                            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


                                                -2-
                                                                                     04-18-00131-CV


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.


                                                -3-
                                                                                      04-18-00131-CV


       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


                                                 -4-
                                                                                       04-18-00131-CV


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


                                                 -5-
                                                                                                        04-18-00131-CV


‘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).



                                                          -6-
                                                                                      04-18-00131-CV


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


                                                 -7-
                                                                                        04-18-00131-CV


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


                                                  -8-
                                                                                                 04-18-00131-CV


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).



                                                      -9-
                                                                                      04-18-00131-CV


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.




                                                - 10 -
                                                                                      04-18-00131-CV


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


                                                - 11 -
                                                                                                 04-18-00131-CV


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).



                                                      - 12 -
                                                                                      04-18-00131-CV


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).


                                                - 13 -
                                                                                              04-18-00131-CV


        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.



                                                    - 14 -
                                                                                                        04-18-00131-CV


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).



                                                           - 15 -
                                                                                                    04-18-00131-CV


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).



                                                        - 16 -
                                                                                       04-18-00131-CV


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


                                                  - 17 -
                                                                                      04-18-00131-CV


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.




                                                - 18 -
                                                                                                   04-18-00131-CV


    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.”).



                                                       - 19 -
                                                                                     04-18-00131-CV


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


                                               - 20 -
                                                                                       04-18-00131-CV


“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.



                                                 - 21 -
                                                                                                   04-18-00131-CV


        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.



                                                       - 22 -
                                                                                                  04-18-00131-CV


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.



                                                       - 23 -
                                                                                                   04-18-00131-CV


        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.



                                                       - 24 -
                                                                                      04-18-00131-CV


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


                                                - 25 -
                                                                                                    04-18-00131-CV


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).



                                                        - 26 -
                                                                                                    04-18-00131-CV


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).



                                                        - 27 -
                                                                                                    04-18-00131-CV


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.



                                                        - 28 -
                                                                                                 04-18-00131-CV


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”).



                                                      - 29 -
                                                                                                     04-18-00131-CV


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.



                                                        - 30 -
                                                                                       04-18-00131-CV


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


                                                - 31 -
                                                                                     04-18-00131-CV


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




                                               - 32 -
                                                                                    04-18-00131-CV


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


                                              - 33 -
                                                                                     04-18-00131-CV


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




                                               - 34 -
                                                                                  04-18-00131-CV


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


                                              - 35 -
                                                                                    04-18-00131-CV


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


                                               - 36 -
                                                                                      04-18-00131-CV


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


                                                - 37 -
                                                                                                  04-18-00131-CV


        [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


                                                       - 38 -
                                                                                                04-18-00131-CV


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.



                                                     - 39 -
                                                                                     04-18-00131-CV


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


                                               - 40 -
                                                                                      04-18-00131-CV


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,



                                                - 41 -
                                                                                     04-18-00131-CV


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


                                               - 42 -
                                                                                                        04-18-00131-CV


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.



                                                          - 43 -
                                                                                                    04-18-00131-CV


         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”).



                                                        - 44 -
                                                                                                 04-18-00131-CV


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).



                                                      - 45 -
                                                                                       04-18-00131-CV


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




                                                  - 46 -
                                                                                      04-18-00131-CV


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




                                                - 47 -
                                                                                                   04-18-00131-CV


“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.



                                                       - 48 -
                                                                                       04-18-00131-CV


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



                                                 - 49 -
                                                                                      04-18-00131-CV


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.




                                                 - 50 -
                                                                                      04-18-00131-CV


       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.”




                                                - 51 -
                                                                                      04-18-00131-CV


       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.


                                                - 52 -
                                                                                        04-18-00131-CV


        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


                                                 - 53 -
                                                                                   04-18-00131-CV


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



                                               - 54 -
                                                                                         04-18-00131-CV


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


                                                  - 55 -
                                                                                     04-18-00131-CV


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:


                                               - 56 -
                                                                                      04-18-00131-CV


       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


                                                - 57 -
                                                                                                       04-18-00131-CV


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.



                                                         - 58 -
