Lorraine Kenyon, Individually and as of the Estate of Theodore Kenyon v. Elephant Insurance Company, LLC ( 2020 )

Fourth Court of Appeals
San Antonio, Texas
OPINION
p
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
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 Rodriguez, Justice
Delivered and Filed: April 1, 2020
DISMISSED IN PART, REVERSED IN PART
This court previously ordered en banc reconsideration. We now withdraw our prior
opinions and judgment and substitute today’s opinions and judgment in their stead.
04-18-00131-CV
INTRODUCTION
This permissive appeal arises from a wrongful death and survival action involving
Theodore Kenyon, who died in the second of two successive car accidents. Lorraine Kenyon,
individually and as executrix of her husband’s estate, appeals a partial summary judgment on her
claims against Elephant Insurance Company for misrepresentation under the Insurance Code and
Texas Deceptive Trade Practice Act (DTPA), common law negligence, negligent undertaking,
negligent training, and gross negligence. We dismiss in part and reverse in part.
FACTUAL BACKGROUND
Elephant is in the business of selling auto insurance. Elephant sells personal injury
protection coverage, collision coverage, and uninsured/underinsured motorist coverage. Elephant
also offers roadside assistance coverage. Under Elephant’s standard auto insurance policy, an
insured must report an accident or loss within 24 hours or “as soon as practicable.” An insured
must also fully cooperate with Elephant during its investigation of an insurance claim. Otherwise,
coverage could be denied.
Although an accident or loss may be reported within a 24-hour period from time of
occurrence, Elephant’s insureds, including those with roadside assistance, sometimes call to report
a claim from the scene of a car accident. For those who do, Elephant trains its first notice of loss
(FNOL) representatives to “encourage [insureds] to take [pictures] of all vehicles involved.”
Elephant’s FNOL representatives are aware “there may be dangerous situations or circumstances
for [those] at the scene of an accident.”
Elephant’s FNOL representatives also encourage insureds to “get the police involved.”
From a first responder’s perspective, an insurance company that encourages insureds to take
pictures at the scene of an accident increases safety hazards; the practice exposes the insured,
police officers, and other first responders to an increased risk of harm from other drivers; and, at
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accident scenes, police officers have “more issues with people getting out of cars to photograph
crash scenes than anything else.”
Elephant encourages insureds to take pictures of the scene of the accident to determine
fault and liability, but often uses for investigation purposes pictures of car damage that are taken
the “day, week, or month” after an accident. In addition to obtaining pictures from its insureds,
Elephant’s adjusters independently obtain pictures of car damage after an accident is reported and,
under the policy, its adjusters “appraise any damaged auto . . . before any repair or disposal.”
Elephant has a one-page script its representatives use to collect information on FNOL calls.
This script contains questions or prompts from which FNOL representatives can determine
whether an insured’s car is covered by the policy, the type of coverage the insured has, and whether
the accident involves multiple cars or only one car. Elephant also trains its representatives to ask
for pictures and information from the police “on every FNOL call, every time.” The reason for
encouraging insureds to take pictures at the scene of a one-car accident has been questioned
because, as one police officer testified during his deposition, when the policy’s coverage is
“comprehensive, you know who’s going to pay, you know who’s at fault because you’re by
yourself.”
The Kenyons contracted with Elephant by purchasing a policy that includes roadside
assistance coverage. One day, Lorraine Kenyon was involved in a one-car accident. It was raining,
the road was very wet, and Kenyon’s car slid, spun, and hit a guardrail. Kenyon first called her
husband Theodore, who arrived at the scene. She then called Elephant to report the accident and
described the incident in detail to Katlyn Moritz, Elephant’s FNOL representative who answered
Kenyon’s call. Moritz obtained Kenyon’s policy number; noted Kenyon had roadside assistance
coverage; encouraged Kenyon to call the police; and opined as to Kenyon’s potential liability for
damage to the guardrail.
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Moritz also instructed Kenyon, “Go ahead and take pictures.” Kenyon then told Theodore
to take pictures. While Theodore was taking pictures, another car, in the same manner as Kenyon’s
car, slid off the road and struck him. Theodore died as a result of the injuries he sustained from the
collision. After the accident, and at an off-accident-site location, Elephant obtained pictures of the
damage to Kenyon’s car in order to process Kenyon’s insurance claim. Elephant, however, insisted
that Kenyon first waive all of her and Theodore’s causes of action before processing her
uninsured/underinsured motorist claim.
PROCEDURAL BACKGROUND
Kenyon filed a wrongful death and survival action in district court. In addition to suing the
driver who struck Theodore for negligence, Kenyon sued Elephant. Kenyon alleged claims against
Elephant based on several different negligence theories, misrepresentation under the Insurance
Code and DTPA, and failure to timely settle and pay her uninsured/underinsured motorist claim.
Elephant moved for summary judgment, presenting various traditional and no-evidence
grounds. The trial court rendered summary judgment on all claims except Kenyon’s untimely
settlement claim. The order specified the sole basis for rendering partial summary judgment was
Elephant “owed no duty” to the Kenyons.
The trial court granted Kenyon permission to appeal the order. The permission was limited
to the negligence claims. Kenyon filed a petition for permissive appeal, arguing the controlling
question of law for the permissive appeal was “[t]he existence of a legal duty.” Kenyon’s petition
did not address her claims of negligence per se and negligent failure to train. Elephant urged this
court to grant Kenyon’s petition to answer the controlling question of law regarding duty. This
court then accepted this permissive appeal.
On original submission, a panel of this court dismissed the appeal in part and affirmed in
part. Kenyon timely filed a motion for panel rehearing, which was denied. While this court had
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plenary power, the court permitted the filing of a motion for en banc reconsideration, which
Kenyon timely filed. After Elephant filed a response, this court ordered en banc reconsideration.
We now turn to the merits of this appeal in light of the motion, response, original briefing, and the
record before us.
THE SCOPE OF THIS PERMISSIVE APPEAL IS LIMITED TO THE ISSUE OF DUTY
The following principles help clarify why the narrow scope of our appellate review in this
permissive appeal is limited to the issue of duty.
A. Summary Judgment Standards
“We review a summary judgment de novo.” Valores Corporativos, S.A. de C.V. v. McLane
Co., 945 S.W.2d 160, 162 (Tex. App.—San Antonio 1997, writ denied). A de novo review means
we “apply[] the same standard that the trial court[] applied in the first instance,” Tex. Mut. Ins. Co.
v. Jerrols, 385 S.W.3d 619, 623 (Tex. App.—Houston [14th Dist.] 2012, pet. dism’d), and we step
“in the shoes of the trial judge.” TIMOTHY PATTON, SUMMARY JUDGMENTS IN TEXAS § 8.06[1] (3d
ed. 2019). We review the record and determine “‘anew’ all grounds and issues raised by each
timely filed motion and response.” Id. (citing authorities). “[W]e will uphold a summary judgment
only if the summary judgment record establishes that there is no genuine issue of material fact,
and the movant is entitled to judgment as a matter of law on a ground set forth in the motion.”
Valores Corporativos, 945 S.W.2d at 162.
1. The Ground Set Forth in the Motion
The scope of our de novo review of summary judgments is limited. Hardaway v. Nixon,
544 S.W.3d 402, 412 (Tex. App.—San Antonio 2017, pet. denied). “When a defendant moves for
summary judgment, he must expressly state in the motion the specific grounds upon which relief
is sought, and summary judgment may only be granted on those grounds.” Id.; see TEX. R. CIV. P.
166(c), (i); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 340 (Tex. 1993). “The term
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‘grounds’ means the reasons that entitle the movant to summary judgment, in other words, ‘why’
the movant should be granted summary judgment.” Hardaway, 544 S.W.3d at 412. “The scope of
a trial court’s power to render summary judgment is measured by the scope of the predicate motion
for summary judgment and the specific grounds stated therein,” and our de novo review is limited
accordingly. Id. Thus, “a summary judgment cannot be affirmed on grounds not expressly set out
in the motion.” See Stiles v. Resolution Tr. Corp., 867 S.W.2d 24, 26 (Tex. 1993).
A defendant’s summary judgment is a judgment on “a claim [the plaintiff has] asserted.”
TEX. R. CIV. P. 166a(b). A defendant moving for summary judgment must therefore “meet the
plaintiff’s causes of action as pleaded.” Dall. Indep. Sch. Dist. v. Finlan, 27 S.W.3d 220, 231–32
(Tex. App.—Dallas 2000, pet. denied) (citing Cook v. Brundidge, Fountain, Elliott & Churchill,
533 S.W.2d 751, 759 (Tex. 1976)). When a defendant’s summary judgment ground “fail[s] to meet
[the plaintiff’s] claim as pleaded, [the] ground cannot support the summary judgment.” Overnite
Transp. Co. v. Int’l Bhd. of Teamsters, No. 03-00-00390-CV, 2001 WL 300247, at *2 (Tex. App.—
Austin Mar. 29, 2001, pet. denied) (not designated for publication). 1
2. The Parties’ Respective Evidentiary Burdens on Summary Judgment
For traditional summary judgment motions, the movant must produce evidence
conclusively establishing all material facts to demonstrate its entitlement to judgment as a matter
of law on the specific ground expressly presented in the motion. TEX. R. CIV. P. 166a(c); Amedisys,
Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex. 2014). No-evidence
1
See, e.g., Shellnut v. Wells Fargo Bank, N.A., No. 02-15-00204-CV, 2017 WL 1538166, at *5 (Tex. App.—Fort
Worth Apr. 27, 2017, pet. denied) (mem. op.) (reversing summary judgment, holding the summary judgment motion
mischaracterized plaintiff’s claims and challenged issues plaintiff “did not allege”); Letot v. United Servs. Auto. Ass’n,
No. 05-14-01394-CV, 2017 WL 1536501, at *7 (Tex. App.—Dallas Apr. 27, 2017, pet. denied) (mem. op.) (noting,
in reversing summary judgment, defendant “moved for summary judgment on ‘no evidence’ grounds, but based on a
factual theory that [plaintiff] did not allege”); Yeske v. Piazza Del Arte, Inc., 513 S.W.3d 652, 676 (Tex. App.—
Houston [14th Dist.] 2016, no pet.) (reversing summary judgment because summary judgment ground challenged a
different duty than the one plaintiff alleged); Finlan, 27 S.W.3d at 231–32 (reversing summary judgment when the
summary judgment grounds too narrowly characterized the plaintiff’s claims).
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motions for summary judgment must state “there is no evidence of one or more essential elements
of a claim.” See TEX. R. CIV. P. 166a(i). A no-evidence motion may challenge numerous elements
“so long as each element or combination of elements is distinctly and explicitly challenged.”
PATTON, supra, § 5.03[2][b] (citing authorities). If the movant’s initial summary judgment burden
is satisfied, the burden shifts to the non-movant to respond with evidence raising a genuine issue
of material fact as to the summary judgment ground. TEX. R. CIV. P. 166a(c), (i); cf. Amedisys, 437
S.W.3d at 511. “We review the evidence in the light most favorable to the nonmovant and indulge
every reasonable inference and resolve any doubts against the motion.” Scripps NP Operating,
LLC v. Carter, 573 S.W.3d 781, 790 (Tex. 2019). Furthermore, “we take as true all evidence
favorable to the nonmovant.” Dall. Morning News, Inc. v. Tatum, 554 S.W.3d 614, 625 (Tex.
2018).
3. Specification of the Ground for Granting Summary Judgment
A trial court is not required to specify the ground on which it grants summary judgment.
See Weiner v. Wasson, 900 S.W.2d 316, 317 n.2 (Tex. 1995). But when it does, we generally limit
our consideration to that ground. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex.
1996). In a regular appeal, we “may consider other grounds that the movant preserved for review
and trial court did not rule on in the interest of judicial economy.” Id. But we will do so only “when
the record is well developed with regard to those alternate grounds” and when those issues are
properly presented on appeal. In re Brock Specialty Servs., Ltd., 286 S.W.3d 649, 657 (Tex. App.—
Corpus Christi 2009, orig. proceeding).
B. Permissive Appeal Standards
Our scope of review is also limited by permissive appeal standards. Under section 51.014(f)
of the Texas Civil Practice & Remedies Code, an appellate court has discretionary appellate
jurisdiction to accept a timely filed petition for permissive appeal, if the trial court gave written
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permission to appeal. TEX. CIV. PRAC. & REM. CODE § 51.014(d), (f); Sabre Travel Int’l, Ltd. v.
Deutsche Lufthansa AG, 567 S.W.3d 725, 731 (Tex. 2019). Before granting permission to appeal,
the trial court must conclude: (1) an immediate appeal may materially advance the litigation’s
ultimate termination; and (2) the order to be appealed “involves” a controlling question of law for
which there is substantial ground for difference of opinion. TEX. CIV. PRAC. & REM. CODE
§ 51.014(d).
We and other courts have sometimes treated the permissive appeal procedure as a “certified
question” procedure similar to federal courts’ certification of questions to state court, noting courts
and parties “may not add to the trial court’s description of the controlling legal question.” See, e.g.,
Bell v. Chesapeake Energy Corp., No. 04-18-00129-CV, 2019 WL 1139584, at *16 (Tex. App.—
San Antonio Mar. 13, 2019, pet. filed) (mem. op.). We and other courts have also strictly required
a clear substantive ruling on the precise controlling question of law. See, e.g., City of San Antonio
v. Tommy Harral Constr., Inc., 486 S.W.3d 77, 84 (Tex. App.—San Antonio 2016, no pet.) (citing
authorities). In one case, we held the absence of a substantive ruling on the precise controlling
question of law was a jurisdictional defect. See id. In another, we held the lack of a substantive
ruling was not a jurisdictional defect. Gulley v. State Farm Lloyds, 350 S.W.3d 204, 207–08 & n.2
(Tex. App.—San Antonio 2011, no pet.). And, this court has also stated the permissive appeal
statute “does not contemplate use of an immediate appeal as a mechanism to present, in effect, a
‘certified question’ to this Court similar to the procedure used by federal appellate courts in
certifying a determinative question of state law to the Texas Supreme Court.” Id. at 207.
Recently, in Sabre Travel International v. Deutsche Lufthansa AG, the Supreme Court of
Texas implicitly abrogated our cases strictly confining the scope of review in permissive appeals.
567 S.W.3d at 728. There, the supreme court reframed the controlling question of law, addressed
subsidiary and ancillary legal questions not expressly certified in the trial court’s order, and held
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it had appellate jurisdiction despite the absence of a substantive ruling in the trial court’s
certification order. Id. at 727–41. 2 The supreme court explained, “the Legislature modeled section
51.014(d) after the federal counterpart to permissive interlocutory appeals.” Sabre Travel Int’l,
567 S.W.3d at 731. In federal permissive interlocutory appeals, “review is not limited to the
controlling question of law formulated by the district court in its certification order.” Hines v.
Alldredge, 783 F.3d 197, 200 (5th Cir. 2015). “[T]he scope of the issues . . . is closely limited to
the order appealed from, but not to the specific stated question.” 16 CHARLES ALAN WRIGHT &
ARTHUR R. MILLER, FED. PRAC. & PROC. JURIS. § 3929 (3d ed. 2019) (citing authorities).
Nevertheless, our discretionary appellate jurisdiction in a permissive appeal remains
limited. First, our jurisdiction is limited to the order or part of the order the trial court granted
permission to appeal. See TEX. CIV. PRAC. & REM. CODE § 51.014(d), (f). Second, permissive
appeals are “intended to be similar” to the supreme court’s petition for review procedure. TEX. R.
APP. P. 28.3, cmt. to 2011 change; Sabre Travel Int’l, 567 S.W.3d at 731. In the supreme court,
the “brief on the merits must be confined to the issues or points stated in the petition for review.”
TEX. R. APP. P. 55.2. Thus, only those issues that are identified in a petition for permissive appeal
review are properly before us. Cf. In re C.O.S., 988 S.W.2d 760, 769 (Tex. 1999).
C. The Existence of a Legal Duty
Explaining the difference between the elements of duty and breach in Texas law also helps
to clarify the limited scope of this appeal. In Texas, the elements of a negligence claim are the
existence of a legal duty, a breach of that duty, and damages proximately caused by the breach.
Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 352 (Tex. 2015). The existence of a legal
duty is a threshold question. Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499, 503 (Tex. 2017).
2
See Petition for Review, Sabre Travel Int’l, Ltd. v. Deutsche Lufthansa AG, No. 17-0538 (July 7, 2017), at Tab A
(containing the trial court’s order granting permission to appeal).
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The threshold question of duty is “grounded in the public policy behind the law of negligence
which dictates every person is responsible for injuries which are the reasonably foreseeable
consequence of his act or omission.” Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 404
(Tex. 2009). Notably, what the applicable standard of care requires in a particular case is part of
the breach element, not duty. Windrum v. Kareh, 581 S.W.3d 761, 768 (Tex. 2019) (“To establish
breach of a duty, the plaintiff must establish an applicable standard of care.”); Dobbins v. Mo.,
Kans. & Tex. Ry. Co. of Tex., 41 S.W. 62, 63 (Tex. 1897). Thus, the threshold question of duty
does not include whether the facts of the case show a breach. Pagayon, 536 S.W.3d at 504.
Although the distinction between duty and breach is, in some cases, “less clear in
application than in theory,” the Supreme Court of Texas has adopted Dean William Prosser’s
“view that there are four elements to a negligence cause of action: duty, breach, causation, and
damage.” VINCENT R. JOHNSON & ALAN GUNN, STUDIES IN AMERICAN TORT LAW 231 (2d ed.
2009); accord McKinley v. Stripling, 763 S.W.2d 407, 409 (Tex. 1989) (citing W. KEETON,
PROSSER & KEETON ON TORTS § 30 (5th ed. 1984)). The supreme court sometimes combines
proximate cause and damages into a single element, but has never combined the existence of a
duty and breach of the duty into a single element. See, e.g., D. Hous., Inc. v. Love, 92 S.W.3d 450,
454 (Tex. 2002). Although other jurisdictions combine duty and breach under a single element of
“negligence,” we adhere to the supreme court’s longstanding distinction between the two elements,
rather than conflate them. JOHNSON & GUNN, supra, at 231. Consequently, the mere existence of
a duty does not establish “liability” or “negligence”; the existence of a duty is simply a threshold
inquiry that, if satisfied, establishes that certain acts or omissions, if found to have breached the
applicable standard of care, may result in liability for proximately caused damages. See McKinley,
763 S.W.2d at 409.
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D. Conclusion as to the Scope of this Appeal
The scope of this appeal is limited to the issue of duty. First, we hold we have no discretion
to consider other summary judgment grounds because neither party presented any issue other than
duty in the petition for permissive appeal and response. See TEX. R. APP. P. 28.3, cmt. to 2011
change; cf. id. R. 55.2; C.O.S., 988 S.W.2d at 769. Second, we hold Elephant waived or failed to
preserve alternative grounds for our consideration by stipulating the issue of a duty was the
controlling question of law, and urging us to “accept the appeal and resolve the controlling issue.”
Third, to the extent we have discretion to address other summary judgment grounds, we decline to
do so. The purpose of a permissive appeal is to resolve the substance of the legal question the trial
court concluded was controlling because answering the question in an immediate appeal may
materially advance the litigation’s ultimate termination. See Sabre Travel Int’l, 567 S.W.3d at
735–36. Here, the trial court granted Kenyon permission to appeal because the issue of duty was
the controlling question of law and the sole basis for summary judgment. To address grounds the
trial court did not consider is contrary to the intent of Texas’s permissive appeal statute. See id.
And, we cannot say the record has been sufficiently developed with regard to the alternative
grounds in Elephant’s motion. See Brock Specialty Servs., 286 S.W.3d at 657. Nor can we say that,
given the procedural history of this case, addressing other issues at this point in the proceedings
would promote judicial economy.
For these reasons, we confine our review to the duty element of Kenyon’s claims, and do
not consider the other elements Elephant challenged in the trial court. Applying our standards for
permissive appeals and reviewing summary judgments, we conclude our scope of review is limited
to the substance of the controlling question of whether Elephant is entitled to summary judgment
as a matter of law on Kenyon’s negligence claims because Elephant owed no duty to Kenyon. The
substance of the controlling question of law necessarily requires addressing whether the parties
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satisfied their respective summary judgment burdens as to the duty element of each claim for which
the trial court granted Kenyon permission to appeal. 3
MISREPRESENTATION UNDER THE INSURANCE CODE & DTPA
In her appellant’s brief, Kenyon argued the trial court erred by rendering summary
judgment on her misrepresentation claims under the Insurance Code and DTPA. The parties have
agreed and the record confirms the trial court did not grant Kenyon permission to appeal as to these
claims. We therefore dismiss this issue. See In re Estate of Trevino, 195 S.W.3d 223, 226 (Tex.
App.—San Antonio 2006, no pet.).
COMMON LAW NEGLIGENCE
In her live pleading, Kenyon alleged what the trial court referred to in its summary
judgment order as the “common law negligence” claim:
14. NEGLIGENCE. Due to the special relationship between [Elephant] and the
Plaintiffs resulting from the insurer/insured relationship, [Elephant] owed the
Plaintiffs [a] duty to act as a reasonable and prudent insurance company when the
insureds contacted [Elephant] regarding the claim arising from the single-vehicle
accident. [Elephant] breached that duty when it instructed the insureds to take
[pictures] from the scene. As a result of the insureds taking the instructed [pictures],
Theodore Kenyon (deceased) was struck by [another car] and killed.
Kenyon alleged a duty arose at the time her call related to the processing of her insurance claim.
The legal basis for the duty is the special relationship between an insured and insurance company.
Although we do not address the merits of the breach element, we note—to address Elephant’s
arguments—the alleged standard of care is reasonable prudence, and the alleged breach is that
Elephant “instructed the insureds to take [pictures] from the scene.”
3
We do not address Kenyon’s claims of negligence per se and negligent failure to license because those claims were
not raised in Kenyon’s petition for permissive appeal or in her appellant’s brief. See TEX. R. APP. P. 38.1(i).
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A. Kenyon adequately briefed an issue as to the duty element of this claim.
On original submission, the panel disagreed as to whether Kenyon waived her issue as to
a common law negligence duty by inadequately briefing the issue; specifically, by failing to use
the term “special relationship” sufficiently in her brief. Kenyon challenged this holding in her en
banc motion. Elephant has never argued Kenyon inadequately briefed this issue. Given the panel’s
disagreement, we address the adequacy of Kenyon’s appellate briefing.
In her appellant’s brief, Kenyon argued the trial court erroneously rendered summary
judgment on her common law negligence claim. Kenyon cited to the specific page of the record
where the above-quoted claim was pled. Kenyon argued “Elephant owed Mrs. Kenyon the duty to
act as a reasonable and prudent insurer” during the phone call, and dedicated six pages, with
citations to authority, to arguing the phone call related to Elephant processing her insurance claim.
Kenyon clearly argued the trial court erred by granting summary judgment on this claim because
Elephant owed her a duty, citing to the duty she alleged based on a special relationship.
We hold Kenyon adequately briefed this issue. First, the brief substantially complies with
the requirements to present an issue and argument, with citations to the record and authority, to
acquaint us with the issue and enable us to decide the case. See TEX. R. APP. P. 38.1(i), 38.9.
Although Kenyon’s brief does not often use the phrase “special relationship,” Kenyon’s brief cites
to her allegations of a duty arising due to the parties’ special relationship and contains arguments
about the processing of claims. Kenyon’s failure to use “magic words” is not fatal to appellate
review of the issue. See In re I.L., 580 S.W.3d 227, 242 (Tex. App.—San Antonio 2019, pet.
dism’d). We therefore adhere to the supreme court’s “firm[] mandate[] that courts broadly construe
issues to encompass the core questions and to reach all issues subsidiary to and fairly included
within them.” Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 480 (Tex.
2019).
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Second, Kenyon’s brief assigns error to the trial court granting summary judgment on the
duty element of her common law negligence claim. See San Jacinto River Auth. v. Duke, 783
S.W.2d 209, 210 (Tex. 1990) (per curiam); Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121
(Tex. 1970); PATTON, supra, at § 8.03[1] (noting the appellant’s “burden [is] to specifically attack
each basis for the summary judgment”). Elephant has repeatedly demonstrated it has understood
Kenyon’s use of the term “common law negligence” as referring to the negligence claim based on
the alleged special relationship. 4 We will not take a “form-over-substance approach that leads to a
rigid application of our preservation rules.” See Rohrmoos Venture, 578 S.W.3d at 480. We will
therefore review the summary judgment de novo.
B. Kenyon’s summary judgment response did not waive her common law negligence claim.
Elephant argues, “Kenyon waived her common law negligence claim against Elephant”
because her summary judgment response “contained no argument regarding the common law duty
she asserts in this appeal.” We disagree. First, the record does not support this assertion. In
paragraph three of her summary judgment response, Kenyon expressly responded to Elephant’s
mischaracterization of the duty she alleged in support of this claim. Second, a summary judgment
cannot be obtained by default; summary judgment motions “must stand or fall on their own
merits.” McConnell, 858 S.W.2d at 342. We must therefore determine whether Elephant’s motion
stands on its own merits. See id.
4
Elephant acknowledged Kenyon had alleged a duty of reasonable prudence based on a special relationship in its
summary judgment motion and reply, appellee’s brief, its en banc response, and at oral argument.
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C. Elephant’s summary judgment grounds do not establish its entitlement to judgment as a
matter of law on Kenyon’s common law negligence claim.
In arguing the trial court erred by rendering summary judgment on her common law
negligence claim, Kenyon argues Elephant’s summary judgment motion is deficient. She also
argues the evidence raises a fact issue as to the duty she alleged.
1. Elephant’s Traditional Summary Judgment Ground
Elephant’s traditional summary judgment ground on the duty element is deficient in three
ways. Each deficiency prevents the motion from establishing Elephant’s entitlement to judgment
as a matter of law on Kenyon’s common law negligence claim “as pleaded.” 5
a. The traditional ground fails to meet Kenyon’s claim as pleaded.
Elephant’s traditional summary judgment ground on the duty Kenyon alleged in support of
her common law negligence claim was that an insurance company “owes no duty to protect its
insureds’ physical safety.” Kenyon argues on appeal, as she did in her summary judgment
response, that she did not allege Elephant owed a duty to protect its insureds’ physical safety, and
instead alleged a duty of reasonable prudence that exists due to the special relationship between
5
The entirety of the traditional summary judgment ground on this claim is as follows:
A. Negligence
In support of her negligence claim, Kenyon alleges that Elephant owed her and her husband a
duty to act as a reasonable and prudent insurance company due to the “special relationship” between
insurer and insured. The special relationship between insurer and insured gives rise to a duty of good
faith and fair dealing based on the parties’ unequal bargaining power and exclusive control that the
insurer exercises over the processing of claims. This special relationship imposes a duty on the
insurer to investigate claims thoroughly and in good faith, and to deny those claims only after an
investigation reveals a reasonable basis to do so. To prevail on a claim for breach of the duty of
good faith and fair dealing, the insured must establish that the insurer failed to settle or delayed
settlement of a claim when the insurer knew or should have known that it was reasonably clear that
the claim was covered.
Kenyon’s negligence claim fails because her allegation that Elephant failed to exercise
ordinary care when it “instructed” her to take [pictures] has nothing to do with the processing of
claims or Elephant’s failure or delay in paying a claim. Rather, her complaint is that Elephant
failed to ensure her husband’s safety – a duty Elephant does not owe its insureds. Because Elephant
owes no duty to protect its insureds’ physical safety, Elephant is entitled to summary judgment on
Kenyon’s negligence cause of action. (emphasis added) (citations omitted).
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an insurance company and its insured. In its appellee’s brief, Elephant does not dispute its
summary judgment ground was limited to challenging the existence of a duty to protect its
insureds’ physical safety. Elephant concedes Kenyon never alleged this duty, acknowledging that
in her summary judgment response, “Kenyon specifically disavowed that Elephant owed a duty to
protect its insureds’ physical safety.” 6
The parties do not dispute there is a difference between a duty of reasonable prudence that
exists due to a special relationship between an insurance company and its insured, which Kenyon
alleged, and a duty to affirmatively act for another’s protection or safety, which is owed in other
special relationships that Kenyon did not allege. As between an insurance company and its insured,
a special relationship and duty arise for reasons unique to the insurance context. See Arnold v.
Nat’l Cty. Mut. Fire Ins. Co., 725 S.W.2d 165, 167 (Tex. 1987). Kenyon did not allege a general
duty to act for the protection of others’ physical safety, which exists in special relationships that
arise because a defendant exercises a high degree of control over other people or property.
RESTATEMENT (SECOND) OF TORTS § 314–314B (1965). Such special relationships include
common carrier to passenger, innkeeper to guest, landowner to invitee, employer to employee, and
custodian to person in custody. Id. 7 Kenyon did not allege any of these special relationships, which
give rise to a duty to affirmatively act for another’s safety that can be breached by omission
(nonfeasance). Instead, Kenyon alleged the special relationship in the insurance context, which
6
In her reply brief, Kenyon “again disavow[ed] that she is making that claim regarding the duty [to protect] owed by
Elephant to its insureds. And she will continue to do so whenever asked.” She “agree[d] that Elephant owes no such
duty” to protect. She also provided further arguments in support of her common law negligence claim. Although reply
briefs may not raise new issues, courts may consider arguments asserted in the reply brief that expand upon the issues
presented in an appellant’s brief. McAlester Fuel Co. v. Smith Int’l, Inc., 257 S.W.3d 732, 737 (Tex. App.—Houston
[1st Dist.] 2007, pet. denied); see Benge v. Harris, No. 07-13-00064-CV, 2013 WL 4528885, at *1 (Tex. App.—
Amarillo Aug. 20, 2013, no pet.) (mem. op.).
7
See, e.g., Timberwalk Apts., Partners v. Cain, 972 S.W.2d 749, 756 (Tex. 1998) (noting one who controls premises
may owe a duty to protect); Rodriguez v. Spencer, 902 S.W.2d 37, 43 (Tex. App.—Houston [1st Dist.] 1995, no writ)
(recognizing “a parent’s duty to protect third parties from the acts of the parent’s minor children” that could
foreseeably result in harm).
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gave rise to a duty of reasonable prudence that was breached by Elephant’s affirmative act of
instructing her to take pictures (misfeasance).
The parties’ arguments and the summary judgment record establish Elephant’s “no duty”
ground challenges the existence of a duty that Kenyon never alleged. Elephant’s summary
judgment ground therefore fails to meet Kenyon’s common law negligence claim as pleaded. See
Cook, 533 S.W.2d at 759; Finlan, 27 S.W.3d at 231–32; Overnite Transp. Co., 2001 WL 300247,
at *2. Thus, Elephant’s ground challenging the existence of a duty to protect its insureds’ physical
safety does not support summary judgment.
b. Elephant’s motion admits the existence of the duty Kenyon alleged.
Citing Arnold v. National County Mutual Fire Insurance Co., Elephant’s traditional
summary judgment motion acknowledged “the insurer-insured relationship imposes a duty on the
insurer to investigate claims thoroughly and in good faith” (emphasis added). 725 S.W.2d at 167.
Under Arnold, “a duty is imposed” on an insurance company to exercise “that degree of care and
diligence which a man of ordinary care and prudence would exercise in the management of his
own business.” Id. Elephant argued, “Kenyon’s negligence claim fails because her allegation that
Elephant failed to exercise ordinary care when it ‘instructed’ her to take [pictures] has nothing to
do with the processing of claims or Elephant’s failure or delay in paying a claim.” This ground
expressly challenges Kenyon’s allegation as to how “Elephant failed to exercise reasonable care,”
which clearly is an issue of breach, not duty. As noted above, the scope of this permissive appeal
is limited to the issue of duty. Although delaying payment or failing to pay a claim can constitute
a breach of the duty Kenyon alleged, “[t]he question is . . . not whether the facts of the case at hand
show a breach.” Pagayon, 536 S.W.3d at 504. Elephant’s summary judgment motion and
appellee’s brief expressly acknowledge the existence of the specific duty Kenyon alleged in
support of her common law negligence claim. See Arnold, 725 S.W.2d at 167. By affirmatively
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acknowledging the existence of a duty that arises due to a special relationship, as Kenyon alleged,
Elephant’s summary judgment motion cannot support summary judgment on the ground that
Elephant “owed no duty.”
c. Elephant did not conclusively establish all material facts in support of its
traditional ground.
Even if Elephant’s traditional ground constituted an express challenge to the existence of
a duty in support of Kenyon’s common law negligence claim, Elephant’s specific summary
judgment ground was that its instruction to take pictures at the scene of the accident had “nothing
to do with the processing of claims or Elephant’s failure or delay in paying a claim.” On appeal,
Kenyon argues the call and instruction were related to the processing of claims. We agree.
The summary judgment evidence shows Kenyon called Elephant to report an accident
pursuant to the terms of her auto insurance policy. During this call, Elephant’s FNOL
representative Moritz instructed Kenyon, “Go ahead and take pictures.” Elephant’s policy required
Kenyon to “Provide us with all photographs . . . the person has” and to provide “accident or loss
information as soon as practicable.” Elephant requests accident scene pictures from insureds to
“document vehicle damage” and “determine liability.” As detailed in our analysis of the negligent
undertaking claim, the summary judgment evidence shows Elephant’s request or instruction that
Kenyon take accident scene pictures “has [some]thing to do with the processing [or paying] of
claims.” Even if Elephant’s “no breach” ground expressly challenged the existence of a duty, we
hold Elephant failed to satisfy its traditional summary judgment burden to conclusively establish
all material facts in support of the specific ground it expressly presented in its motion. See TEX. R.
CIV. P. 166a(c); Amedisys, 437 S.W.3d at 511.
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2. Elephant’s No-Evidence Ground
In footnote four of its en banc response, Elephant argued for the first time it challenged the
existence of a duty in its no-evidence motion. In its summary judgment motion, Elephant’s sole
no-evidence ground challenging Kenyon’s common law claim is as follows:
To prevail on a negligence cause of action, a plaintiff must establish: (1) the
defendant owed the plaintiff a duty according to a certain standard of care; (2) the
defendant breached the applicable standard of care; and (3) damages proximately
resulted from that breach. Elephant is entitled to summary judgment on Kenyon’s
negligence claim because Kenyon can produce no evidence that Elephant
breached any duty or standard of care imposed by Texas law.
(citation omitted) (emphasis added). We hold this ground does not challenge the duty element of
Kenyon’s common law negligence claim.
First, the ground does not state the “existence of a duty” is an “element[] as to which there
is no evidence,” and the element of duty is not “distinctly and explicitly challenged.” See TEX. R.
CIV. P. 166a(i); PATTON, supra, § 5.03[2][b]. We “cannot ‘read between the lines’ or infer from
the pleadings any grounds for granting the summary judgment other than those grounds expressly
set forth before the trial court.” Nall v. Plunkett, 404 S.W.3d 552, 556 (Tex. 2013) (per curiam).
In summary judgment cases, our sister courts have used the language “no breach of any duty” to
refer only to a challenge to the breach element. 8 And, the supreme court has always distinguished
between the elements of duty and breach. See Pagayon, 536 S.W.3d at 504.
Second, a summary judgment ground stating there is “no evidence of a breach of any
duty” can challenge the existence of a duty if the ground is clearly based on a defense that there
8
See, e.g., Peterson v. Midstate Envt’l Servs., L.P., No.10-16-00162-CV, 2019 WL 91587, at *2 (Tex. App.—Waco
Jan. 2, 2019, pet. denied) (mem. op.) (using the phrase “evidence to show that [defendants] breached any duty” as
challenging breach, but not duty); Preston Nat’l Bank v. Stuttgart Auto Ctr. Inc., No. 05-09-00020-CV, 2010 WL
3310727, at *3 (Tex. App.—Dallas Aug. 24, 2010, no pet.) (mem. op.) (using the phrase “breached any duty or was
the ‘proximate or producing’ cause” to refer to challenges to breach and causation, but not breach); Aleman v. Ben E.
Keith Co., 227 S.W.3d 304, 308 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (“Keith moved for summary judgment
on the grounds that Aleman had produced no evidence that Keith breached any duty, or that any such breach
proximately caused Aleman’s injury. Keith did not challenge the element of duty.”).
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is no duty. In Jack in the Box, Inc. v. Skiles, the supreme court held a no-evidence ground stating
“there [is] no evidence [defendant] breached any duty owed to [plaintiff]” constituted a challenge
to the existence of a duty, but the defendant had “asserted, among other defenses, that it owed no
duty to warn [the plaintiff] of obvious dangers and moved for summary judgment.” See 221
S.W.3d 566, 566–67 (Tex. 2007) (per curiam). Here, however, Elephant’s no-evidence ground
did not expressly argue there was no breach because there was, in fact, no duty. Instead,
Elephant’s summary judgment motion had previously acknowledged the existence of the special
relationship and duty Kenyon alleged.
Third, we cannot say the above-quoted ground gave fair notice of a no-evidence challenge
to the existence of a duty. See Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 311 (Tex. 2009). The
applicable standard is whether an opposing attorney of reasonable competence, on review of the
pleadings, can ascertain the nature and the basic issues of the controversy. Cf. Bowen v. Robinson,
227 S.W.3d 86, 91 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). Fair notice must be
determined from the pleading as a whole. See id. at 91–92. Before this no-evidence ground,
Elephant’s traditional ground admitted the existence of the “special relationship” duty Kenyon
alleged, and challenged whether the facts of the case—the instruction—breached this duty. This
traditional ground mirrors the only reasonable reading of Elephant’s no-evidence ground. Also,
Kenyon has never acknowledged Elephant asserted a no-evidence ground challenging the
existence of a duty; rather, Elephant has claimed “Kenyon waived her common law negligence
claim against Elephant” because her summary judgment response “contained no argument
regarding the common law duty she asserts in this appeal.” Likewise, until its en banc response,
Elephant has never referred to its no-evidence ground as challenging the existence of a duty. In its
summary judgment reply and appellee’s brief, Elephant cited only to the traditional ground,
explaining Elephant “moved for summary judgment on this claim,” arguing the special relationship
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“does not give rise to a duty to protect the insured’s physical safety.” We cannot say that a
reasonably competent attorney would have understood Elephant’s no-evidence ground as plausibly
challenging the existence of a duty. See id.
Fourth, the trial court did not grant summary judgment on the ground that Elephant did
not “breach[] any duty or standard of care imposed by Texas law.” The trial court granted
summary judgment on the ground that Elephant “owed no duty to Plaintiffs.” The ground the trial
court specified is the traditional ground in which Elephant expressly argued there is no duty, not
the no-evidence ground that Elephant did not “breach any duty.” As noted above, our scope of
review is limited to the specific ground on which the trial court rendered summary judgment. We
therefore hold Elephant’s no-evidence ground is not a basis on which the trial court’s summary
judgment on Kenyon’s common law negligence claim may be affirmed.
3. Alternatively, the summary judgment evidence raises a fact issue as to the
existence of a duty that arises due to the parties’ special relationship.
We address the substance of the duty element of this claim in an abundance of caution.
Even if Elephant’s summary judgment motion challenged the duty Kenyon alleged, we
alternatively hold Kenyon produced sufficient evidence raising a fact issue as to the existence of a
duty that arises due to the parties’ special relationship. This special relationship arises out of the
contractual relationship created by the insurance policy. Arnold, 725 S.W.2d at 167. “In Arnold,
[the supreme court] recognized the duty of an insurer to deal fairly and in good faith with its insured
in the processing . . . of claims and that breach of that duty is compensable in tort.” Murray v. San
Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex. 1990). As explained above, the evidence raises
a fact issue as to this specific ground because the evidence shows Elephant instructed Kenyon to
take pictures during and in furtherance of Elephant’s “processing . . . of [Kenyon’s] claims.” See
id.
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When Kenyon called to report her claim, the call implicated the parties’ special relationship
and therefore, while Kenyon was on the call reporting her claim, Elephant owed Kenyon a duty.
See id. This squarely answers the question of whether “Elephant owed no duty to [Kenyon],” as
the trial court specified the issue in its summary judgment order. Elephant attempts to reframe the
issue as whether this duty, which it emphasizes is a duty of good faith and fair dealing, “extends”
to or “implicates” the facts of this case (i.e. the instruction to take pictures). As noted above, the
question is whether a duty exists “not whether the facts of the case at hand show a breach.”
Pagayon, 536 S.W.3d at 504. Although the applicable standard of care is referred to as one of
“good faith and fair dealing,” the standard is ultimately one of reasonableness, or “ordinary care
and prudence.” Arnold, 725 S.W.2d at 167; see AIG Aviation, Inc. v. Holt Helicopters, Inc., 198
S.W.3d 276, 285 (Tex. App.—San Antonio 2006, pet. denied). 9 This court has recognized this
duty extends to “reasonably investigat[ing] a claim.” State Farm Mut. Auto. Ass’n v. Cook, 591
S.W.3d 677, 680 (Tex. App.—San Antonio 2019, no pet.). Because Elephant instructed Kenyon
to take pictures to process Kenyon’s insurance claim, the special relationship duty that applies in
claims processing “extends” to or “implicates” the instruction to take pictures; the issue of whether
the instruction breached the standard of care is beyond the limited scope of this appeal. See
Pagayon, 536 S.W.3d at 504.
Elephant argues the duty Kenyon alleged covers only “extra-contractual financial loss, not
damages for physical harm the insured may sustain.” We disagree. First, Elephant’s argument
relates to the damages available for such a cause of action; not to the existence of a duty. As with
9
Elephant’s summary judgment ground does not argue that Kenyon’s evidence or allegations fail to show its
instruction was made in bad faith. Kenyon alleged Elephant had no reasonable basis to request pictures and
intentionally misrepresented the need for pictures. Kenyon then incorporated these factual allegations in arguing her
legal theory of her common-law negligence claim. Kenyon also argued in the trial court that by instructing Kenyon to
take pictures, Elephant was simply seeking a reason to deny her claim. Because this issue goes into the element of
breach, we need not reach whether: (1) Kenyon must prove bad faith to establish a breach of the duty she alleged; or
(2) whether the pleadings or evidence raise the issue of the instruction being given in bad faith.
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Elephant’s arguments attempting to “work backwards” from the breach element, this argument
attempts to “work backwards” from the element of damages. As noted above, the scope of this
appeal is limited to duty. Second, Elephant did not expressly present this issue in its summary
judgment motion, and “a summary judgment cannot be affirmed on grounds not expressly set out
in the motion or response.” See Stiles, 867 S.W.2d at 26. Third, the purpose of tort law, and
negligence specifically, is to be “a vehicle of legal redress for victims of physical injury.” JOHNSON
& GUNN, supra, at 3; see Escoto, 288 S.W.3d at 404. We therefore see no reason why, if an
insurance company breaches the duty that arises due to a special relationship, and foreseeably
causes economic damages and personal injury, liability would be limited only to economic
damages and not include personal injury damages. 10
D. Conclusion as to Kenyon’s Common Law Negligence Claim
The trial court erred by concluding Elephant’s summary judgment ground conclusively
established the absence of the duty Kenyon alleged in support of her common law negligence
claim. We hold Elephant’s summary judgment grounds do not support summary judgment on the
issue of duty. Alternatively, Kenyon produced sufficient evidence raising a fact issue as to the
existence of the duty she alleged.
NEGLIGENT UNDERTAKING
Kenyon argues the trial court erred by rendering summary judgment on her negligent
undertaking claim. Kenyon alleged her negligent undertaking claim as follows:
15. NEGLIGENT UNDERTAKING. Alternatively, and additionally, if [Elephant]
did not owe a duty to the Plaintiffs as a result of their status as insureds, then a
separate duty was created when [Elephant] undertook to guide the Plaintiffs through
10
For example, if a person on the roadside is struck and killed by a car while performing an unreasonably dangerous
task required by the insurance company during its investigation, and the insured’s death allowed the insurance
company to delay payment of the claim, it would make little sense that the insured’s estate could recover economic
damages resulting from any wrongful delay of the insured’s claim caused by the insured’s death, but not recover
foreseeable damages resulting from the insured’s death itself.
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the post-accident events in response to the Plaintiffs simply calling in to make a
property damage claim. When the Plaintiffs called to make a claim the First Notice
of Loss (“FNOL”) employee (Moritz) undertook to guide the insureds through the
post-accident events, including beginning [Elephant’s] investigation of the claim.
[Elephant] undertook these actions knowing that the insureds were looking to
[Elephant] to protect their interests and themselves. The insureds relied on
[Elephant’s] performance of those services and/or [Elephant’s] performance of
those services increased the risk of harm to the insureds/Plaintiffs. [Elephant’s]
negligence proximately caused the Plaintiffs injuries as described herein.
Although Elephant argues Kenyon never articulated what service Elephant undertook, Kenyon
alleged the undertaking giving rise to a duty was that Moritz began “guid[ing] the insureds through
the post-accident events, including beginning [Elephant]’s investigation of the claim.”
A negligent undertaking duty arises when: (1) the defendant voluntarily undertakes to
perform services it knew or should have known were necessary for the plaintiff’s benefit or
protection; and (2) the plaintiff relies on the defendant’s performance, or the defendant’s
performance increases the risk of harm. Midwest Employers Cas. Co. ex rel. English v. Harpole,
293 S.W.3d 770, 777–78 (Tex. App.—San Antonio 2009, no pet.) (citing Torrington Co. v.
Stutzman, 46 S.W.3d 829, 837 (Tex. 2000)). 11 Elephant’s no-evidence and traditional grounds
challenged certain components of these requirements.
A. The Benefit or Protection Requirement
As to the benefit or protection requirement, Elephant’s traditional summary judgment
motion argued it “did not undertake an affirmative course of action for the Kenyons’ benefit or
protection.” In its no-evidence ground, Elephant argued, “Kenyon can produce no evidence that
Elephant undertook to perform any services that it knew or reasonably should have known were
11
A negligent undertaking claim also requires the plaintiff to show the defendant “failed to exercise reasonable care
in performing those services” and such breach proximately caused the plaintiff’s injuries.” See id. at 778; Doe v.
Messina, 349 S.W.3d 797, 800 (Tex. App.—Houston [14th Dist.] 2011, pet. denied). These elements are the breach
and proximate cause elements. As noted above, our review is narrowly limited to the issue of duty.
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necessary for the Kenyons’ protection.” Kenyon argues the evidence raises a fact issue as to the
benefit or protection requirement.
1. Judicial Admission
Elephant argues, “Kenyon admits in her brief that Elephant’s conduct was for its own
benefit” and “admits . . . Elephant gathered information ‘only to benefit itself.’” Kenyon responds
this characterization takes her statement out of context. A statement in an appellant’s brief is not a
binding judicial admission unless the statement is “sufficiently deliberate, clear, and unequivocal
for us to accept as true.” Fayette County v. Ryder Integrated Logistics, Inc., No. 04-16-00574-CV,
2017 WL 1244440, at *3 n.1 (Tex. App.—San Antonio Apr. 5, 2017, no pet.) (mem. op.). In her
appellant’s brief, Kenyon argued in four paragraphs the reasons for which Elephant’s undertaking
is actionable. Kenyon stated Elephant performed these services “only to benefit itself, and was
intentionally indifferent to [the Kenyons’] safety.” When viewed in context of all of Kenyon’s
briefing on this issue, however, we hold the above-quoted language is not sufficiently deliberate,
clear, and unequivocal to constitute a judicial admission as to whether Elephant’s services were
provided for Kenyon’s benefit or protection. See id.
2. The evidence raises a fact issue as to the benefit or protection requirement.
Kenyon produced evidence showing Elephant provided post-accident guidance and opened
its investigation of her insurance claim during the FNOL call. This summary judgment evidence
raises a genuine issue of material fact as to whether Elephant performed a service it knew or
reasonably should have known was for Kenyon’s benefit or protection.
a. Post-Accident Guidance, Including Opening an Insurance Investigation
Elephant argues merely answering the phone when Kenyon called and instructing her to
take pictures is not evidence showing it undertook to provide any service for Kenyon’s protection
or benefit. Elephant focuses on the instruction and phone call in isolation. However, the summary
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judgment evidence shows the phone call and instruction were not acts in isolation, but acts taken
in context of Elephant providing insurance services to Kenyon. As explained above, the purpose
of Elephant answering Kenyon’s phone call and its instruction to take pictures was to process her
claim under her auto insurance policy. We hold the summary judgment evidence, considered
together, raises a fact issue as to the benefit or protection requirement.
Insurance services generally are undertaken for another’s benefit or protection. See
Colonial Sav. Ass’n v. Taylor, 544 S.W.2d 116, 120 (Tex. 1976). The “manifest purpose” of
providing insurance coverage is for the benefit or protection of the insured. See In re Deepwater
Horizon, 470 S.W.3d 452, 467 (Tex. 2015). 12 Thus, in Colonial Savings, the supreme court held a
lienholder assumed a negligent undertaking duty by obtaining fire insurance coverage for a
homeowner. 544 S.W.2d at 120. Here, the benefit and protection the auto insurance policy
provided is manifested in the text of the policy itself. The policy included, “Personal Injury
Protection Coverage” (emphasis added), which is a promise to pay certain benefits and expenses
“for bodily injury sustained by the Insured in a motor vehicle accident” for both the insured and
the insured’s spouse. Elephant’s services also included coverage for “Damage to an Auto” (i.e.
collision coverage), which is a promise to pay for damage to a car covered under an insurance
policy. Thus, Kenyon’s auto insurance policy with Elephant shows the purpose of the policy—like
insurance generally—is to benefit and protect its insureds against losses from certain auto-related
property damage and personal injury.
Thus, an insurance company can assume a negligent undertaking duty by performing
certain insurance-related services for an insured. See Keightley v. Republic Ins. Co., 946 S.W.2d
12
See also Tellepsen Builders, L.P. v. Kendall/Heaton Assocs., 325 S.W.3d 692, 697 (Tex. App.—Houston [1st Dist.]
2010, pet. denied) (“Property coverage protects an insured from loss to property . . . .”) (quoting 4 PHILIP L. BRUNER
& PATRICK J. O’CONNOR, JR., BRUNER & O’CONNOR ON CONSTRUCTION LAW § 11:106, at 336–37 (2002)); BLACK’S
LAW DICTIONARY 823 (8th ed. 2006) (defining “insured” as someone covered or “protected by” an insurance policy).
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124, 126 (Tex. App.—Austin 1997, no writ); Seay v. Travelers Indem. Co., 730 S.W.2d 774, 775
(Tex. App.—Dallas 1987, no writ). In Keightley, an insurance company that provided services of
administering the plaintiff’s reinsurance policies assumed a negligent undertaking duty by
“voluntarily enter[ing] upon an affirmative course of action affecting another’s interest.” 946
S.W.2d at 129. In Seay, the court of appeals recognized, in a wrongful death case, an insurance
company that performed services of inspecting a water boiler assumed a negligent undertaking
duty to the insured’s maintenance employee, who died from injuries caused by the boiler
discharging scalding hot water. 730 S.W.2d at 775. 13
Conducting an insurance investigation is a service that can give rise to a negligent
undertaking claim. See Thomas v. Select Portfolio Servicing, Inc., 293 S.W.3d 316, 322 (Tex.
App.—Beaumont 2009, no pet.); W. Hills Bowling Ctr., Inc. v. Hartford Fire Ins. Co., 412 F.2d
563, 565–66 (5th Cir. 1969). The facts of Western Hills Bowling Center, Inc. v. Hartford Fire
Insurance Company are particularly instructive. See 412 F.2d at 564–65. The Western Hills
Bowling Center was partially destroyed by a fire, the owner reported the loss to its insurance
company, and the insurance company “specifically instructed” the owner to follow the adjuster’s
further instructions. Id. at 564–66. The adjuster, in turn, “persisted in its instructions that [the
owner] was not to begin clean-up or salvage operations until the investigation was complete.” Id.
at 565. Before the investigation was complete, a second fire entirely destroyed the bowling alley.
13
Other states have recognized that providing certain insurance services can support a negligent undertaking claim.
See, e.g., Cleveland v. Am. Motorists Ins. Co., 295 S.E.2d 190, 193 (Ga. Ct. App. 1982) (holding negligent undertaking
theory was available by insured against insurance company whose negligent inspection of a boiler resulted in personal
injury caused by boiler’s explosion); Hadler v. Great E. Life Ins. Co., 256 A.2d 650, 652 (N.H. 1969) (holding
insurance company owed negligent undertaking duty when it agreed to provide insurance coverage, but failed to issue
the policy). Other states have also recognized an insurance company may be held liable for wrongful death under a
negligent undertaking theory. See, e.g., Life Ins. Co. of Ga. v. Lopez, 443 So. 2d 947, 950 (Fla. 1983); Liberty Nat’l
Life Ins. v. Weldon, 100 So. 2d 696 (Ala. 1957).
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Id. The insured sued its insurance company for negligent undertaking, and the jury found in favor
of the insured, but the district court set aside the jury’s findings. Id. at 564–65.
The Fifth Circuit reversed, holding that once the insurance company and adjuster
“undertook an investigation, they were bound under the applicable Texas substantive law to
exercise reasonable care and diligence in its execution and [were] liable for any loss or injury
caused by their failure to do so.” Id. at 565. “Having exercised their right under the contract of
insurance to undertake an investigation, the insurers cannot interpose the absence of a prior duty
as a defense against a claimant injured as a result of their failure to exercise due care.” Id. at 565–
66. The Fifth Circuit rendered judgment for the insured. Id. at 567.
This principle is also demonstrated by Thomas v. Select Portfolio Servicing, Inc. In
Thomas, a homeowner sued an insurance company for property damages resulting from a negligent
insurance investigation. 293 S.W.3d at 318. Thomas alleged two types of property damage. Id. at
321. The primary claim was that the insurance agents had removed a blue tarp installed by FEMA,
and failed to replace the tarp, which later caused leaks damaging the property. Id. A secondary
claim was that insurance agents “walked on the roof and extensively used the hammer on the roof,
causing further damages to the roof.” Id. Thomas also alleged the insurance company’s adjusters
went “on Thomas’s roof to evaluate [an] insurance claim.” Id. The insurance company argued
Texas does not recognize a cause of action for negligent claims handling and “if a general duty in
the performance of services exists, Thomas could not pursue a claim because the service it was
performing was claims handling.” Id. at 322. The court held the economic loss rule 14 did not bar a
14
Elephant states Texas law does not recognize a cause of action for negligent handling of insurance claims. That
Texas does not recognize such a cause of action is merely a restatement of the economic loss rule: that a plaintiff
cannot recover for negligent handling of an insurance claim when losses are purely economic and limited to the subject
matter of the insurance policy. See Spring St. Apts Waco, LLC v. Phil. Indem. Ins. Co., W-16-CA-00315-JCM, 2017
WL 5248416, at *2 (W.D. Tex. Apr. 6, 2017). The economic loss rule does not negate the existence of a tort duty
separate from the contractual duties in the policy, was not raised in Elephant’s summary judgment motion, and does
not apply in this case because Kenyon’s alleged damages are based on bodily injury. See Thomas, 293 S.W.3d at 318.
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cause of action for negligent claims handling because the alleged damages included property
damage beyond the subject matter of the insurance policy. Id.
Elephant argues Thomas is a negligent activity case only, and not a negligent undertaking
case. We disagree. The court directly addressed a negligent undertaking duty (i.e. whether removal
of the tarp was a negligent “performance of services”), and held that, even though the negligent
undertaking claim was, in effect, a cause of action for negligent claims handling not recognized in
Texas law, the insurance company “read[] Thomas’s pleadings too narrowly.” Id. Thus, Thomas,
like Western Hills Bowling Center, involves a negligent insurance investigation claim, which is a
species of a negligent undertaking claim. See 2A AM. L. OF TORTS §§ 9:15, 9.18 (2019) (treating
negligent inspections and investigations as “part and parcel of the broader liability to another or to
a third person for negligent performance of an undertaking”). 15
The summary judgment evidence here raises a fact issue as to whether Elephant’s post-
accident guidance included opening its investigation of her claim. See W. Hills Bowling Ctr., 412
F.2d at 564–65. Under Elephant’s auto insurance policy, claims processing commences with the
insured reporting the accident or loss within 24 hours or as soon as practicable. The policy requires
insureds like Kenyon to “Cooperate With [Elephant] in the investigation . . . of any claim.” The
policy defines several terms, but not “investigation” or “investigate.” The policy also does not
limit “investigations” to only fraud investigations, but instead applies to “the investigation” of the
claim. The ordinary meaning of “investigate” is to “make inquiries” into “character, activities or
background.” OXFORD AM. DICTIONARY 914 (“investigate,” v.); see U.S. Metals, Inc. v. Liberty
15
See also Gulf Ins. Co. v. Cunningham, No. A14-91-00799-CV, 1993 WL 136039, at *3 (Tex. App.—Houston [14th
Dist.] Apr. 29, 1993, writ denied) (recognizing a cause of action when a surety “performed an investigation of the
appellees’ claim, and it did so negligently”).
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Mut. Grp., Inc., 490 S.W.3d 20, 23 (Tex. 2015) (stating we give words in insurance policy their
plain meaning).
During the phone call, in addition to accepting Kenyon’s report of the accident, Moritz
made numerous inquiries as to Kenyon’s recent activities and her background information;
encouraged her to call the police; and said, “Go ahead and take pictures.” The summary judgment
evidence shows Elephant trained its FNOL representatives to obtain police information and
pictures “on every FNOL call, every time,” and the express purpose for doing so was because the
adjuster “may need [that information] to determine liability.” Elephant has acknowledged the
purpose of FNOL calls is to “facilitate gathering . . . evidence . . . to adjust insureds’ claims.” The
evidence raises a fact issue as to whether Elephant began its investigation of Kenyon’s claim
during the FNOL call.
The facts of this case, while in a different context than Western Hills Bowling Center, are
sufficiently analogous on the issue of whether an insurance investigation gives rise to a negligent
undertaking duty. In both cases, an insured suffered an initial loss; the insured reported the loss to
the insurance company; the insurance company began its investigation and gave the insured
instructions; the insured followed the instructions; and the insured suffered a subsequent loss as
an alleged result of following instructions. See 412 F.2d at 564–65. 16 The evidence raises a fact
issue as to whether Elephant opened an insurance investigation, which—under Western Hills
Bowling Center and other “negligent insurance investigation” cases—is a service for Kenyon’s
16
In City of Denton v. Page, the supreme court declined to extend Western Hills to a premises liability claim alleging
the City’s fire marshal had a duty to remedy and warn about a dangerous real property condition because the fire
marshal did not control the premises. See 701 S.W.2d 831, 834–35 (Tex. 1986). Page’s distinction is inapplicable to
this case because Kenyon does not allege premises liability or a duty to warn or repair. However, the supreme court
in Page also noted the insurer in Western Hills Bowling Center “took control of the premises and prevented the insured,
the owner, from taking steps to protect his property,” which, under the facts of Western Hills, was effectuated by
conducting an insurance investigation and giving instructions to the insured. Id. at 835. The supreme court has
therefore recognized that an insurance company can, even remotely, exercise control over an insured and her
surroundings by giving the insured an instruction. See id. at 834–35.
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benefit or protection. See id. Consequently, “once [Elephant] undertook an investigation, [it was]
bound under the applicable Texas substantive law to exercise reasonable care and diligence.” See
id.
b. Other Post-Accident Guidance
The summary judgment evidence also raises a fact issue as to whether Elephant’s post-
accident guidance included providing roadside assistance services, which a factfinder could
reasonably infer was a service for the Kenyons’ benefit or protection. Both parties rely heavily on
the call transcript. During the phone call, Moritz told Kenyon, “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 . . . they can help you out with getting the vehicle towed.” A jury could reasonably infer
Elephant knew or should have recognized roadside assistance was for Kenyon’s benefit or
protection. See Torrington, 46 S.W.3d at 838; Colonial Sav. Ass’n, 544 S.W.2d at 120.
c. Elephant’s Arguments
Elephant argues (1) its requests for pictures and police information on every FNOL call
does not raise a fact issue “because a company’s internal policies and procedures will not create a
negligence duty where none otherwise exists”; (2) Elephant provided services involuntarily or for
its own benefit because it was acting under a “duty imposed on Elephant under Texas law”; and
(3) Elephant never undertook an action for the benefit or protection of the Kenyons’ physical
safety, and any duty it owed is limited to the anticipated benefit or protection of its services.
i. Policies & Procedures
The cases Elephant cites hold that policies and procedures alone—unaccompanied by any
affirmative course of action—will not give rise to liability for a failure to act in accordance with
those policies or procedures. See, e.g., Cleveland Reg’l Med. Ctr., L.P. v. Celtic Props., L.C., 323
S.W.3d 322, 351 (Tex. App.—Beaumont 2010, pet. denied). The evidence shows Moritz
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undertook an affirmative course of action in accordance with Elephant’s policy or procedure of
requesting police information and pictures on every FNOL call. Thus, Kenyon is not alleging a
negligent undertaking duty based merely on the existence of policies or procedures alone, but upon
an affirmative course of action consistent with Elephant’s policies or procedures.
ii. Involuntariness
Elephant argues the alleged instruction and requests for information during the phone call
were merely “to promptly investigate and settle Kenyon’s claim – a duty imposed on Elephant
under Texas law.” Elephant appears to argue its undertaking was not “voluntary” because the
undertaking was required by Texas law. Elephant did not move for summary judgment on this
basis. Elephant’s traditional ground noted voluntariness is a requirement of a negligent undertaking
duty, but limited its challenge to not having undertaken “any service for the Kenyons’ protection
or benefit.” Elephant’s no-evidence ground did not mention the voluntariness requirement and did
not state there is no evidence that the alleged undertaking was voluntary or not required by Texas
law. We therefore hold summary judgment cannot be affirmed on the basis of involuntariness. See
Stiles, 867 S.W.2d at 26. Elephant’s argument is also inconsistent with negligent insurance
investigation cases in Texas and in other states. See, e.g., W. Hills Bowling Ctr, 412 F.2d at 564–
65; Thomas, 293 S.W.3d at 318; see supra n.13.
iii. Damages Unrelated to the Expected Benefit or Protection
In the trial court and on appeal, Elephant has emphasized the Kenyons’ physical safety. As
with the common law duty, Elephant argues that because the services it performed were not to
benefit or protect the Kenyons’ physical safety, Elephant’s negligent undertaking duty does not
include “any duty to exercise ordinary care with regard to Theodore’s bodily injuries and death.”
Elephant seems to argue the benefit or protection for which a service is performed limits the
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recoverable damages, and because the phone call and instruction were not intended to protect
Kenyon from bodily injury, Kenyon cannot recover personal injury damages.
First, this argument relates to recoverable damages that are proximately caused by a breach.
As explained above, the scope of this appeal is limited to the issue of duty. Second, the legal
proposition on which Elephant relies is that “a person’s duty to exercise reasonable care in
performing a voluntarily assumed undertaking is limited to that undertaking, and will not normally
give rise to an obligation to perform additional acts of assistance in the future.” Fort Bend Cty.
Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 397 (Tex. 1991). This principle is merely “that the
defendant’s negligence [must occur] in performing the undertaking itself.” 1 TEX. PRAC. GUIDE
PERS. INJ. 2d § 4:12 (2019). This principle does not limit the recoverable damages; it limits a
negligent undertaking duty with regard to performing “acts . . . in the future.” See Sbrusch, 818
S.W.2d at 397. This principle is inapplicable in this case because Kenyon alleged a negligent
undertaking duty arose, not because of Elephant’s past conduct, but because Elephant was opening
its investigation of her claim and providing post-accident guidance. Third, we explained above
why such an analysis would be untenable:
[I]f a person on the roadside is struck and killed by a car while performing an
unreasonably dangerous task required by the insurance company during its
investigation, and the insured’s death allowed the insurance company to delay
payment of the claim, it would make little sense that the insured’s estate could
recover economic damages resulting from any wrongful delay of the insured’s
claim caused by the insured’s death, but not recover foreseeable damages resulting
from the insured’s death itself.
Supra n.10.
Additionally, Elephant’s position is irreconcilable with the supreme court’s decisions in
negligent undertaking cases. In American K-9 Detection Services LLC v. Freeman, the supreme
court stated that undertaking to build and repair a dog kennel “would support a negligent-
undertaking claim” in which the injury was a dog bite. 556 S.W.3d 246, 258 (Tex. 2018). In
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Torrington, the negligent undertaking claim was based on a manufacturer’s negligent inspection
of a helicopter, but the damages arose from the deaths of two Marines. 46 S.W.3d at 836–37.
Elephant’s position overlooks that a negligent undertaking duty can arise when the defendant’s
performance increases the risk of harm. See id.; Thomas, 293 S.W.3d at 322. Elephant’s position
is also irreconcilable with the Restatement sections under which Texas courts have considered
negligent undertaking claims. See, e.g., RESTATEMENT § 323 (providing an illustration where
employer would owe negligent undertaking duty for giving sick employee a ride home, if the
employee got sicker as a result of a breach of duty); id. § 324A (providing similar examples where
injury exceeded scope of the intended benefit or protection).
d. Conclusion as to the “Benefit or Protection” Requirement
The summary judgment evidence shows Elephant performed insurance services—
“guid[ing] the insureds through the post-accident events, including beginning [Elephant’s]
investigation of the claim”—for Kenyon’s benefit or protection. See Torrington, 46 S.W.3d at 838;
Thomas, 293 S.W.3d at 318; RESTATEMENT § 323; see, e.g., Colonial Sav. Ass’n, 544 S.W.2d at
120. The summary judgment evidence therefore raises a fact issue as to the “benefit or protection”
requirement.
B. Plaintiff’s Reliance or Defendant’s Performance
A negligent undertaking duty also requires either the plaintiff’s reliance on the defendant’s
undertaking or that the defendant’s performance increased the risk of harm. See Torrington, 46
S.W.3d at 838; RESTATEMENT § 323; see also Guillory v. Seaton, LLC, 470 S.W.3d 237, 241 (Tex.
App.—Houston [1st Dist.] 2015, pet. denied). Elephant argues Kenyon admitted she did not rely
on Moritz to protect her or Theodore’s physical safety at the accident scene. Elephant refers to
Kenyon’s deposition testimony in which she testified she did not rely on Moritz to protect her
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physical safety, and she and Theodore were in a better position than Moritz to determine whether
they could safely take pictures.
Even if we take this as true, specifically that Kenyon did not rely on Elephant to protect
her physical safety, a negligent undertaking duty may arise when undertaking to perform services
for the benefit or protection of a person’s “things” or “property.” See Torrington, 46 S.W.3d at
838; Colonial Sav. Ass’n, 544 S.W.2d at 120. Kenyon specifically alleged Elephant “undertook
these actions knowing that the insureds were looking to [Elephant] to protect their interests and
themselves” (emphasis added). As explained above, the evidence raises a genuine issue of material
fact as to whether Elephant undertook to perform insurance-related services for the benefit or
protection of Kenyon—or her “property” or “things.”
Evidence showing an insured followed an insurance company’s instructions during the
course of an investigation of an insurance claim is sufficient evidence of reliance. See W. Hills
Bowling Ctr., 412 F.2d at 564–65. The call transcript shows the car accident was Kenyon’s first,
and Kenyon relied on Moritz’s post-accident guidance as Moritz began processing and
investigating Kenyon’s claim. The transcript also shows Kenyon relied on Moritz’s directions by
complying with all of Moritz’s requests for information during the call. Kenyon testified in her
deposition she followed Moritz’s instruction, “Go ahead and take pictures,” and asked Theodore
to take pictures. The evidence also raises a fact issue as to whether Elephant’s investigative
request—instructing Kenyon to take pictures—and the manner in which it provided roadside
assistance increased the risk of harm.
In this issue, Elephant argues Moritz never “instructed” Kenyon to take pictures. Elephant
has characterized the alleged instruction as an acceptance of Kenyon’s “offer” to take pictures.
The call transcript shows that after Kenyon described the incident Kenyon asked, “Do you want
us to take pictures?” Moritz responded, “Yes, ma’am. Go ahead and take pictures.” After Kenyon
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told Moritz that she had called her husband and “you’re my second call,” Moritz responded, “Okay.
And pictures. And you said you’re going to take pictures.” Elephant argues, “No reasonable
interpretation of [the] exchange regarding photos – which Kenyon initiated – supports construing
Moritz’s answer as a command, direction, or instruction requiring Kenyon to take photos or that
those photos must be taken at the accident scene.”
Even if Kenyon were required—for purposes of duty—to produce summary judgment
evidence showing Elephant actually instructed her to take pictures at the scene of the accident, we
hold Kenyon met this burden. The call transcript shows Moritz said, “Go ahead and take pictures.”
Grammatically, this statement is not a declaration, question, or exclamation; it is an imperative
(i.e. a command, direction, or instruction). See MERRIAM-WEBSTER’S DICTIONARY (2019),
https://www.merriam-webster.com/dictionary/imperative (defining “imperative” as the “the
grammatical mood that expresses the will to influence the behavior of another or a verb form or
verbal phrase expressing it” or a “command” or “order”). Moreover, the call transcript is contained
in a cold record; an audio recording is not part of the summary judgment record. We are therefore
unable to discern tone or emphasis that might further support Kenyon’s allegations that the
statement, “Go ahead and take pictures,” was a command or instruction to be followed at the scene
of the accident.
And, throughout the phone call, Moritz encouraged Kenyon to take other actions—such as
calling the police—specifically at the scene of the accident. Kenyon produced evidence showing
Moritz was trained to encourage insureds to take pictures of the accident scene while “at the scene
of the accident.” A jury could reasonably believe from this evidence that Elephant intended to have
Kenyon take pictures while she was at the scene of the accident and that Kenyon understood the
statement as an instruction to do so. We hold Kenyon produced evidence raising a genuine issue
of material fact as to whether she relied on Elephant’s post-accident guidance, including
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instructions given during its investigation of her claim, and whether Elephant’s performance
increased the risk of harm. See Torrington, 46 S.W.3d at 838; Guillory, 470 S.W.3d at 241; see,
e.g., W. Hills Bowling Ctr., 412 F.2d at 564–65.
C. Conclusion as to Kenyon’s Negligent Undertaking Claim
As to a negligent undertaking duty, we hold the summary judgment evidence favorable to
Kenyon, taken as true and viewed in a light most favorable to her, raises a genuine issue of material
fact as to the specific grounds presented in Elephant’s summary judgment. The trial court therefore
erred by rendering summary judgment on Kenyon’s negligent undertaking claim based on
Elephant owing no duty to the Kenyons.
NEGLIGENT TRAINING
Kenyon argues the trial court erred by rendering summary judgment on her negligent
training claim. For her negligent training claim, Kenyon argues Elephant owed a duty to train
because “[t]he employer-employee relationship . . . may create a duty to a third party, such as Mrs.
Kenyon, only if the third party’s harm is brought about by reason of the employment and is, in
some manner, job-related.” Because Kenyon argues the trial court erred by rendering summary
judgment on her negligent training claim, and specifically argues a duty to train exists, we review
the trial court’s summary judgment on this issue de novo. We therefore begin with how Kenyon
pled the claim:
16. Additionally, or in the alternative, [Elephant’s] negligence was the result of
[Elephant’s] negligent failure to adequately train . . . its FNOL employees. Once
[Elephant] undertook to have its FNOL employee guide its insureds through post-
accident events when the insureds called in a claim, [Elephant] had a duty to its
insureds (including the Plaintiffs) to train its employees handling first party auto-
accident claims to instruct its insureds at the scene of an auto accident in a safe and
competent manner. [Elephant] had a duty to ensure that its First Notice of Loss
(FNOL) employees (i.e. Moritz) were trained . . . if the FNOL employee was tasked
to investigate claims on behalf of [Elephant] when the insureds first called in the
claim. [Elephant] breached these duties. Given that the insureds (Plaintiffs) would
be making these calls from the scene of the accident, it was foreseeable by
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[Elephant] that its failure to train . . . would result in injury to insureds. [Elephant’s]
failure to properly train . . . its employees (First Notice of Loss agents) was a
proximate cause of the injuries and damages sued for by the Plaintiffs. 17
Here, Kenyon alleged: (1) Elephant owed a “duty to its insureds (including the Plaintiffs) to train
its employees handling first party auto-accident claims to instruct its insureds at the scene of an
auto accident in a safe and competent manner,” and (2) the legal basis for the duty is an employer–
employee relationship through which Elephant decided to have one of its employees “guide its
insureds through post-accident events when the insureds called in a claim.”
Elephant makes several arguments on appeal regarding this claim, but our review is limited
to the specific duty grounds expressly presented in the summary judgment motion. See Stiles, 867
S.W.2d at 26; Hardaway, 544 S.W.3d at 412. Elephant’s sole ground challenging the duty element
of Kenyon’s negligent training claim was the following traditional ground:
The absence of any undertaking negates the duty to train.
Kenyon bases her negligent training claim on her allegation that Elephant engaged
in an actionable undertaking for the protection or benefit of Kenyon and her
husband. As demonstrated above, Elephant did not undertake any affirmative
course of action for the Kenyons’ protection or benefit. Therefore, it could not have
owed them any duty to train its employees with regard to this nonexistent
undertaking. 18
17
This paragraph contained some allegations about licensing. However, Moritz’s lack of an adjuster’s license was the
basis of Kenyon’s negligent failure to license and negligence per se claims alleged in paragraph 18 and 19. As noted
above, we do not address these claims.
18
Elephant’s other grounds did not expressly challenge the duty element of Kenyon’s negligent training claim. In a
traditional ground, Elephant also argued:
Moritz did not commit an actionable tort.
Again, the only tort Kenyon alleges as a basis for her negligent training claim is negligent
undertaking. Neither Moritz, nor any other Elephant employee, undertook to perform services for
the protection or benefit of the Kenyons. Therefore, no employee committed an actionable tort,
without which Elephant cannot be held liable for negligent training.
(emphasis added). This ground does not assert Moritz owed no duty, and the trial court ruled Elephant owed no duty.
The requirement that an employee commit an actionable tort is separate from the requirement that the employer owe
the plaintiff a duty. See Doege v. Sid Peterson Mem’l Hosp., No. 04-04-00570-CV, 2005 WL 1521193, at *7 (Tex.
App.—San Antonio June 29, 2005, pet. denied) (mem. op.). In a no-evidence ground, Elephant argued:
Elephant is entitled to summary judgment because Kenyon can produce no evidence that
Elephant’s employees needed additional training, nor can she produce evidence of what specific
training the employees required. In addition, Kenyon cannot produce any evidence that Elephant’s
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Although Elephant notes the Supreme Court of Texas has not yet defined the existence or scope
of such a claim, Elephant’s summary judgment motion does not expressly challenge the existence
of such a cause of action under Texas law. Elephant’s sole ground for summary judgment on the
duty element of Kenyon’s negligent training claim was that, because Kenyon’s negligent
undertaking claim fails, her negligent training claim must also fail.
We hold this specific ground does not establish Elephant’s entitlement to summary
judgment on Kenyon’s negligent training claim. First, as previously explained, Elephant is not
entitled to summary judgment on Kenyon’s negligent undertaking claim. Furthermore, a negligent
training claim need not be based on a negligent undertaking theory as a matter of law, and the facts
giving rise to these duties are different. See, e.g., Douglas v. Hardy, No. 12-18-00035-CV, 2019
WL 2119670, at *4 (Tex. App.—Tyler May 15, 2019, no pet.) (analyzing negligent training
without reference to negligent undertaking, and stating a duty to train may arise when “employees
are engaged in occupations that require skill and experience, and that could be hazardous to the
safety of others.”).
Second, we alternatively hold the summary judgment ground does not “meet [Kenyon’s]
cause[] of action as pleaded.” See Finlan, 27 S.W.3d at 231–32. Kenyon expressly alleged her
negligent training claim “[a]dditionally, or in the alternative” to her negligent undertaking claim.
The scope of the duty alleged in Kenyon’s negligent training claim applies more broadly than the
duty she alleged in her negligent undertaking claim. Kenyon alleged a duty to train arose not during
the phone call with Kenyon, but when Elephant determined to have its FNOL representatives open
investigations during calls with its insureds. Thus, the negligent training duty Kenyon alleged
failure to train proximately caused Theodore’s death, nor can she produce evidence that any
Elephant employee committed an actionable tort recognized under the common law.
(emphasis added). Because these issues do not relate to whether Elephant owed a duty, they are beyond the limited
scope of this appeal.
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would have existed before the phone call in this case, and did not arise during the phone call, as
Kenyon alleged in her negligent undertaking claim. Although Kenyon used the word “undertook”
in her negligent training allegations, which raises a question as to whether Kenyon might have
intended to base her negligent training claim on her negligent undertaking claim, we must liberally
construe Kenyon’s pleadings in her favor because Elephant did not specially except to Kenyon’s
pleadings. See Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982). Because Kenyon expressly pled
a distinct duty to train “[a]dditionally, or in the alternative” to a negligent undertaking duty, we
hold the trial court erred by rendering summary judgment on the negligent training claim based on
this specific ground.
GROSS NEGLIGENCE
Kenyon argues the trial court erred by rendering summary judgment on her gross
negligence claim. Kenyon’s gross negligence claim was expressly pled to recover exemplary
damages “[f]or all of the claims of negligence outlined above.” Consequently, the only plausible
basis for summary judgment on Kenyon’s gross negligence claim is that the trial court concluded
there was no “predicate [negligence] liability for gross negligence” because Elephant owed no
duty. See Allen v. Scott, No. 07-06-0075-CV, 2008 WL 216075, at *2 (Tex. App.—Amarillo Jan.
25, 2008, pet. denied) (per curiam) (mem. op.). Because Elephant did not establish its entitlement
to summary judgment as to all predicate negligence liability for gross negligence, including all
three negligence claims discussed above, the summary judgment on Kenyon’s gross negligence
claim necessarily must be reversed as well. The parties dispute the other elements of gross
negligence. But, as explained above, the scope of this appeal is limited to duty.
RESPONSE TO THE DISSENTS
Having agreed there are no published or reported cases with facts similar to this case, the
parties agree the question of duty in this case presents an issue of first impression. Although our
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analysis above shows a duty is recognized, we will address whether a duty should be recognized
under the facts of this case in response to the dissents. Because questions of duty necessarily
implicate public policy concerns, our analysis helps to explain the public policy considerations
supporting why the law currently recognizes a duty. See Pagayon, 536 S.W.3d at 503–04.
In our analysis, we need not decide whether an auto insurance company owes a universal
duty to every insured who calls in for any reason. That is not the question before us. “Texas law
requires the court to be more specific, to balance the relevant factors in determining the existence,
scope, and elements of legal duties.” See id. at 506. We will simply decide, based on the narrow
facts presented in this case, whether a duty should be recognized. The narrow facts to which we
refer are as follows:
An insured calls her auto insurance company to report an accident and loss. The
insurance company, through its representative who answers the call, learns the
insured is at the scene of a recent one-car accident caused by inclement weather.
The insurance company knows its insureds often call from the scene of a recent car
accident, knows dangers are present for such insureds, trains its representatives for
such calls, and provides a script with questions or prompts for representatives to
use while interacting with such callers. The insurance company also has adjusters
who independently take pictures of car damage and who investigate claims. In the
course of accepting the insured’s accident or loss report, the representative is able
to determine the insured’s coverage and learns the driver is calling from the scene
of a recent one-car accident. The representative begins making investigative
requests of the insured to assist the insurance company in further processing the
insured’s claim, and the insurance policy requires the insured to fully cooperate in
the investigation, or risk losing coverage.
We therefore address whether, under these narrow facts, an auto insurance company has a duty of
reasonable prudence in the very limited context of deciding whether, and if so how, to instruct an
insured to take pictures at the scene of a recent one-car accident.
A. Duty Considerations
“[T]he existence of duty is a question of law for the court to decide from the facts
surrounding the occurrence in question.” Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d 523,
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525 (Tex. 1990). Usually, such facts are undisputed and the duty issue is decided as a matter of
law. Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170, 182 (Tex. 2004). But “in some
instances these issues may turn on facts that cannot be determined as a matter of law and must
instead be resolved by the factfinder.” Id. For such factual matters, we will assume Elephant
satisfied its initial summary judgment burden, and consider whether Kenyon’s evidence raises a
genuine issue of material fact.
We first identify the risk of harm and assess whether that risk is foreseeable. Phillips, 801
S.W.2d at 525. If the risk is not foreseeable, “there is no duty.” NationsBank, N.A. v. Dilling, 922
S.W.2d 950, 954 (Tex. 1996) (per curiam). If the risk is foreseeable, however, we then determine
whether the risk is unreasonable by weighing the severity and likelihood of foreseeable injuries
against the burden on the defendant. See Pagayon, 536 S.W.3d at 504. We also consider other
social, economic, and political consequences, and other considerations that weigh for or against
recognizing a particular duty. See id. For example, if neither party has superior knowledge or
recognition of the risk, there may be no particularized duty to warn, control, or protect. See Graff
v. Beard, 858 S.W.2d 918, 920 (Tex. 1993). In some cases, a contractual right to direct and control
another’s activities may establish a duty as a matter of law. See Dow Chem. Co. v. Bright, 89
S.W.3d 602, 606 (Tex. 2002).
1. The General Risk of Harm is Reasonably Foreseeable
Foreseeability of the risk of harm is the primary and dominant consideration, but we cannot
assess foreseeability of a risk of harm without first identifying that risk. See Tex. Home Mgmt.,
Inc. v. Peavy, 89 S.W.3d 30, 36–38 (Tex. 2002). The risk of harm is “the general danger, not the
exact sequence of events that produced the harm.” Mellon Mortg. Co. v. Holder, 5 S.W.3d 654,
655 (Tex. 1999) (quotation marks omitted). Kenyon’s claims are based on Theodore getting hit by
a car while taking pictures of Kenyon’s recent car accident. The general danger presented in the
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narrow facts of this case is the risk of a car hitting a pedestrian who is on the roadside taking
pictures of the scene of a recent car accident. See id.
a. Foreseeability of Theodore’s Injury
Elephant argues that, even if it was foreseeable that Kenyon might get hit by another car
while on the side of the road after being in an accident, it was not foreseeable that Theodore might
get hit by another car. This argument is unavailing. First, if the general risk of harm—a car hitting
a pedestrian who is on the roadside taking pictures of the scene of a recent car accident—is
foreseeable, then the risk is present for any person who is or arrives on the scene, not just those
involved in the accident. Second, the evidence raises a fact issue as to whether Elephant knew or
reasonably should have foreseen that Theodore was present. The call transcript shows Kenyon
repeatedly used the words “we” and “us” while on the phone with Moritz. The call transcript
clearly indicates that at least twice Kenyon was “(Speaking to someone else).” 19 The call transcript
also notes Kenyon told Moritz she had called her husband, and she was grateful he was only a few
miles away at home. This evidence raises a fact issue as to whether Elephant knew or reasonably
should have foreseen somebody else, such as Theodore, was present. Third, it suffices that the
general risk of harm, rather than the exact series of events producing the harm, is foreseeable. See
Mellon Mortg., 5 S.W.3d at 655. That Theodore arrived at the scene, Kenyon asked Theodore to
take pictures, and Theodore is the pedestrian who was hit by another car while taking pictures on
the roadside is “the exact sequence of events that produced the harm,” not “the general danger.”
See id. The foreseeability of the exact sequence of events resulting in the injury to Theodore is
therefore immaterial to our foreseeability analysis.
19
The call transcript indicates only once that Kenyon stated she was talking to a firefighter, but the call transcript does
not conclusively establish the firefighter was the only other person to whom Kenyon was talking.
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b. The General Risk of Harm is Foreseeable as a Matter of Law
Theodore was struck by a car while he was on the roadside taking pictures of the scene of
Kenyon’s recent car accident. Kenyon alleged the car’s driver was negligent. Elephant argues that,
for the negligent conduct of the other driver to be foreseeable, Elephant must have had knowledge
of prior similar incidents. We disagree. First, a defendant’s awareness of prior similar incidents
may be necessary when the harm is caused by third-party conduct, but such proof is not required
when the third party’s conduct is otherwise foreseeable as a matter of law based on using “common
experience and practical sense.” Clark v. Waggoner, 452 S.W.2d 437, 440 (Tex. 1970); accord
Nabors Well Servs., Ltd. v. Romero, 456 S.W.3d 553, 565 (Tex. 2015) (relying on common sense
rather than evidence of prior similar incidents in concluding traffic hazards are obviously
foreseeable). 20 Here, the relevant third-party conduct is another motorist’s negligence. “[W]hen it
comes to foreseeing the general hazard of automobile travel, [t]here is nothing to anticipate; the
negligence of other motorists is omnipresent.” Romero, 456 S.W.3d at 566 (quotation marks
omitted). Thus, using common sense, the supreme court has held other motorists’ negligence is
foreseeable as a matter of law. See id.
Second, in considering foreseeability of car accidents, the supreme court has relied on a
National Highway Traffic Safety Administration (NHTSA) report to show the ubiquitous dangers
of negligent drivers. See id. at 565–66. According to the NHTSA, the danger of drivers hitting
distracted pedestrians on the roadside is also ubiquitous:
The number of pedestrians dying on America’s roads appears to be on the rise.
While final reporting and analysis of 2018 traffic deaths are still underway, early
estimates by NHTSA point to pedestrian deaths increasing 4% over the previous
year. On average, a pedestrian died every 88 minutes in 2017 — accounting for
16% of all traffic fatalities.
20
“The ‘foreseeability’ analysis is the same for both duty and proximate cause.” Del Lago Partners, Inc. v. Smith, 307
S.W.3d 762, 774 (Tex. 2010); see RESTATEMENT § 290 (stating that to determine duty, an actor should recognize his
conduct involves a risk based on “common knowledge”).
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NAT’L HIGHWAY TRAFFIC SAFETY ADMIN., U.S. DEP’T OF TRANSP., How Pedestrians Can Walk
Safely, https://www.nhtsa.gov/pedestrian-safety/how-pedestrians-can-walk-safely (last visited
Feb. 10, 2020). Pedestrian “[d]eaths increased 35% when comparing 2008 and 2017 fatalities.”
Id. 21 “Distractions can be a factor in pedestrian crashes,” such as when pedestrians are “using a
cell phone.” See id.
Third, the Texas Legislature’s adoption of and amendments to Texas’s Move Over Act—
legislation that has been enacted nationwide—also establish the general risk of cars hitting
pedestrians on the roadside is foreseeable as a matter of law. In 2003, the Texas Legislature enacted
the Move Over Act to “prevent injuries and fatalities during roadside emergencies . . . by
mandating that drivers move over or slow to a safe speed.” Senate Transp. Comm., Bill Analysis,
Tex. S.B. 193, 78th Leg., R.S. (2003), https://capitol.texas.gov/tlodocs/78R/analysis/html/
SB00193H.htm.
[P]ublic servants and their vehicles are at risk each time they . . . must assist at an
accident scene or other emergency. Motorists kill or injure several of these public
servants each year . . . , despite their efforts to perform their duties safely out of the
flow of moving traffic . . . .
House Transp. Comm., Bill Analysis Tex. S.B. 193 78th Leg, R.S. (2003),
https://hro.house.texas.gov/pdf/ba78r/sb0193.pdf#navpanes=0. In 2011, the Legislature expanded
the Move Over Act to require drivers to move over or slow down when tow truck operators are
present on the roadside.
Tow truck operators are often the first ones at an accident scene and are often
the only responders at an incident scene such as a break-down or flat-tire. Towing
professionals know too well the dangers of being on the side of the road as traffic
drives by. Tragically, an average of one tow operator is killed each week in the
United States while providing service to a motorist.
21
The supreme court often relies on data and reports on government agency websites. See, e.g., Worsdale v. City of
Killeen, 578 S.W.3d 57, 73 & nn.102–04 (Tex. 2019); In re Thetford, 574 S.W.3d 362, 364–65 & nn. 3–5 (Tex. 2019).
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Senate Transp. Comm., Bill Analysis Tex. H.B. 378, 78th Leg. R.S. (2011), https://capitol.
texas.gov/tlodocs/82R/analysis/html/HB00378E.htm. The Legislature expanded the Move Over
Act again in 2013 to include highway workers. Senate Transp. Comm., Bill Analysis Tex. S.B.
510, 83rd R.S. (2013), https://capitol.texas.gov/tlodocs/83R/analysis/html/SB00510I.htm. The
amendment was supported because “[h]ighway workers are losing their lives as a result of being
struck on the job by traveling motorists. Since 1938, 101 Texas Department of Transportation
(TxDOT) employee fatalities were a result of being struck by motorists while the employees were
working within a work zone or near the shoulder of the roadway.” Id. Many, if not all, other states
in the United States have adopted laws that similarly protect certain pedestrians who are on the
roadside at accident scenes from the risk of harm posed by other drivers. See, e.g., ALA. CODE
§ 32-5A-58.2; ALASKA STAT. § 28.35.185; ARIZ. REV. STAT. § 28-775 E-1-2; ARK. CODE § 27-51-
310; CAL. VEH. CODE § 21809; COLO. REV. STAT. § 42-4-705. Based on these considerations, we
hold the general risk of a car hitting a pedestrian who is on the roadside taking pictures of a recent
car accident is foreseeable as a matter of law.
c. The General Risk of Harm is Foreseeable as a Matter of Evidence
Assuming foreseeability must be determined as a matter of evidence, Elephant argues
Kenyon failed to produce evidence showing Elephant was aware of a prior incident in which it or
another auto insurance company instructed an insured to take pictures at the scene of an accident
and the insured’s husband was hit by car. Elephant’s emphasis on how the general risk of harm
manifested in this particular case is misplaced because our focus is “not the exact sequence of
events that produced the harm,” but “the general danger” itself. See Mellon Mortg., 5 S.W.3d at
655. Moreover, even if foreseeability of the general risk of harm cannot be established as a matter
of law, Kenyon responded with evidence sufficient to raise a fact issue as to foreseeability of the
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risk. See Phan Son Van v. Pena, 990 S.W.2d 751, 754 (Tex. 1999); Spears v. Coffee, 153 S.W.3d
103, 106 (Tex. App.—San Antonio 2004, no pet.)
First, Moritz testified in her deposition that “when an insured calls . . . to report a single-
vehicle loss like Ms. Kenyon . . . there may be dangerous situations or circumstances for that
person at the scene of the accident.” The call transcript establishes Moritz was aware Kenyon had
been driving in rainy conditions, her car slid and spun, and she had hit a guardrail. Moritz was also
aware there were other drivers, such as the firefighter who stopped to ask whether Kenyon needed
assistance. This evidence alone shows Moritz knew or reasonably should have known other drivers
posed a risk, especially because of the wet road. Second, the call transcript also shows Moritz was
aware of a recent, nearby, and nearly identical accident similar to the one resulting in Theodore’s
death: Kenyon’s own accident. Thus, the record does not support Elephant’s assertion that there is
no evidence of any prior similar incident. Third, deposition testimony from a police officer,
Michael Peña, shows that in his experience with “hundreds and hundreds of crashes,” at car
accident sites, “people walking around taking pictures . . . creates a bigger hazard” because of
other drivers on the roads.
Elephant argues this evidence does not show that an auto insurance company should have
foreseen the general risk of harm. We disagree with Elephant’s suggestion that auto insurance
companies cannot reasonably foresee the risks posed by others driving on a wet road near the scene
of a recent car accident. Elephant’s policy provides coverage for when an insured or her spouse
gets “struck by . . . a motor vehicle.” The general risk of harm is contemplated by Elephant’s auto
insurance policy. If foreseeability of the risk cannot be decided as a matter of law, the evidence
raises a fact issue as to whether Elephant could have reasonably foreseen Kenyon, and whoever
else was with her, was exposed to the risks of other motorists driving in rainy conditions. This
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“foremost and dominant consideration” weighs in favor of recognizing a duty of reasonable
prudence under the narrow facts of this case. See Phillips, 801 S.W.2d at 525.
2. The Risk Is Unreasonable
For a duty to exist, the foreseeable risk must also be unreasonable. See id. at 526.
“Unreasonableness turns on the risk and likelihood of injury to the plaintiff . . . as well as the
magnitude and consequences of placing a duty on the defendant.” UDR Tex. Props., L.P. v. Petrie,
517 S.W.3d 98, 102 (Tex. 2017) (internal quotation marks omitted). Under this test, a court
“considers, indeed balances, the burden on the defendant of preventing the harm against the
severity and likelihood of the injury the plaintiff faces.” Id. at 107 (Willett, J., concurring). 22
a. Burden on the Defendant & Social Utility
A duty of reasonable prudence under the narrow facts of this case places a burden on an
auto insurance company to either: (1) not instruct insureds on the roadside at the scene of a recent
one-car accident to take pictures; or (2) in giving such an instruction, clarify pictures need not be
taken on the roadside at the accident scene or instructing the insured to first move to a safe location.
Kenyon argues this burden is low, and we agree.
Elephant argues that even if it had instructed Kenyon to move to a safe location before
taking pictures, nothing would have changed because Kenyon admitted she was in a better position
to assess the risk and she believed she and Theodore were in a safe location. In other words,
Elephant argues the alleged breached was not a “but for” cause of Kenyon’s injury. However, as
explained above, the scope of this appeal is limited to the issue of duty.
Elephant contends the imposition of a duty to protect its insureds’ physical safety would
be “far from negligible” and “tantamount to imposing strict liability on insurers” because the
22
Justice Willett likened this test to Learned Hand’s “B < PL” formula that remains part of the Restatement of Torts.
See id. at 106–07.
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insurance company would have to “verify information” provided by insureds at remote locations.
Elephant further contends obtaining pictures at the scene of an accident:
is critical to fulfilling its well-settled duty to investigate claims promptly,
thoroughly, and in good faith. The new duty Kenyon advocates is antithetical to
that existing good faith duty, because it exposes insurers to liability for an insured’s
bodily injury and death any time an insured notifies the insurer from the scene of
an accident and the insurer asks for any information relevant to the insured’s claim.
Not only would this new duty frustrate insurers’ ability to comply with their good
faith obligations, but its imposition would also jeopardize insureds’ well-
established rights to prompt, thorough, and fair resolution of their claims.
We disagree for several reasons.
First, in stating a duty would require verifying information or impose liability any time an
insured calls from the scene of an accident, Elephant’s arguments assume a general, overly-broad
duty. As previously noted, the factual predicates giving rise to the duty of reasonable prudence we
consider are: (1) an insured calls her auto insurance company to report an accident or loss; (2) the
auto insurance company hires and trains FNOL representatives who answer such calls and provides
them a script of questions or prompts; (3) such an FNOL representative who answers an insured’s
call learns the insured is at the scene of a recent one-car accident or is trained to determine whether
other drivers are involved in the accident; (4) the FNOL representative can determine the insured’s
coverage; and (5) the auto insurance company has a practice of hiring adjusters to independently
document and take pictures of car damage for claims processing. Thus, we need not consider
whether a broad general duty exists to inquire into and verify every caller’s location or safety. We
only consider whether a duty arises when the above-listed factual predicates are met, in the very
limited context of deciding whether and how to instruct insureds to take pictures at the scene of a
recent one-car accident.
Second, Elephant’s arguments about a supposed inability to comply with its duty to
promptly investigate and process claims are contrary to the summary judgment evidence. The
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evidence shows the utility of pictures of the scene of a one-car accident is questionable because,
when the policy’s coverage is “comprehensive, you know who’s going to pay, you know who’s at
fault because you’re by yourself.” The evidence also shows Elephant has adjusters who
independently obtain pictures to process claims. To process Kenyon’s claim, Elephant used
pictures of the damage to Kenyon’s car that were later taken at a safer location.
Third, Elephant’s arguments about its resultant inability to promptly investigate are
conclusory. They do not explain how pictures from the scene of a one-car accident are beneficial
in processing insurance claims. The arguments are also speculative because they are not based on
any summary judgment evidence or any other part of the record showing pictures from one-car
accidents actually assist auto insurance companies with processing and paying insurance claims.
Elephant’s argument is also wrong as a matter of law. Both the auto insurance policy and state law
gave Elephant up to fifteen days from receiving notice of the claim to commence an investigation
into an insurance claim. Thus, Elephant was not required to immediately obtain pictures from the
accident scene to comply with its duty to promptly investigate Kenyon’s insurance claim. See TEX.
INS. CODE § 542.055(a)(2). Consequently, Elephant’s “parade of horribles” resulting from
imposing a duty “is largely imaginary.” See Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519,
557 (2013) (Ginsburg, J., dissenting).
Fourth, Elephant’s arguments conflate recognizing a duty with establishing liability. We
are not determining “liability” in this appeal; as explained above, our review is limited to the issue
of duty, which is merely a threshold inquiry. See McKinley, 763 S.W.2d at 409; JOHNSON & GUNN,
supra, at 231. In such cases, a plaintiff must still prove the other elements of her negligence claim
to establish liability. For these reasons, we conclude the burden of imposing a duty under the
narrow facts of this case is considerably low.
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b. Magnitude of Harm
Generally, a pedestrian who is hit by a car suffers severe bodily injury or death. We know
this from “common experience and practical sense,” Clark, 452 S.W.2d at 440; from the NHTSA,
which reports “pedestrians [are] dying on America’s roads,” NAT’L HIGHWAY TRAFFIC SAFETY
ADMIN., supra; and from the history of the Move Over Act, which confirms “[m]otorists kill or
injure” pedestrians on roadsides. Senate Transp. Comm., Bill Analysis H.B. 378, supra. Therefore,
the magnitude of harm is significant.
c. Probability or Likelihood of Harm
The likelihood of the general risk of harm is significant. We know this from “common
experience and practical sense,” Clark, 452 S.W.2d at 440; the supreme court’s recognition in
Romero that “the dangers of driving are ubiquitous” regardless of whether the driver is an “urban
commuter” or is driving on a “harrowing two-lane highway[,]” 456 S.W.3d at 566; from the
NHTSA, which reports pedestrian deaths have increased by 35% over a decade, a pedestrian dies
every 88 minutes, and pedestrian deaths accounts for 16% of all traffic fatalities, and these risks
increase when a pedestrian is distracted, NAT’L HIGHWAY TRAFFIC SAFETY ADMIN., supra; and
from the history of the Move Over Act, which echoes and expands upon these statistics, showing
the frequency of such dangers causing severe bodily injury or death. This likelihood of such harm
has been recognized not only in Texas, but in most if not all other states in the country. See, e.g.,
ALA. CODE § 32-5A-58.2. The likelihood of the risk of harm is also shown by the deposition
testimony of Officer Peña, who testified insurance companies ask insureds to take pictures at the
scene of an accident “all the time, . . . [W]e have more issues with people getting out of cars to
[take pictures of] crash scenes than anything else[.] I’ve seen it done in the middle of the highways
[and] on these little back roads.”
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d. Conclusion as to Unreasonableness of the Risk
The significant risk of cars severely injuring or killing insureds on the roadside who are
taking pictures of a recent car accident is unreasonable given the low burden on auto insurance
companies to either forego unnecessary pictures from the scene of a one-car accident or to use
reasonable care in giving an instruction to take such pictures. The unreasonableness of this
foreseeable risk weighs in favor of recognizing a duty under the narrow facts of this case. See
Phillips, 801 S.W.2d at 525.
3. Superior Knowledge or Recognition of the General Risk of Harm
Elephant argues Kenyon admitted she had superior knowledge of the risk. Elephant relies
on Kenyon’s deposition testimony, in which she stated she was in the better position to determine
if she was in a safe place, as compared to Moritz who was at a call center in another state. We hold
this consideration does not weigh against recognizing a duty under the narrow facts of this case.
First, courts generally only weigh this factor when considering the existence of a
nonfeasance duty, such as a duty to warn, protect, or control; not a misfeasance duty to use
reasonable prudence in one’s conduct. See Graff, 858 S.W.2d at 920. Because we need not consider
a duty to warn, protect, or control, this consideration has questionable relevance.
Second, Elephant again misplaces its emphasis on “the exact sequence of events that
produced the harm,” not on “the general danger” itself. See Mellon Mortg., 5 S.W.3d at 655. A
person at the scene of an accident is in a better position to assess the exact sequence of events that
might result in another car hitting someone at the scene of the accident. But we must focus on
knowledge or appreciation of the general danger itself, not the exact sequence of events. See id.
Moritz acknowledged the scene of a recent car accident is dangerous for insureds, demonstrating
that one’s awareness of the general risk of a car hitting a pedestrian on the roadside does not
diminish with increasing physical distance from the roadside.
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Third, the facts of this case involve a driver who had never been in a car accident before,
and an auto insurance company that interacts with insureds at the scene of recent car accidents in
the regular course of its business. It is reasonable to infer an auto insurance company would, as
compared to an ordinary driver, have superior knowledge or recognition of the risk. See Romero,
456 S.W.3d at 565. The testimony Elephant relies on—Kenyon’s deposition testimony that she
believed she and Theodore were safe—must be viewed in context of the evidence that she was,
unfortunately, mistaken. The evidence as a whole, viewed in a light most favorable to Kenyon,
raises a genuine issue of material fact as to this consideration.
4. The Negligence of Other Responsible Parties
Elephant argues pedestrians and other drivers must be responsible for using reasonable
prudence, positing that it should be excused from any duty to use reasonable prudence because
others might be more at fault. The supreme court rejected this position in Ryder Integrated
Logistics, Inc. v. Fayette County, 453 S.W.3d 922, 930–31 (Tex. 2015). Elephant has the right to
argue, as it did in this case, that the insured and other driver should be held proportionately
responsible for their negligence. See id. But in 1973, Texas abandoned the “all-or-nothing system”
that barred a plaintiff from recovery if she is 1% at fault. See id. A plaintiff is barred from recovery
only if her contribution to the alleged harm is greater than 50%. Id. And “the jury is given wide
latitude in determining the negligent parties’ proportionate responsibility.” See Jackson v. Williams
Bros. Constr. Co., 364 S.W.3d 317, 325 (Tex. App.—Houston [1st Dist.] 2011, pet. denied).
Even if a plaintiff and third-party driver would always share some responsibility for such
accidents, this does not excuse an auto insurance company from all liability for foreseeably and
unreasonably contributing to the severe bodily injury or death of its insureds. Consistent with “the
public policy behind the law of negligence which dictates every person is responsible for injuries
which are the reasonably foreseeable consequence of his act or omission,” recognizing a duty
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merely raises the possibility that an auto insurance company might be one of several parties who
must share responsibility for death and severe bodily injury arising from a situation to which it
foreseeably contributed. See Escoto, 288 S.W.3d at 404. The goal of ensuring proportionate
responsibility—among all of those who are responsible—weighs in favor of recognizing a duty
under the narrow facts of this case. See Phillips, 801 S.W.2d at 525.
5. Fraudulent Claims
Elephant argues pictures of car damage from the scene of one-car accidents “facilitate[s]
gathering the best and most contemporaneous evidence.” Although Elephant argued pictures help
“promptly adjust its insureds’ claims,” Elephant has never argued any duty imposed would
interfere with its ability to detect fraudulent claims. Texas law also deters insurance fraud with
criminal penalties. See TEX. PENAL CODE §§ 35.01–.04. For each fiscal year from 2016 to 2018,
the Texas Department of Insurance reported less than thirty cases of motor vehicle insurance fraud
referred for prosecution, including both insurer fraud and claimant fraud. See TEX. DEP’T OF INS.
FRAUD UNIT 2018 ANNUAL REPORT (Dec. 2018), https://www.tdi.texas.gov/reports/pc/
documents/2018fraudreport.pdf. Moreover, the evidence shows Elephant already protects against
fraudulent claims by independently obtaining pictures from its adjusters, collecting other
information, and having a contractual right to deny coverage if a damaged car is repaired or
disposed of before inspection. We cannot say this consideration weighs against recognizing a duty
under the narrow facts of this case.
6. The Right of Control as It Relates to the Foreseeability of the Insured Following
Instructions and Taking Pictures at the Scene of the Accident
“A contract may impose control upon a party thereby creating a duty of care.” Bright, 89
S.W.3d at 606. By its terms and, as a matter of law, Elephant’s auto insurance policy “is a
contract.” USAA Texas Lloyds Co. v. Menchaca, 545 S.W.3d 479, 488 (Tex. 2018). Elephant
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argues it has no ability to control other drivers on the road. But the contract required Kenyon to
“[c]ooperate with [Elephant] in the investigation” or risk losing coverage, thereby imposing a
degree of contractual control over Kenyon. The evidence shows Elephant trained its FNOL
representatives to instruct insureds to take pictures with the specific objective of having insureds
take pictures at the scene of the accident. In City of Denton v. Page, the supreme court recognized
such control exists when discussing the facts of Western Hills Bowling Center; the supreme court
stated that by giving an instruction to an insured, the “insurance company . . . took control of the
premises,” indicating an insurance company can—even remotely—exert control over premises or
an insured. See 701 S.W.2d at 835 (emphasis added).
The summary judgment evidence shows Elephant instructed Kenyon, “Go ahead and take
pictures,” and Elephant routinely instructs insureds who are at the scene of an accident to take
pictures, which in turn triggers the insured’s further contractual obligation to send those pictures
to Elephant. The contractual right to require the insureds to cooperate during an investigation while
insureds are on the roadside at the scene of a recent car accident increases the likelihood that
insureds will follow an instruction to take pictures, and thereby increase their exposure to the risk
of harm posed by other drivers on the road. The auto insurance policy therefore “impose[s] control
upon [the insured].” See Bright, 89 S.W.3d at 606; Arnold, 725 S.W.2d at 167. This right of control
weighs in favor of recognizing a duty under the narrow facts of this case. See Phillips, 801 S.W.2d
at 525.
7. Special Relationship Considerations
The insurance policy also gave rise to the parties’ special relationship, and the narrow facts
of this case strongly implicate most, if not all, of the public policy reasons for recognizing a special
relationship. See Arnold, 725 S.W.2d at 167. Because the call involved an insured and insurance
company, there was unequal bargaining power. See id. An insured who calls from the scene of a
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recent car accident will often be in a more compromised position than insureds who call from a
safer location and when the loss is not so recent. Consequently, “unscrupulous insurers” could
more easily take advantage of the misfortunes of an insured who calls from the scene of a recent
car accident than others. See id. As explained above, the insurance company has the contractual
right to make investigation-related demands when an insured calls from the scene of a car accident.
See id. Furthermore, a duty would disincentivize an “unscrupulous” insurance company from
instructing an insured to take unreasonable risks that, if the insured refused, would result in the
insured’s contractual nonperformance, which the insurance company could then rely on to “deny[]
coverage or delay[] payment of a claim.” See id.
Elephant effectively posits that nothing an auto insurance company’s employee could say
while on the phone with an insured who is at the scene of a recent car accident could breach a duty
of reasonable prudence because such a duty does not exist. As demonstrated by the dissent’s
analysis of the gross negligence issue, holding Elephant owed Kenyon no duty at all would
foreclose the possibility of negligence liability in all similar cases, even under the most extreme
facts, because no duty would exist for “similarly situated actors.” See Pagayon, 536 S.W.3d at
503. The public policy reasons for recognizing a special relationship arising out of an insurance
contract weigh in favor of recognizing a duty under the narrow facts of this case. See Phillips, 801
S.W.2d at 525.
8. The Safety of Police Officers & Other First Responders
Elephant’s practice of instructing insureds to take pictures at car accident scenes also
threatens the safety of police officers and other first responders. The summary judgment evidence
shows Elephant “always recommend[s] that [insureds] call the police.” Kenyon also produced the
deposition testimony of Officer Peña, who testified instructing insureds to take pictures is not
advisable:
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It’s not advisable to put yourself in danger, as well as put[ting] the responding
officers, whether it be officer, firefighter, EMT, . . . at more of a risk because not
only do we have to worry about people involved in the crash, damage to vehicles,
open the roadway, people driving, we have to worry about other people walking
around taking pictures. It creates a bigger hazard and [is] very bad.
Officer Peña further testified “we have more issues with people getting out of cars to [take pictures
of] crash scenes than anything else.”
Elephant argues Officer Peña merely testified he “disapproved of insureds taking photos at
the scene of the accident,” and gave an “unsubstantiated opinion” irrelevant to whether Elephant
could have foreseen the accident. We disagree. First, we note this evidence is relevant not only to
foreseeability, but also to “other considerations” we must account for in determining whether to
recognize a duty; and officer safety is such a consideration. See Pagayon, 536 S.W.3d at 504.
Second, Officer Peña’s testimony is reinforced by the history of the Move Over Act, in which the
Legislature recognized that police officers and first responders are at risk of getting hit by other
cars at accident sites. Third, Officer Peña’s testimony, quoted above, is not an “unsubstantiated
opinion” or expert ipse dixit. Officer Peña specifically testified his opinion was based on his
experience as a police officer with “hundreds and hundreds of crashes,” and his personal
experiences at those accident sites. His testimony about officer safety concerns is based on
reasonable inferences from the role of police officers in securing accident sites while conducting
investigations. Taking this evidence as true, insurance companies encouraging insureds take
pictures at the scene of car accidents increases risk of severe bodily injury and death to police
officers and other first responders. This consideration weighs in favor of recognizing a duty under
the narrow facts of this case. See Phillips, 801 S.W.2d at 525.
B. Conclusion as to the Duty Factors
The general risk of harm in this case is foreseeable and unreasonable given the probability
of death or serious bodily injury to insureds and first responders and the relatively low burden on
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insurance companies to exercise ordinary care under the narrow facts of this case. Other significant
public policy considerations also weigh in favor of recognizing the existing duties that Kenyon
alleged.
CONCLUSION
We accepted this permissive appeal to answer the controlling legal question of whether
Elephant established, as a matter of law, it “owed no duty” as to Kenyon’s claims of common law
negligence, negligent undertaking, negligent training, and gross negligence. For the reasons above,
we answer that question in the negative. We reverse the trial court’s order as to these claims. 23 We
dismiss Kenyon’s issues relating to her misrepresentation claim under the Insurance Code and
DTPA.
Luz Elena D. Chapa, Justice
23
Because this is an interlocutory appeal, and the case is still pending the trial court, we need not remand this case to
the trial court.
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