                                Fourth Court of Appeals
                                       San Antonio, Texas
                                               OPINION

                                          No. 04-18-00131-CV

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

                                                    v.

                           ELEPHANT INSURANCE COMPANY, LLC,
                                        Appellee

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

Opinion by: Sandee Bryan Marion, Chief Justice
Dissenting Opinion by: Luz Elena D. Chapa, Justice

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

Delivered and Filed: April 24, 2019

AFFIRMED IN PART, DISMISSED IN PART

           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
                                                                                                       04-18-00131-CV


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




1
  In her third issue, Kenyon argues the trial court generally erred in granting summary judgment in Elephant’s favor.
To the extent Kenyon’s third issue is duplicative of her first issue, it is overruled. To the extent Kenyon’s third issue
is duplicative of her second issue, we lack jurisdiction to consider it.


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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




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                                                                                      04-18-00131-CV


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.




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                                                                                                  04-18-00131-CV


        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




2
  Kenyon did not address her claim for negligence per se in her appellate briefing or during oral argument.
Accordingly, to the extent Kenyon argues the trial court erred in granting summary judgment on this claim, Kenyon’s
argument is waived. See TEX. R. APP. P. 38.1.


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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

3
  We disagree with the dissent that Kenyon relies on a “special relationship” giving rise to a duty of care. Kenyon does
not reference “special relationship” anywhere in her brief except in the section addressing negligent failure to train, in
which she states the standard of review “[i]n the absence of a special relationship between an actor and another that
imposes a duty.” Instead, Kenyon urges us to perform the Phillips factors analysis to recognize a duty in this case. To
the extent Kenyon would argue a duty is supported by a special relationship between insured and insurer, we hold that
argument is waived. See TEX. R. APP. P. 38.1. Regardless, any special relationship in the insurance context imposes
on insurers a duty of good faith and fair dealing in processing claims. See Arnold v. Nat’l Cnty. Mut. Fire Ins. Co.,
725 S.W.2d 165, 167 (Tex. 1987). We do not believe such a duty would extend to require an insurer to “exercise
reasonable care in providing [post-accident] guidance so as not to increase the risk of harm to its insured.”


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       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


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                                                                                      04-18-00131-CV


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.


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                                                                                        04-18-00131-CV


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 asked your husband to go take photographs?


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                                                                                      04-18-00131-CV


       [objection]

               [A.] Of course not.

Moritz took Kenyon’s call from Elephant’s call center in Virginia.

       While Elephant and its employees may have more knowledge regarding motor vehicle

accidents generally, Kenyon was in a better position than a person located in Virginia to assess the

risk of Theodore’s and her particular circumstances at the time of the accident. See Ovalle v.

Mares, No. 04-04-00806-CV, 2005 WL 3532809, at *2 (Tex. App.—San Antonio Dec. 28, 2005,

no pet.) (mem. op.) (holding defendant did not owe duty to minor plaintiff she was supervising to

prevent plaintiff from getting into car with intoxicated driver because plaintiff knew driver, spoke

to driver beforehand, and therefore had superior knowledge of driver’s intoxicated state at the

time). Therefore, because Kenyon was in a better position than Elephant to assess the risk of her

particular circumstances, and because there is no dispute Elephant did not have the right to control

the driver who struck Theodore, these considerations weigh against finding a duty in this case.

       iv.     Burden of guarding against injury

       Kenyon argues the burden of imposing a duty on an insurer in a case like this one is

“negligible,” since all “Elephant [had] to do was to take a moment to ask its insured if they are in

a safe location and, if not, to relocate themselves to a safe place and then call back.” Elephant

responds that imposing such a burden on an insurer “would be tantamount to imposing strict

liability on insurers to protect the safety of their insureds from harm caused by third parties over

whom the insurer has no control.”

       While the burden to inquire whether an insured is in a safe location when she calls to report

a claim is not onerous, the burden to actually assess whether an insured is safe and secure enough

to report a claim or take photographs of vehicle damage is likely too onerous for an insurer that is

not present at the accident scene. Further, as Elephant argues, even if an insurer is required merely


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                                                                                      04-18-00131-CV


to ask whether its insured is in a safe location, doing so would not have changed the outcome in

this case. Kenyon testified she felt she was in a safe place at the time she called Elephant, and she

did not believe Theodore was in danger while photographing her vehicle.

       For these reasons, this consideration weighs against finding a duty in this case.

       v.      Conclusion

       Because the considerations regarding risk and foreseeability, superior knowledge and right

to control the actor who caused the harm, and burden on the defendant all weigh against finding a

common law duty of care in this case, we conclude the trial court did not err in concluding Elephant

owed no duty to Kenyon with respect to her common law negligence claim.

C.     Negligent undertaking

       The trial court also granted summary judgment in Elephant’s favor on Kenyon’s negligent

undertaking claim. The premise of Kenyon’s claim is that even if Elephant did not owe Kenyon a

duty of care from the outset, Elephant assumed a duty by undertaking to answer Kenyon’s

telephone call and “lead her through the post-accident process.”

            i. Legal standard

       A duty may arise when a party undertakes to provide services either gratuitously or for

compensation. Torrington Co. v. Stutzman, 46 S.W.3d 829, 837 (Tex. 2000); Harpole, 293 S.W.3d

at 778. The elements of a cause of action for negligent undertaking are:

       (1) the defendant undertook to perform services that it knew or should have known
           were necessary for the plaintiff’s protection; and

       (2) the defendant failed to exercise reasonable care in performing those services;
           and either:

               (a) the plaintiff relied upon the defendant’s performance; or

               (b) the defendant’s performance increased the plaintiff’s risk of harm.



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Harpole, 293 S.W.3d at 778 (citing Stutzman, 46 S.W.3d at 838). There is no cause of action for

negligent undertaking unless the defendant acted or agreed to act expressly for the plaintiff’s

protection. See Knife River Corp.-S. v. Hinojosa, 438 S.W.3d 625, 632 (Tex. App.—Houston [1st

Dist.] 2014, pet. denied); see also Guillory v. Seaton, LLC, 470 S.W.3d 237, 242 (Tex. App.—

Houston [1st Dist.] 2015, pet. denied) (holding non-party to contract had no cause of action against

contracting party that did not agree to provide services for the benefit or protection of non-party

plaintiff).

               ii. Analysis

        To determine whether Elephant assumed a duty to Kenyon, we must determine whether

Elephant undertook to perform services for Kenyon that it knew or should have known were

necessary for Kenyon’s protection. See Stutzman, 46 S.W.3d at 838. Kenyon argues Elephant

undertook to “lead her through the post-accident process” “[b]y creating a call center and training

FNOL employees to answer the insureds[’] calls, often from the scene of an accident, and gather

information from them beyond the information necessary to open a claim.” Kenyon also argues

Elephant “specifically trained [Moritz] not to inquire about the insured’s safety, despite the

knowledge that the insured in general, and Mrs. Kenyon specifically, was in a dangerous

position.” 4

        Kenyon does not cite any authority that this or similar conduct constitutes an undertaking

giving rise to a duty of care beyond Elephant’s contractual duty to process Kenyon’s claim in good

faith. Although Kenyon clearly believed she was calling Moritz for “instruction” regarding her

claim, Kenyon testified she did not ask Moritz for safety advice and did not expect Moritz to



4
  Elephant argues there is no evidence that Elephant affirmatively directed FNOL representatives not to inquire about
insureds’ safety. Rather, the record only reflects that Elephant did not specifically require FNOL representatives to
ask about insureds’ safety.


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provide safety advice. Further, Kenyon expressly argues any undertaking on Elephant’s part was

not for Kenyon’s benefit: “Elephant undertook to guide her through the post-accident process, but

did so only to benefit itself, and was intentionally indifferent to Mrs. Kenyon’s and Mr. Kenyon’s

safety” (emphasis added). 5

         Therefore, because Elephant did not undertake any action for Kenyon’s protection, we

conclude the trial court did not err in concluding Elephant owed no duty to Kenyon with respect

to her negligent undertaking claim.

D.       Negligent failure to train and license

         The trial court also granted summary judgment in Elephant’s favor on Kenyon’s negligent

failure to train and license claim. Kenyon argues Elephant was negligent in its training of FNOL

representatives, including Moritz, which “left [Moritz] ill-equipped to handle Mrs. Kenyon’s call

in a manner that did not increase the risk of danger to her and her husband.”

         “The elements of a cause of action for negligently hiring, supervising, training, or retaining

an employee are the following: (1) the employer owed the plaintiff a legal duty to hire, supervise,

train, or retain competent employees; (2) the employer breached that duty; and (3) the breach

proximately caused the plaintiff’s injury.” Wal-Mart Stores, Inc. v. Sanchez, No. 04-02-00458-

CV, 2003 WL 21338174, at *5 (Tex. App.—San Antonio June 11, 2003, pet. denied) (mem. op.)

(citing LaBella v. Charlie Thomas, Inc., 942 S.W.2d 127, 137 (Tex. App.—Amarillo 1997, writ

denied)). An employer is not liable unless the employee commits an actionable tort under common

law. Id. (citing Gonzales v. Willis, 995 S.W.2d 729, 739–40 (Tex. App.—San Antonio 1999, no



5
 To the extent Kenyon is arguing Elephant is liable based on its failure to act for her benefit, a failure to act does not
give rise to a negligent undertaking claim. See Thornton v. Henkels & McCoy, Inc., No. 13-12-00585-CV, 2013 WL
5676026, at *3 (Tex. App.—Corpus Christi Oct. 17, 2013, no pet.) (mem. op.) (holding defendant that failed to repair
sagging cable line was not liable for negligent undertaking because claim requires an “affirmative course of action”
and cannot be predicated upon an alleged negligent omission or failure to act) (citing Coastal Corp. v. Torres, 133
S.W.3d 776, 780–81 (Tex. App.—Corpus Christi 2004, pet. denied)).


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                                                                                                   04-18-00131-CV


pet.), overruled in part on other grounds by Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d

438, 447–48 (Tex. 2004)).

        Here, the only tortious conduct Kenyon alleges Moritz committed was negligently failing

to “exercise reasonable care in providing [post-accident] guidance so as not to increase the risk of

harm to [Elephant’s] insured”—i.e., the same conduct Kenyon alleges as the basis for her common

law negligence claim. Because we have concluded Elephant (and its agent) did not owe Kenyon

such a duty in this case, we also conclude the trial court did not err in holding Elephant owed no

duty to Kenyon with respect to her negligent failure to train and license claim.

E.      Gross negligence

        Finally, the trial court granted summary judgment in Elephant’s favor on Kenyon’s request

for exemplary damages based upon gross negligence. During the hearing on Elephant’s motion for

summary judgment, Kenyon’s counsel represented that her claim for gross negligence is based on

the same conduct giving rise to her claim for common law negligence—i.e., Elephant was

consciously indifferent to an actual risk that Kenyon (or Theodore) would be harmed by taking

photographs of the vehicle at the accident scene. Again, because we agree with the trial court that

Elephant did not owe Kenyon a common law duty of care in this case, we conclude the trial court

did not err in concluding Elephant did not owe Kenyon a duty with respect to her claim for

exemplary damages based on gross negligence. 6




6
 The dissent expresses concern that under our decision today, nothing an insurer could say or do while on the phone
with an insured at the scene of an accident could breach the duty of ordinary care. We do not intend to reach such a
sweeping conclusion. Rather, we recognize that by taking an affirmative act, a party may incur a “duty to others to
exercise the care of a reasonable man to protect them against an unreasonable risk of harm to them arising out of the
act.” See RESTATEMENT (SECOND) OF TORTS § 302, cmt. a. Based on the facts of this case, however, we do not believe
Elephant affirmatively acted so as to trigger a duty.


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                                                                                    04-18-00131-CV


                                           Conclusion

       Because we conclude 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, we affirm the trial court’s order to the extent it granted Elephant’s

motion for summary judgment on those claims. Because we conclude, and Kenyon agrees, we lack

jurisdiction to consider Kenyon’s second issue, this appeal is dismissed in part for want of

jurisdiction as it relates to the trial court’s order granting summary judgment on Kenyon’s

Insurance Code and DTPA claims.

                                                  Sandee Bryan Marion, Chief Justice




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