AUSTIN, Texas (Legal Newsline) – A car insurance company isn’t liable for telling a client to take a picture of her single-car accident and the death that resulted from that instruction.
The Texas Supreme Court on April 22 struck down wrongful death claims against Elephant Insurance Company, which covered Lorraine Kenyon when she lost control of her car on a wet road and struck a guardrail.
Husband Theodore came to the scene while Lorraine called EIC. She asked “Do you want us to take pictures?” and the company’s representative said “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.”
The court noted there was no discussion about when and where to take the accident pictures. Theodore arrived and stood off-road taking pictures.
Another driver lost control of their vehicle and struck Theodore and Lorraine’s car.
“The call ended with the call-center employee making a 911 call at Kenyon’s request,” Justice John Devine wrote. “Theodore sustained fatal injuries and died on the way to the hospital.”
Lorraine sued EIC for ordinary negligence, negligent training and licensing, negligent undertaking and gross negligence. She said the EIC rep was negligent in instructing her to take unnecessary pictures of a single-car accident.
The rep said she was trained to obtain as much information about accidents as possible and encourage those involved to take photos. She was not trained to ask about a client’s safety or whether they are in a safe location.
“Even so, Kenyon testified that she did not expect Elephant’s employee to provide safety guidance, that she believed she and Theodore were safe, and that if either of them had felt otherwise, they would have taken appropriate precautions,” Devine wrote.
Devine wrote the negligence claims failed to show an “applicable” legal duty.
The duty Kenyon urges the Court to adopt here bears no resemblance to the duty of good faith and fair dealing,” Devine wrote. “Kenyon’s negligence and gross-negligence claims against Elephant for lack of appropriate ‘guidance’ are not based on ‘unequal bargaining power,’ ‘the nature of insurance contracts,’ ‘tak(ing) advantage’ of the insured’s misfortunes, ‘bargaining for settlement or (resolution of) claims,’ or the deprivation of any contractually assured benefit.”