                             Fourth Court of Appeals
                                     San Antonio, Texas
                                  DISSENTING OPINION
                                       No. 04-18-00131-CV

     Lorraine KENYON, Individually and as Executrix of the Estate of Theodore Kenyon,
                                      Appellant

                                                 v.

                         ELEPHANT INSURANCE COMPANY, LLC,
                                      Appellee

                    From the 224th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2016CI14055
                           Honorable Michael E. Mery, Judge Presiding

                   DISSENT TO OPINION ON EN BANC RECONSIDERATION
Opinion by: Luz Elena D. Chapa, Justice
Dissenting Opinion by: Sandee Bryan Marion, Chief Justice
Dissenting Opinion by: Rebeca C. Martinez, Justice

Sitting en banc:       Sandee Bryan Marion, Chief Justice
                       Rebeca C. Martinez, Justice
                       Patricia O. Alvarez, Justice
                       Luz Elena D. Chapa, Justice
                       Irene Rios, Justice
                       Beth Watkins, Justice
                       Liza A. Rodriguez, Justice

Delivered and Filed: April 1, 2020

       I join Chief Justice Marion in dissent and concur with her Phillips factor analysis. I would

reach the same result but would add to her foreseeability and social utility discussions.

       Appellant Lorraine Kenyon argues on appeal “[w]hile insurers might not have a duty to

protect their insureds from harm or to ensure their safety generally, insurers do owe a duty to their
Dissenting Opinion                                                                  04-18-00131-CV


insureds not to increase the danger to them at that time of vulnerability, and Elephant breached

that duty when it told the Kenyons to take photographs of the accident scene and placed Mr.

[Theodore] Kenyon in position to be struck and killed.” This argument posits that injury to

Theodore Kenyon was readily foreseeable given the general nature of accident scenes on the

roadway as being dangerous. The inquiry I believe is not whether there is evidence that Elephant

was aware of any prior, similar incidents in which an insured was injured while photographing an

accident scene. Instead, the inquiry should be whether the injuries to Theodore Kenyon, one not

involved in the accident but who arrived at some time post-accident, were the reasonably

foreseeable consequence of Elephant’s act or omission. In other words, is it reasonably foreseeable

that a person not involved in the accident would arrive at the scene, begin to take photographs

from a place susceptible to injury, and be injured?

        Moreover, if this consequence is reasonably foreseeable, is there social utility of warning

a person involved in an accident of risks that another person who may respond may face? While

it may be arguably neither improbable nor unforeseeable that persons not involved in an accident

may arrive upon the scene of an incident and be subject to risk of harm, as to social utility, I do

not believe this risk imposes a duty on insurers to warn persons in accidents about the risks to

persons who may arrive to assist. See Edward D. Jones & Co. v. Fletcher, 975 S.W.2d 539, 544-

45 (Tex. 1998) (holding that the risk that an elderly person may not appreciate the significance of

a stock transaction is neither improbable nor unforeseeable but that this risk of injury does not

warrant treating the elderly differently). The facts of this case demonstrate why the risk is too

remote to impose a duty. Here, there is no evidence that Kenyon made Elephant aware of any

foreseeable risk of harm to Mr. Kenyon. In fact, there is no evidence that Elephant was made




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Dissenting Opinion                                                                 04-18-00131-CV


aware that Mr. Kenyon had arrived at the scene or had placed himself in a situation that posed a

known risk of injury.

        A review of Kenyon’s recorded call to Elephant’s representative Kaitlyn Moritz reveals

that Kenyon provided her name, policy number, time of the accident, and contact information. The

conversation was interrupted briefly, as follows:

        Kenyon:         Just – Just a second. (Speaking to someone else) No. Thank you very much
                        for caring. All right.

                        All right. I’m sorry. That was – the Fire Department stopped by.

        Moritz:         Okay. That’s fine.

        Kenyon:         Uh-huh. And do you have another question now?

        Moritz:         What cell phone provider do you have?

        Kenyon:         AT&T.

        Moritz:         AT&T? Okay. And which vehicle was this?

        Kenyon:         It’s the 2 – 2006 Ford Ranger.

        Moritz:         And so how did the incident happen?

        Kenyon:         I was coming around the – a bend when – it’s raining here and it’s really
                        wet, and the car started to slide and it spun and I hit a – a hill.

        Moritz:         Okay.

        Kenyon:         Do you want us to take pictures?

        Moritz:         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.

                        Is your vehicle drivable?

        Kenyon:         No, it’s not.




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Dissenting Opinion                                                                   04-18-00131-CV


Moritz next inquired whether there was vehicle damage and if Kenyon had any injuries. Kenyon

replied, “no injuries.” Moritz asked, “No?” Kenyon indicated, “just scared and a little sore.” After

Moritz asked where the incident occurred and whether she knew who was towing the vehicle, the

call continued as follows:

        Kenyon:        No. No. You – You’re the first call I made. Well, I made a call to my
                       husband, who was home, thank God, and then you –

        Moritz:        Okay.

        Kenyon:        – you’re my second call.

        Moritz:        Okay. And pictures – And you said you’re going to take pictures. And the
                       vehicle is not drivable. Let me go back real quick.

                       It does look like you have roadside assistance towing on the policy, so what
                       I can do is, I can go ahead and transfer you over to them, that way - -

        Kenyon:        Uh-huh.

        Moritz:        – they can help you out with getting the vehicle towed.

Kenyon then asked again about calling the police, and Moritz repeated her recommendation that

she call the police, then asked if she could assist Kenyon further with anything else. Kenyon

replied, “No. I’ve never had an accident.” The last question Kenyon asked was whether she should

dial 911, and Moritz’ reply was interrupted by Kenyon’s exclamation of her husband’s name

“Ted,” followed by “Oh my God. Please dial 911 and get help. They’ve just run over my husband.

The same thing happened to another car.”

        The transcript of Kenyon’s call reflects Kenyon informing Moritz that she had called her

husband first, who was at home, before calling Elephant. The transcript does not reveal evidence

of Elephant’s awareness that Mr. Kenyon had arrived on the scene and does not include Kenyon’s

statement to her husband to take pictures.




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Dissenting Opinion                                                                 04-18-00131-CV


        It may be reasonably foreseeable that individuals other than emergency personnel may

arrive upon the scene of an incident, and the risk of injury to these individuals may be neither

improbable nor unforeseeable. However, to the question of whether these injuries were the

reasonably foreseeable consequence of Elephant’s act or omission, I believe the answer is no. I

do not believe this general risk imposes a duty on insurers to warn persons in accidents about the

risks to other persons who may arrive to assist.

                                                    Rebeca C. Martinez, Justice




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