident scene.  There also is no evidence Elephant was aware of the potential risk of injury to Theodore.” 

The court found additional reasons for concluding that Elephant owed no duty:

“While Elephant and its employees may have more knowledge regarding motor vehicle accidents generally, Kenyon was in a better position than a person located in Virginia to assess the risk of Theodore’s and her particular circumstances at the time of the accident.”

“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.  Further, as Elephant argues, even if an insurer is required merely to ask whether its insured is in a safe location, doing so would not have changed the outcome in this case. Kenyon testified she felt she was in a safe place at the time she called Elephant, and she did not believe Theodore was in danger while photographing her vehicle.”

Any good torts case has a dissenting opinion.  And Kenyon does.  The dissenting judge concluded that “Elephant owed Kenyon a duty due to the nature of their relationship.  The ‘special relationship’ between an insurer and an insured was implicated when Elephant began intaking Kenyon’s insurance claim.  Alternatively, the risk—utility factors weigh in favor of recognizing a duty.”

The dissent summarized its lengthy opinion this way: “When a driver, who had just been in a car accident, is on or near the side of the road taking photographs of the scene, the general risks from other cars on the road is foreseeable as a matter of law.  The magnitude of harm is severe bodily injury and death, and given the degree to which an insured is contractually controlled by and situationally reliant on an insurer, insureds are likely to get out of their cars and take photos and, in cases like this one, get hit by another car. This risk is unjustifiable because Elephant hires adjusters to take photographs and document vehicle damage, rendering photographs taken by insureds duplicative, especially in a one-car accident where questions of fault are less important. The risk here is even more unjustifiable considering the danger Elephant’s practice poses to police officers and other first responders. Considering all the facts and evidence presented in this case, I would hold Elephant owed Kenyon a duty.”  

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