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Kenyon v. Elephant Insurance Company, LLC

Court of Appeals of Texas, Fourth District, San Antonio

April 24, 2019

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.

          Sitting: Sandee Bryan Marion, Chief Justice, Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice.

          OPINION

          Sandee Bryan Marion, Chief Justice.

         Appellant Lorraine Kenyon, Individually and as Executrix of the Estate of Theodore Kenyon, ("Kenyon") brings this permissive interlocutory appeal from the trial court's order granting partial summary judgment in favor of Appellee Elephant Insurance Company, LLC ("Elephant").

         In her first issue, Kenyon argues the trial court erred in ruling Elephant did not owe Kenyon a duty with respect to her claims for common law negligence, negligent undertaking, negligent failure to train and license, negligence per se, and gross negligence. Because we conclude the trial court's ruling is correct as a matter of law, we affirm the trial court's order granting summary judgment on Kenyon's negligence claims.

         In her second issue, Kenyon argues the trial court erred in granting summary judgment on her claims for Texas Insurance Code and Texas Deceptive Trade Practices Act ("DTPA") violations based on alleged misrepresentations. Neither this court nor the trial court expressly granted Kenyon permission to appeal this portion of the summary judgment order. Accordingly, this appeal is dismissed in part for want of jurisdiction as it relates to Kenyon's second issue.[1]

         Background

         A. Factual background

         On March 10, 2016, Kenyon was involved in a single-vehicle accident when she lost control of her vehicle on a rain-slick road in San Antonio. While inside her vehicle on the side of the road, Kenyon first called her husband Theodore and then Elephant, her insurer. A volunteer firefighter stopped by on his way to another call and asked whether Kenyon was okay. Kenyon declined assistance and told the firefighter "it was okay."

         Elephant's first notice of loss ("FNOL") representative Kaitlyn Moritz ("Moritz") answered Kenyon's call from Elephant's call center in Virginia. Kenyon described the accident and asked Moritz: "Do you want us to take pictures?" Moritz answered: "Yes, ma'am. Go ahead and take pictures. And—And we always recommend that you get the police involved but it's up to you whether you call them or not." Moritz testified she was trained to get information about the accident, who was at fault, and whether there were any injuries, as well as to encourage the insured to take photographs of the accident scene. Moritz was not trained to inquire about the insured's safety or to ask whether the insured is in a safe location.

         While Kenyon was on the phone with Moritz, Theodore arrived at the scene. Kenyon told Theodore "they need pictures," and he began taking photographs of Kenyon's damaged vehicle. As Theodore was taking photographs, another motorist, Kimberly Pizana ("Pizana"), lost control of her vehicle and collided with Theodore. Theodore later died of his injuries.

         B. Procedural background

         Individually and as executrix of Theodore's estate, Kenyon sued Pizana for negligence and Elephant for common law negligence, negligent undertaking, negligent failure to train and license, negligence per se, and exemplary damages based on gross negligence. Kenyon also asserted Insurance Code and DTPA claims against Elephant based on Elephant's alleged misrepresentation that photographs were required for coverage, as well as additional claims related to Elephant's alleged failure to timely settle and pay her uninsured/underinsured motorist ("UIM") coverage claims.

         Elephant filed traditional and no evidence motions for summary judgment. After a hearing, the trial court found Elephant "owed no duty to [Kenyon] with respect to [her] negligence, negligent undertaking, negligent failure to train and license, negligence per se, and gross negligence claims" and granted summary judgment in Elephant's favor on each of those claims. Pursuant to Texas Civil Practice and Remedies Code § 51.014(d) and Texas Rule of Civil Procedure 168, as well as the parties' mutual agreement, the trial court expressly permitted Kenyon to file an interlocutory appeal of this portion of the summary judgment order. The trial court also granted summary judgment in Elephant's favor on all of Kenyon's remaining claims except those related to UIM coverage. The UIM coverage claims and Kenyon's negligence claim against Pizana are the only claims that remain pending in the trial court. Kenyon timely filed a petition for permissive appeal in this court, which was granted.

         Jurisdiction

         As a preliminary matter, we consider whether and to what extent we have jurisdiction over this permissive interlocutory appeal.

         The trial court's summary judgment order satisfies the technical requirements for permissive appeal by stating: (1) the "controlling issue of law" appealed, which is "[w]hether [Kenyon] [is] entitled to assert a cause of action for common law negligence, negligent undertaking, negligent failure to train and license, negligence per se, or gross negligence against [Elephant] for damages arising from the death of Theodore Kenyon"; (2) there is substantial ground for difference of opinion on this controlling issue of law; and (3) an immediate appeal from the order may materially advance the ultimate termination of the litigation. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d); City of San Antonio v. Tommy Harral Constr., Inc., 486 S.W.3d 77, 80-81 (Tex. App.—San Antonio 2016, no pet.).

         In addition, the trial court made a substantive ruling on the specific legal issue presented, holding Elephant "owed no duty to [Kenyon] with respect to [her] negligence, negligent undertaking, negligent failure to train and license, negligence per se, and gross negligence claims." See Tommy Harral, 486 S.W.3d. at 80 ("Because an appellate court may only address an action taken by the trial court, the record presented upon a permissive appeal must reflect the trial court's substantive ruling on the specific legal issue presented for appellate-court determination."). Therefore, we have jurisdiction over this permissive appeal to the extent it is limited to the "controlling question of law" articulated by the trial court. Kenyon's first issue squarely addresses this question.

         Kenyon's second issue, however, addresses whether the trial court erred in granting summary judgment on Kenyon's claims for Insurance Code and DTPA violations. We lack jurisdiction to review that question. See id. at 82-83 (concluding appeal must be dismissed because "jurisdictional requirement that the record affirmatively reflect the trial court's substantive ruling on the issue presented on appeal has not been satisfied"). Accordingly, we dismiss Kenyon's second issue for want of subject matter jurisdiction.

         Discussion

         Kenyon argues the trial court erred in granting traditional summary judgment in Elephant's favor on her claims for common law negligence, negligent undertaking, negligent failure to train and license, negligence per se, [2] and exemplary damages based on gross negligence.

         A. Standard of review

         We review the grant of traditional summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). The party seeking traditional summary judgment has the burden to show no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. Id. at 215-16 (citing Tex.R.Civ.P. 166a(c)). "When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor." Id. at 215.

         B. Common law negligence

         The trial court granted Elephant's motion for traditional summary judgment on Kenyon's common law negligence claim based on its conclusion that Elephant did not owe Kenyon a duty of care. Kenyon argues the trial court erred because an insurer owes its insured a common law duty to "exercise reasonable care in providing [post-accident] guidance so as not to increase the risk of harm to its insured." During oral argument, Kenyon asserted this duty necessarily obligated Elephant to ascertain whether Kenyon was safe before permitting or encouraging her (and Theodore) to take photographs of her vehicle.

         The question before the trial court and this court is whether Texas law recognizes a duty on the part of an insurer who accepts a call from its insured and provides "post-accident guidance." Kenyon and Elephant agreed during oral argument that there does not appear to be any Texas precedent for recognizing such a duty under these or similar circumstances. Accordingly, we apply the "Phillips factors" analysis, described below, to determine whether to recognize such a duty in this case.[3]

         i. Phillips factors analysis

         "The threshold inquiry in a negligence case is duty. . . . [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, 525 (Tex. 1990); accord Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499, 503 (Tex. 2017). In a case in which a duty has not been recognized under the particular circumstances presented, we must determine whether such a duty should be recognized. Pagayon, 536 S.W.3d at 503. The supreme court has articulated considerations for doing so:

The considerations include social, economic, and political questions and their application to the facts at hand. We have weighed the risk, foreseeability, and likelihood of injury against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant. Also among the considerations are whether one party would generally have superior knowledge of the risk or a right to control the actor who caused the harm.

Id. at 504 (quoting Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170, 182 (Tex. 2004)). "Of all these factors, foreseeability of the risk is the foremost and dominant consideration." Phillips, 801 S.W.2d at 525 (internal quotation marks and citation omitted).

         Some of these considerations, such as risk and foreseeability, "may turn on facts that cannot be determined as a matter of law and must instead be resolved by the factfinder." Humble Sand & Gravel, 146 S.W.3d at 182. Such cases are "unusual," however, because "the factual situation presented must be evaluated in the broader context of similarly situated actors." Pagayon, 536 S.W.3d at 504 (citing Humble Sand & Gravel, 146 S.W.3d at 182). "The question is whether a duty should be imposed in a defined class of cases, not whether the facts of the case at hand show a breach." Id. In addition, the material facts in most cases are either undisputed or can be viewed in the light required by the procedural posture of the case. Id.

         Here, the facts material to our inquiry are essentially undisputed and, in any event, must be viewed in the light most favorable to Kenyon as the summary judgment nonmovant. See id.; see also Knott, 128 S.W.3d at 215 ("When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor."). Accordingly, we apply the facts in the record and weigh the relevant considerations to determine whether to recognize the duty Kenyon advocates.

         ii. Foreseeability of risk

         "In the absence of foreseeability, there is no duty." NationsBank, N.A. v. Dilling, 922 S.W.2d 950, 954 (Tex. 1996) (per curiam); accord Midwest Emp'rs Cas. Co. ex rel. English v. Harpole, 293 S.W.3d 770, 779 (Tex. App.—San Antonio 2009, no pet.). "Harm is foreseeable if a person of ordinary intelligence should have anticipated the danger created by an act or omission." Bos v. Smith, 556 S.W.3d 293, 303 (Tex. 2018). Where courts are asked to determine whether a defendant has a duty to protect a plaintiff from the tortious or criminal conduct of third parties, "[f]oreseeability usually is determined by whether the defendant is aware of prior, similar conduct by third parties." Id. (internal quotation marks and citation omitted). The prior conduct of third parties must be sufficiently similar to give the defendant notice of the general nature of the danger. Id. We must consider not only the foreseeability of a general danger, but whether the injury to the plaintiff (or someone similarly situated) could be anticipated. Id.

         Here, Kenyon argues "[i]t is readily foreseeable that in sending an insured out into the accident scene to take photographs, the insured might be struck by another vehicle and injured." In support, Kenyon cites Elephant's FNOL representative Moritz's testimony that she understands "there may be dangerous situations or circumstances" surrounding an insured who calls to report a single-vehicle accident. Kenyon also cites the testimony of the responding police officer, who stated it is generally not advisable for motorists to photograph crash scenes because doing so "put[s] [one]self in danger."

         There is no evidence in the record, however, that Elephant was aware of any prior, similar incidents in which an insured was injured (much less struck by another vehicle) while photographing an accident scene. There also is no evidence Elephant was aware of the potential risk of injury to Theodore. A fair reading of the transcript of Kenyon's call to Elephant demonstrates Moritz was not aware Theodore had arrived at the scene and commenced taking photographs at Kenyon's instruction. Even where it is generally foreseeable that "there may be dangerous situations or circumstances," a defendant has no legal duty to protect a plaintiff from a particular injury the defendant could not reasonably have foreseen. See Timberwalk Apartments, Partners v. Cain, 972 S.W.2d 749, 757 (Tex. 1998); Bos, 556 S.W.3d at 304; Mellon Mortg. Co. v. Holder, 5 S.W.3d 654, 657 (Tex. 1999); see also Harpole, 293 S.W.3d at 780-81. Absent anything in the record demonstrating Elephant was aware of prior, similar injuries, the foreseeability consideration weighs against finding a duty in this case. See Bos, 556 S.W.3d at 303.

         iii. Superior knowledge of the risk or right to control the actor who caused the harm

         Kenyon argues Elephant had superior knowledge of the risk because Kenyon told Moritz it was her first accident. In response, Elephant cites Kenyon's testimony indicating she was in the best position to assess the risk to Theodore:

Q. [by Elephant's counsel] Well, between you and Ms. Moritz, were you in the better position to evaluate your situation—situation to determine if you were in a safe place?
[objection]
[A.] [by Kenyon] Yes. . . .
Q. At that point in time, are you feeling like you're in a safe place?
A. Yes. . . . I'm off the road. . . . Yeah. No one's going to hit me, I thought. . . .
Q. When your husband came up and you had that conversation with him about the photographs, did you feel like your husband was in a dangerous place at that time?
A. No.
Q. If you had felt that he was in a dangerous position, would you have taken action to make sure he was no longer in a dangerous position?
A. Yes.
Q. Like tell him to get out of the road or, "Let's get out of here," or something like that?
A. Yes. . . .
Q. . . . When your husband got there and you had felt like y'all were in a dangerous place and another car could come around and hit y'all at any moment, would you have ...

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