2016 grouped 215546 (Counterclaim)

Law Firm just Law, Attorney Kim Min-ho, Counsel for defendant-appellant

Law Firm Site, Attorney Kim Yong-han, Counsel for defendant-appellant

2. The Plaintiff (Counterclaim Defendant) shall pay to the Defendant (Counterclaim Plaintiff) 66,970,225 won with the interest of 5% per annum from November 7, 2015 to February 9, 2018, and 15% per annum from the next day to the day of full payment.

3. The plaintiff (Counterclaim defendant)'s remaining main claim and the remaining counterclaim claims of the defendant (Counterclaim plaintiff) are dismissed, respectively.

4. The costs of the lawsuit are assessed against the Plaintiff (Counterclaim Defendant) and the remainder, respectively, by the Plaintiff (Counterclaim Plaintiff).

5. Paragraph 2 can be provisionally executed.

Counterclaim: The plaintiff shall pay to the defendant 125,04,000 won with 5% interest per annum from November 7, 2015 to the service date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of full payment.

1. Facts of recognition;

A. As indicated in the separate sheet, C was involved in gas-savinging, remodeling, and disposal (the same shall apply to the saving device, details in the separate sheet, and the indication in the separate sheet; hereinafter referred to as “gas”) by negligence while driving Eone Star Vehicles (hereinafter referred to as “the instant vehicle”) within the construction site of Pyeongtaek-si D on November 16, 2015 (hereinafter referred to as “the instant accident”).

B. The instant accident destroyed the opening and closing machine of this case (the instant accident was destroyed immediately after the opening and closing of the instant accident). Moreover, in around September 2017, an appraiser conducted an appraisal in the instant case, gas was leaked and the exhaust gas was destroyed due to the destruction of the exhaust gas. Moreover, all other rackers, such as the blocking machine, short circuit, lightning, earthing machine, earthing, and transformers that were all damaged.

C. The Plaintiff is an insurer who had entered into an automobile insurance contract with C as the insured with respect to the instant vehicle (the maximum amount of KRW 200,000) with C. The Plaintiff is an insurer who had entered into an automobile insurance contract with respect to the instant vehicle as the insured.

D. The instant opening and closing machine is an object owned by the Defendant, which was established by the Defendant within D on April 2015 in accordance with the construction contract with the Korea Land and Housing Corporation (the instant accident was completed before completion, and accordingly, the instant opening and closing machine was still owned by the Defendant, and the Defendant purchased a new opening and closing machine and installed, and delivered it to the Korea Land and Housing Corporation following the instant accident).

[Ground of recognition] The descriptions of Gap evidence Nos. 1 through 11, Eul evidence Nos. 1 through 15, and the purport of the whole pleadings

2. Determination

According to the above facts of recognition, the Plaintiff, the insurer, is obligated to directly compensate the Defendant for the damage incurred by the opening and closing of the instant case due to the instant accident.

3. Judgment on the plaintiff's assertion

(a) Exemption;

1) The plaintiff's assertion

The Plaintiff is exempted from liability pursuant to Article 8(3)2 or 6 of the Insurance Contract Terms and Conditions.

2) Determination

A) Under an insurance policy, any loss arising from property owned, used, or managed by the insured’s employer when the insured is engaged in his/her business is not compensated (Article 8(3)2 of the Insurance Policy, and Article 8(3)2 of the Insurance Policy: grounds for recognition: 5). However, there is no evidence to deem the Defendant as the insured’s employer. Accordingly, the Plaintiff’s assertion premised on this cannot be accepted.

B) Under the insurance terms and conditions, the insured does not compensate for any damage caused by underground cables, ductss, or other facilities while the insured used or managed the insured motor vehicle for construction works, or by the collapse or collapse of the structure of the ground (Article 8(3)6 of the Insurance Terms and Conditions, and the ground for recognition: the entry of the evidence No. 5). However, it is difficult to view the instant accident as an accident caused during the process of the insured motor vehicle’s use or management for construction works by C, the insured motor vehicle, and there is no other evidence to acknowledge this otherwise. Accordingly, the Plaintiff’s assertion on this part cannot be accepted.

(b) A causation;

In full view of the statements in Eul evidence Nos. 1 through 15 and the purport of the entire argument as a result of appraiser F’s appraisal, it is determined that gas leakage of the opening and closing machine of this case was caused by the accident of this case (the body of the opening and closing machine of this case was directly damaged due to the accident of this case). However, there was a reason to examine whether there was damage to the body of the opening and closing machine of this case immediately after November 2016, the results of the investigation conducted by this case were considerably damaged, and the closing and closing machine of this case was dismantled. Furthermore, the gas leakage of the heat around September 2017, which was the appraisal date of this case, and the destruction of the exhaust gas was difficult, considering the structure and function of the gas-saving disposal, even though it was inside the time of the accident of this case, it is determined that considerable shock was caused, and it is difficult to view that gas leakage was caused by the accident of this case after the removal of the closing and closing machine of this case to another place, and there was no possibility of damage between the plaintiff’s allegation and the accident.

4. Damages;

(a) Repair expenses;

1) In a case where an article was damaged due to a tort, if possible, the damage is the cost of repair, and if it is impossible to repair it, the decrease in exchange value shall be deemed ordinary damages (see, e.g., Supreme Court Decisions 81Da8, Jun. 22, 1982; 91Da42883, Mar. 10, 192).

2) The Defendant asserts as follows. The closing and closing of the instant case is impossible. Accordingly, the exchange value reduction is ordinary damages. However, there is no exchange price remaining as the closing and closing of the instant case is entirely unusable. Ultimately, the entire value of the new product price of KRW 98,640,000 ought to be considered as damages immediately (the Defendant’s replacement and supply of the new product as seen earlier).

However, the status of acceptance of the opening and closing date of the instant case is as follows. Accordingly, the Defendant’s above assertion on a different premise cannot be accepted without any further review. However, in the purport of the entire pleadings, the Defendant’s above assertion appears to include the purport of claiming only the repair cost in cases where the repair cost falls short of the exchange price. As such, it is examined as to the repair cost below.

3) Only 5 U.S. G. G. 1 (hereinafter referred to as “this case”). The manufacture of this case was calculated on November 23, 2016 as 75,50 USD (hereinafter referred to as “USD”). On the other hand, the manufacture of this case was estimated on November 31, 2016 by 70 U.S. office using tools for repair between the manufacture of this case and 60 U.S. headquarters as a result of 10 U.S. office inspection, and if necessary, 6 U.S. office equipment was visited to ascertain the leakage of gas at 60 U.S. office, 7 U.S. office equipment used for repair x 10 U.S. office equipment used for repair x 10 U.S. office equipment used for repair x 10 U.S. office equipment used for storage / removal 2 of 4 U.S. office equipment used for precise inspection. On the other hand, it appears to have been removed from 60 U.S. office equipment for repair.

4) Meanwhile, the Defendant also asserts as follows. Even if it is possible to repair the opening and closing machine of this case, the repair cost exceeds the exchange price for the closing and closing machine. Accordingly, the opening and closing machine of this case is economically in an unrepairable condition. Ultimately, the Plaintiff shall compensate for the total exchange price of the closing and closing machine of this case for damages (where excessive repair cost is expected to exceed the ordinary exchange value, the Plaintiff is liable to compensate for damages in principle of equity, but the Defendant, who is the victim, refers to such economic unrepair condition on the ground of his claim for reduction.)

In light of the above, the repair cost of the opening and closing machines of this case may be deemed to be an economic impossibility of repair if the exchange cost is considerably high. As seen earlier, the Defendant asserted that the repair cost of the opening and closing machines of this case is KRW 80,671,750 [the Defendant is the sum of the 1 and the 2nd estimate (32,80 USD + 75,500 USD). However, in consideration of the two cases, it is a matter of choice rather than adding it to the 2nd estimate of the repair cost, and the repair cost of the second estimate (75,500 USD) is deemed to be an economic impossibility of repair if the opening and closing machines of this case were to be moved to the United States. Meanwhile, it is difficult to view that the Plaintiff was aware of or was not 60% of the total appraisal cost of this case at the time of the opening and closing machines of this case, and thus, it is difficult to view that the appraisal cost of this case was 70,000 won or less at the time of this case’s appraisal.

(b) Installation expenses;

In full view of the statement No. 3 and the purport of the entire argument as a result of appraiser F’s appraisal, it is recognized that KRW 15,000,000 was entered in the repair and re-installation of the opening and closing machine of this case. Thus, the above installation cost of KRW 15,00,000 is also losses in connection with the accident of this case.

C. As to the Plaintiff’s assertion of special damage

1) The plaintiff's assertion

Under a contract with the Korea Land and Housing Corporation, the Defendant installed a non-domestic opening or closing machine. Accordingly, the costs exceeding the repair costs and installation costs of domestically produced goods with the same performance and quality, out of the repair costs and installation costs of the instant opening or closing machine, are damages due to special circumstances. C was unaware of such circumstances, and therefore, the Plaintiff is not liable to compensate for that part.

2) Determination

It is a matter of determining the scope of damages with causation. This is intended to ensure equity in compensation for damages by including in the scope of compensation by proving that the obligor knew or could have known the circumstances causing the damages, if the parties were to have anticipated that the obligor would have caused the nonperformance, as a matter of course, in full view of the circumstances such as the party’s occupation, mode of tort, type of object, etc.

Therefore, in a case where an article is damaged by a tort, beyond a generally anticipated physical value infringement, if individual and specific characteristics of the article are incurred, this may also be deemed a special damage. This is determined by comprehensively taking account of various circumstances per individual case (i.e., the Defendant asserts that the repair cost incurred by a vehicle accident, regardless of whether it is domestically or overseas, is all ordinary damages and the repair cost should be the same as that of this case. However, in the case of a vehicle accident, the entire repair cost cannot be readily concluded as ordinary damages at all times. Considering the current domestic automobile market, it cannot be said that the domestically or external vehicle is not a standard for dividing ordinary damages and special damages. However, only a unique nature of an accident (i.e., where a vehicle that is not regularly imported in Korea has to receive parts necessary for its repair from a foreign country, it would be difficult to view that the vehicle is ordinarily aware of, or could not easily expect, the overall repair cost of an accident, regardless of the general nature of an accident such as an accident.

In light of the fact that the opening and closing period of this case is not a domestic product, only the damages calculated based on the domestic product constitute ordinary damages, and the remainder does not constitute special damages. It must be examined whether the repair cost of the opening and closing period of this case includes damages exceeding ordinary levels due to the individual and specific characteristics of the opening and closing period of this case. The above repair cost of KRW 80,671,750, supra, is determined to have caused serious damages as in this case as seen earlier. It is difficult to view that the opening and closing period of this case includes the repair cost that is ordinarily unpredictable in the general opening and closing period due to the characteristics of the U.S. product or other characteristics. Accordingly, this constitutes ordinary damages. Moreover, this part of the Plaintiff’s assertion is not accepted for the same reason.

(d) comparative negligence and limitation on liability;

Considering the price and function of the opening and closing machine of this case, the repair process at the time of damage and the impact of the damage on safety, etc., there is no particular warning to inform the existence of and the risk of damage to the opening and closing machine of this case at the time of damage. Although safety fences have been installed, it is merely a use to prevent external access than the prevention of shock, and there was no preparation for the shock that may occur from the accident. It is determined that the negligence was the defendant's fault. Considering that the above negligence contributed to the expansion of damage caused by the accident of this case (the fact that the non-indicted Ha continues to work at the large-scale construction site, the defendant should have taken measures to prepare for the accident that may occur in the course of this case. On the other hand, since the accident site is managed by H, not the defendant, the defendant did not have a duty to take measures against the defendant, and therefore, the defendant's assertion that there was no negligence is no negligence, this shall not be accepted).

5. Sub-committee

(a) Counterclaim;

The Plaintiff is obligated to pay to the Defendant the amount of KRW 66,970,225 [=95,671,750 won + KRW 80,671,750 + KRW 15,00,00] x 70%] x the amount of damages for delay calculated at each rate of 15% per annum from November 7, 2015 to February 9, 2018, which is the date of this judgment, and from the next day to the date of full payment.

(b) Main cattle;

As to the instant accident, it is confirmed that the Plaintiff’s damage liability against the Defendant does not exist beyond the money recognized in the said paragraph (as long as the Defendant contests the existence and scope of damage compensation, the Plaintiff’s benefit to seek confirmation is recognized).

6. Conclusion

The plaintiff's main claim and the defendant's counterclaim are accepted within the scope of the above recognition, and the remainder of the main claim and the counterclaim are dismissed, respectively.

A person shall be appointed.

A person shall be appointed.