644 S.W.3d 137
Tex.2022Background
- Lorraine Kenyon lost control of her car in a single-vehicle accident; she was uninjured but the vehicle was disabled.
- While Kenyon was on the phone with Elephant Insurance’s first-notice-of-loss representative, she asked whether they should take photographs; the representative said, “Yes, ma’am. Go ahead and take pictures,” and recommended calling police but gave no safety instructions or directions about time/place/manner.
- Kenyon’s husband Theodore arrived, began taking photos at the roadside, and was struck and fatally injured by a third-party driver who subsequently lost control on the wet road.
- Kenyon (individually and as executrix) sued Elephant for negligence, negligent undertaking, negligent training, and gross negligence, alleging Elephant’s instruction to take pictures increased the risk of harm.
- The trial court granted summary judgment for Elephant on the negligence-related claims (holding no duty), the court of appeals en banc reversed and found a duty could exist, and Elephant petitioned to the Texas Supreme Court.
- The Supreme Court granted review, considered the Phillips duty-balancing factors, and reversed the court of appeals, rendering judgment for Elephant because no legally cognizable duty applied to the circumstances alleged.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether insurer owed duty to avoid increasing physical-risk by requesting photos/post-accident guidance | Kenyon: special insurer–insured relationship creates duty to give safe guidance; Elephant instructed insured to take photos, increasing risk | Elephant: no duty to ensure insured’s physical safety when processing claims or answering calls; request to document damage is part of claim processing | No duty applicable; insurer not liable for negligence on these facts |
| Whether insurer’s duty of good faith/fair dealing covers post‑accident safety guidance | Kenyon: special-relationship duty extends to advice given when reporting claims | Elephant: duty of good faith/fair dealing concerns claim investigation/payment, not on-scene safety instructions | Duty of good faith/fair dealing does not encompass the conduct alleged |
| Negligent-undertaking: did Elephant assume a duty by guiding claim and asking for photos? | Kenyon: Elephant voluntarily undertook to guide post-accident steps, creating reliance and risk | Elephant: answering a call and advising to take photos are not actions "necessary for protection" and no affirmative directions on how/when to take photos were given | Negligent-undertaking fails as a matter of law—no necessary protective undertaking or detrimental reliance |
| Scope of permissive interlocutory appeal: proper scope of appellate review | Kenyon: court of appeals should decide whether any duty exists and its application | Elephant: interlocutory appeals permit full review of the certified legal question, including applicability to facts | Court: permissive interlocutory appeal permits full merits review; but here full Phillips analysis shows no duty |
Key Cases Cited
- Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499 (Tex. 2017) (existence, scope, and elements of duty are legal questions requiring Phillips-style balancing)
- Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d 523 (Tex. 1990) (duty inquiry; courts weigh foreseeability, utility, burden, and control)
- Sabre Travel Int’l Ltd. v. Deutsche Lufthansa AG, 567 S.W.3d 725 (Tex. 2019) (interlocutory appeals should be treated like other appeals and address the certified legal issues)
- Arnold v. Nat’l Cnty. Mut. Fire Ins. Co., 725 S.W.2d 165 (Tex. 1987) (recognition of insurer’s duty of good faith and fair dealing in claim processing)
- Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170 (Tex. 2004) (articulation of factors—risk, foreseeability, social utility, burden—used to determine duty)
- Torrington Co. v. Stutzman, 46 S.W.3d 829 (Tex. 2000) (elements and limits of negligent-undertaking doctrine)
- Austin v. Kroger Texas, LP, 465 S.W.3d 193 (Tex. 2015) (no duty to warn of open and obvious dangers when plaintiff better positioned to assess risk)