Under well-established Texas law, an insurance agent who undertakes to procure insurance for another
owes his client the common-law duties to use reasonable diligence in attempting to place the requested
insurance and to inform the client promptly if he is unable to do so. May v. United Servs. Ass'n of Am., 844
S.W.2d 666, 669 (Tex. 1992); Sonic Sys. Int'l, Inc. v. Croix, 278 S.W.3d 377, 389 (Tex. App.-Houston [14th
Dist.] 2008, pet. filed).
The agent has no duty to extend the client's insurance protection merely because the agent may know of
the client's need for additional insurance, especially in the absence of evidence of prior dealings in which
the agent customarily has attended to the client's insurance needs without consulting her. McCall v.
Marshall, 398 S.W.2d 106, 109 (Tex. 1965); Critchfield v. Smith, 151 S.W.3d 225, 230 (Tex. App.-Tyler
2004, pet. denied); Moore v. Whitney-Vaky Ins. Agency, 966 S.W.2d 690, 692 (Tex. App.-San Antonio
1998, no pet.).
According to the uncontroverted summary-judgment evidence, Leigh requested from Kuenstler only that
he procure insurance coverage in an amount at least equal to the coverage provided to Leigh's parents
under their automobile insurance policies. Leigh's parents had $20,000 in UM/UIM coverage; Kuenstler
procured $50,000 in UM/UIM coverage for Leigh. Thus, he fulfilled his common-law duty to Leigh, and as
a matter of law, he had no duty to do more.
Leigh argues that the affidavit of her expert, Roy L. Phillips, raises a genuine issue of material fact on the
question of whether Kuenstler owed her a duty to procure UM/UIM coverage in an amount equal to her
liability coverage. But the existence of a duty is not a question of fact but a question of law for the court to
decide “from the facts surrounding the occurrence in question"; thus, our analysis is unaffected by
Phillips's affidavit. Moreover, his conclusions, which are contrary to governing law, are based at least in
part on assumptions that are contrary to the undisputed facts. See Burroughs Wellcome Co. v. Crye,
907 S.W.2d 497, 499 (Tex. 1995) (“When an expert's opinion is based on assumed facts that vary
materially from the actual, undisputed facts, the opinion is without probative value and cannot support a
verdict or judgment."); see also Burrow v. Arce, 997 S.W.2d 229, 236 (Tex. 1999) (explaining that an
expert opinion with no demonstrable basis lacks probative value).
We conclude that the trial court did not err in granting summary judgment in Kuenstler's favor on Leigh's
common-law negligence claim, and we overrule Leigh's appellate issue as it pertains to this cause of
Leigh v. Kuenstler (Tex.App.- Houston [14th Dist.] Oct. 1, 2009)(Guzman)
(DTPA, dispute about allegedly inadequate UIM insurance coverage; insurance agent's duty to procure
insurance; judgment for defendant affirmed)
AFFIRMED: Opinion by Justice Eva Guzman
Before Justices Anderson, Guzman and Boyce
14-08-00245-CV Theresa Leigh v. Richard Kuenstler, Jr.
Appeal from 55th District Court of Harris County
Trial Court Judge: Jeff Shadwick