Court of Appeals of Texas, Fourth District, San Antonio
Lorraine KENYON, Individually and as Executrix of the Estate of Theodore Kenyon, Appellant
ELEPHANT INSURANCE COMPANY, LLC, Appellee
the 224th Judicial District Court, Bexar County, Texas Trial
Court No. 2016CI14055 Honorable Michael E. Mery, Judge
Sitting: Sandee Bryan Marion, Chief Justice, Rebeca C.
Martinez, Justice Luz Elena D. Chapa, Justice.
Bryan Marion, Chief Justice.
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").
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
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
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
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.
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.
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
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.
preliminary matter, we consider whether and to what extent we
have jurisdiction over this permissive interlocutory appeal.
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.).
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.
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
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,  and exemplary damages
based on gross negligence.
Standard of review
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.
Common law negligence
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.
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
Phillips factors analysis
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
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.
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.
Foreseeability of risk
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.
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
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
Superior knowledge of the risk or right to control the actor
who caused the harm
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
[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?
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
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