Kenyon v. Elephant Ins. Co.
| Decision Date | 01 April 2020 |
| Docket Number | No. 04-18-00131-CV,04-18-00131-CV |
| Court | Texas Court of Appeals |
| Parties | Lorraine KENYON, Individually and as Executrix of the Estate of Theodore Kenyon, Appellant v. ELEPHANT INSURANCE COMPANY, LLC, Appellee |
APPELLANT ATTORNEY, Ryan G. Anderson, Law Offices of Ryan G. Anderson, PLLC, 405 N. St. Mary's Street, Ste. 800, San Antonio, TX 78205, Daniel J. T. Sciano, Grant T. McFarland, Tinsman & Sciano, Inc., 10107 McAllister Freeway, San Antonio, TX 78216, Jason J. Thompson, The Thompson Law Firm, 10107 McAllister Freeway, San Antonio, TX 78216.
APPELLEE ATTORNEY, William M. Orbelo, Attorney at Law, 118 Broadway, San Antonio, TX 78205-1950, Nissa M. Dunn, Houston Dunn, PLLC, 4040 Broadway Street, Suite 515, San Antonio, TX 78209.
Opinion by: Luz Elena D. Chapa, Justice 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.
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.
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 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.
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.
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 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 following principles help clarify why the narrow scope of our appellate review in this permissive appeal is limited to the issue of duty.
"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.
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 ‘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."...
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