In an extensive ruling, a Texas Court of Appeals in Kenyon v. Elephant Ins. Co., LLC, No. 04-18-00131-CV, 2020 WL 1540392 (Tex. App. Apr. 1, 2020), held, on first impression, that an insurer’s claim handlers owed the insured a direct duty to prevent physical harm to a spouse at the scene of an accident. Under the facts of the case, the insured, Lorraine Kenyon, was involved in an automobile accident in Texas. She called her insurance company, Elephant, to report the collision. She also called her husband to come to the scene of the accident. When the husband arrived at the scene, his wife was speaking with the Elephant adjuster. The adjuster advised the wife to take some photos of the damaged vehicle in order to assist in adjusting the claim. The wife, in turn, told her husband to take the photographs. While taking the photographs, the husband was struck by another vehicle and was killed. Thereafter, the wife sued Elephant for numerous causes of action in tort, including negligence gross negligence, negligent undertaking, and negligent training. These claims were dismissed by the trial court, finding that the insurance company owed the Kenyons no obligation to protect them from bad drivers at an accident scene. The Court of Appeals reversed.
Under the majority opinion, the Elephant adjuster, by suggesting that the wife take photographs of the vehicle damage, put the wife and the husband in a zone of danger in which the husband was struck by another vehicle and killed. The District Court found that Elephant owed the Kenyons no general duty of care, however. The dissent wrote that while insurers do owe a special duty to their insureds, and that duty obligated the insurance company to exercise proper care in the determination of contractual benefits owed, that duty was not a general duty to protect the insureds from unreasonable risks of harm. The dissent argued that because the adjuster had no control over the accident scene and no ability to assess the risks of a second collision, that the fault for the second accident lay solely with the driver that struck the husband.