Korea Labor Welfare Corporation

Hyundai Marine Fire Insurance Co., Ltd. (Attorney Jung-hun, Counsel for the plaintiff-appellant)

August 19, 2015

Daejeon District Court Decision 2013Gahap103500 Decided December 10, 2014

1. Of the judgment of the court of first instance, the part against the plaintiff, which orders additional payment, shall be revoked.

The defendant shall pay to the plaintiff 74,127,525 won with 5% interest per annum from November 20, 2012 to October 14, 2015, and 20% interest per annum from the next day to the day of full payment.

2. All remaining appeals by the plaintiff and incidental appeals by the defendant are dismissed.

3. All costs of the lawsuit shall be borne by the defendant.

4. The part ordering the payment of money under paragraph (1) may be provisionally executed.

1. Purport of claim

The defendant shall pay to the plaintiff 90,000,000 won with 5% interest per annum from November 20, 2012 to the date of the first instance judgment, and 20% interest per annum from the next day to the date of full payment (the plaintiff has reduced its claim in the trial).

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff corresponding to the amount ordered to be paid additionally shall be revoked. The defendant shall pay to the plaintiff 74,127,525 won with 5% interest per annum from November 20, 2012 to the date of the judgment of the court of first instance, and 20% interest per annum from the next day to the date of full payment.

3. Purport of incidental appeal;

Of the judgment of the first instance, the part against the defendant ordering payment to the plaintiff in excess of KRW 4,056,357 shall be revoked, and the plaintiff's claim corresponding to the above revoked part shall be dismissed.

1. Basic facts

A. The Plaintiff is a juristic person established under the Industrial Accident Compensation Insurance Act and entrusted with industrial accident compensation insurance business by the Minister of Employment and Labor. The Defendant is the insurer who entered into an automobile liability insurance contract (personal compensation I; hereinafter “instant liability insurance”) with respect to the forknives (vehicle registration number omitted) owned by Nonparty 1 (hereinafter “the instant forkives”). Nonparty 3 and Nonparty 4 are the employees of Nonparty 2’s ○○ Steel operated by Nonparty 2, and the DakN Co., Ltd. (hereinafter “this case”) was the prime contractor of ○○ Steel, and entered into a mid-term lease contract or temporary employment contract with Nonparty 1 on the instant forkives.

B. At around 14:00 on October 19, 2010, Nonparty 3, while driving the instant vehicle at the ○○ Steel establishment located in Jinjin-si ( Address omitted), in order to withdraw from the Adong factory building without a license, Nonparty 3 caused an accident (hereinafter “instant accident”) that disregards Nonparty 4’s stop signal and snicks Nonparty 4’s left side bridge while driving the instant vehicle.

C. Nonparty 4 suffered from injury, such as open-to-door declines, slots, and chronlass fever due to the instant accident, and was hospitalized from October 19, 2010 to October 3, 2012 and received hospital treatment (hereinafter “non-party 4”).

D. The Plaintiff recognized the instant accident as an occupational accident under the Industrial Accident Compensation Insurance Act, paid the victim of temporary disability compensation benefits in KRW 52,586,380, and medical care benefits in KRW 88,124,880, and determined to pay disability compensation annuities falling under class 5 of disability grade as disability benefits, and paid disability compensation annuities monthly to the victim. The amount is KRW 113,043,436 when converting it into a lump sum disability benefits.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 through 9, Eul evidence Nos. 1, 3 and 11 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Occurrence of liability for damages;

A. Grounds for liability for damages

1) According to the above facts of recognition, the non-party 3 was driving the instant vehicle without a license and had safe transportation of materials by checking the front and rear left, but it was unreasonable to visit the instant vehicle despite the signal for the suspension of the victim, which caused the instant accident. Thus, the non-party 3, as a direct offender of the tort, is liable to compensate for the damages suffered by the victim due to the instant accident.

2) According to the purport of Gap evidence Nos. 10 and Eul evidence Nos. 10 and 3 and the whole pleadings, it is recognized that non-party Nos. 1 had a coffee finished in the machine room near the instant accident site while sticking the key to the instant vehicle at the time of the instant accident, and Non-party Nos. 1 prepared a "written confirmation of the accident" stating, "non-party No. 3 referred to as "non-party No. 3 was forced to cut back to the next, and Non-party No. 3 was working and the instant accident occurred while the accident occurred." According to the above facts, the non-party No. 1 is not only the owner of the instant vehicle, who is an operator under the Guarantee of Automobile Accident Compensation Act who has been in possession of the operating profit as well as the owner of the instant vehicle, who did not have a driver's license while leaving the instant vehicle without leaving the keys without leaving it as it is at the time of the instant accident, which caused the accident to be caused by the accident.

(b) Set-off of negligence;

However, in light of the above evidence and the records, it is reasonable to consider the fault of the victim as 40%, on the ground that the victim was aware that there was a danger of safety accident in the course of transporting the local forum, and thus, the victim was negligent by neglecting his/her duty of care to promote his/her safety, which was determined to have contributed to the occurrence and expansion of damages.

3. Scope of damages.

The court's explanation on this part is based on the main sentence of Article 420 of the Civil Procedure Act, since the reasoning of the judgment of the court of first instance is the same as that of Paragraph 3.

4. Occurrence of and restrictions on the right of indemnity;

A. The plaintiff's assertion

The instant accident constitutes an insured incident that may be held liable for the insured under the instant liability insurance, and thus, the Defendant is liable for the total amount of KRW 90,000,000,000 (i.e., the maximum amount of the liability insurance proceeds pertaining to the injury + the maximum amount of KRW 70,000,000 for the liability insurance proceeds pertaining to the injury + the maximum amount of the liability insurance proceeds pertaining to the injury). Therefore, the Defendant is liable to pay KRW 90,00,000 to the Plaintiff, who is the right of indemnity under Article 87(1) of the Industrial Accident Compensation Insurance Act, as well as damages for delay.

B. Relevant legal principles

Where the Plaintiff paid insurance benefits due to a disaster caused by a third party’s harmful act pursuant to Article 87(1) of the Industrial Accident Compensation Insurance Act, the Plaintiff may subrogate the right to claim damages against the third party within the limits of the amount of benefits. Meanwhile, the third party referred to in the above provision refers to the insurer, the insured, and the relevant beneficiary, who is not in a direct and indirect relationship with the affected worker directly or indirectly with the insured, and who is liable for damages pursuant to the provisions of the Guarantee of Automobile Accident Compensation Act, the Civil Act or the State Compensation Act for the victimized worker. In addition, in the event of an accident attributable to the insured under liability insurance, the direct claim against the liability insurer recognized as the victim pursuant to Article 724(2) of the Commercial Act is a right separate from the right to claim damages against the insured, and thus, the insurer liable for damages directly against the victim pursuant to Article 724(2) of the Industrial Accident Compensation Insurance Act, regardless of whether the insured constitutes a third party under Article 87(1) of the Industrial Accident Compensation Insurance Act (see Supreme Court Decision 2013Da14294, Dec. 15, 19, 2014, 2014).

(c) Occurrence of the right of indemnity;

The fact that Nonparty 3 operated the instant vehicle with the consent of Nonparty 1, the owner of the instant vehicle, and caused the instant accident is as seen earlier. According to the overall purport of the statement and arguments, if the automobile insurance clause applicable to the instant liability insurance is followed by the standard terms and conditions for automobile insurance, not only the registered insured as indicated in the insurance policy, but also the person who used the insured automobile with the consent of the registered insured but also falls under the insured as the consent insured. In light of the aforementioned legal principles, the Defendant is obligated to respond to the Plaintiff’s compensation regardless of whether Nonparty 1 and the approved insured, the registered insured, as the insurer for the instant vehicle, are third parties as stipulated in Article 87(1) of the Industrial Accident Compensation Insurance Act.

D. Judgment on the defendant's assertion on the limitation of the right to indemnity

1) Summary of the argument

In regard to this, the defendant asserts to the effect that the plaintiff's right to indemnity should be limited to the ratio of negligence, since the defendant is excluded from the third party under Article 87 (1) of the Industrial Accident Compensation Insurance Act as a person having an industrial accident compensation insurance relationship directly or indirectly with the victim, who is the business owner, the non-party 2, the non-party 3, and the subcontractor

2) Relevant legal principles

However, if the plaintiff can claim the total amount of the insurance benefits against the third party under Article 87 (1) of the Industrial Accident Compensation Insurance Act, the third party who has been claimed the amount of the benefits can re-compensation the part of the liability according to the ratio of negligence against the insured who is the joint tortfeasor, and the insured who has responded to the re-compensation can re-re-re-compensation the amount of the liability amount equivalent to the plaintiff by analogy of Article 89 of the Industrial Accident Compensation Insurance Act by analogy of Article 89 of the Industrial Accident Compensation Insurance Act. If such re-compensation is made, it is against the litigation economy, and it is not reasonable to permit the plaintiff to claim the return to the insured, and it is not reasonable in light of the principle of good faith. Thus, the plaintiff cannot claim the amount equivalent to the ratio of negligence of the policyholder against the third party.

However, in accordance with the legal principles of subrogation of an insurer, in order for the insurer to exercise the rights of the policyholder or the insured against a third party, the third party should be the person other than the insured, and in this case, the third party should be the insured. Thus, if the automobile liability insurance policy provides that the insured is the person who uses or manages the motor vehicle with the consent of the named insured, other than the named insured, and the person who is operating the insured motor vehicle for each of the insured, as well as the person who is operating the motor vehicle (including a driver) on behalf of the insured, if the insured event occurred due to such act as the consented insured, the insurer cannot acquire the right in accordance with the legal principles of subrogation of the insurer (see, e.g., Supreme Court Decisions 94Da4813, Jun. 9, 1995; 200Da3089, Jun. 1, 200; 201Da4659, Nov. 27, 2001).

3) Determination

According to the above facts, in accordance with the terms and conditions of automobile liability insurance applicable to the instant liability insurance, not only the registered insured indicated in the insurance policy but also the person who uses the insured motor vehicle with the consent of the registered insured is the consented insured, and the owner and driver of the instant motor vehicle covered by the instant liability insurance are also leased with Nonparty 1, who is the owner and driver of the instant motor vehicle at the construction site at the time of the instant accident and made Nonparty 2, the contractor, enter the construction site at the time of the instant accident to use the motor vehicle, and Nonparty 1, the registered insured, as the owner of the instant motor vehicle, consented Nonparty 3, the employee of Nonparty 2, at the time of the instant accident, to drive the motor vehicle. In light of the above facts, Nonparty 1 and Nonparty 2, and Nonparty 3, the registered insured, as the owner of the instant motor vehicle, shall not be deemed to have been negligent in the judgment of the court below as to whether the accident occurred due to the Defendant’s failure to exercise the duty of care and duty of care as stated in Article 6823 of the Commercial Act.

Therefore, the Defendant’s assertion that if the Defendant would respond to the Plaintiff’s claim, the issue of the re-compensation by the Defendant and the re-re-compensation by the policyholder arises, and eventually becomes a circular suit, which is contrary to the litigation economy and the good faith principle, shall not be accepted, since it starts from the premise different from the above determination.

5. Scope of the right of indemnity;

(a) Relevant legal principles;

Article 3(1) of the former Enforcement Decree of the Guarantee of Automobile Accident Compensation Act (amended by Presidential Decree No. 25149, Feb. 5, 2014; hereinafter “former Enforcement Decree”) provides for the amount of insurance money or mutual aid money (hereinafter “liability insurance money”) to be paid per victim by liability insurance or liability mutual aid to be purchased by a motor vehicle owner under the Guarantee of Automobile Accident Compensation Act; the amount of damage incurred by the victim within the amount prescribed in attached Table 1 in the case of the victim’s injury (Article 2); the victim cannot expect any further treatment effect after the treatment of the injury was completed; and where a physical disability (hereinafter “aftermath disability”) occurred due to the occurrence of the injury under the fixed symptoms, the amount of damage (Article 3(2)2) shall be the sum of the amounts prescribed in subparagraphs 2 and 3 of the attached Table 2.

In light of the general principles of statutory interpretation, comprehensively considering the circumstances where the language and text of Article 3(2)2 of the former Enforcement Decree consists of relatively clear concepts, as well as various circumstances such as the purport of the liability insurance system under the Guarantee of Automobile Accident Compensation Act, the principle of limited liability liability, and the possibility of calculating the damages caused by the injury and the classification of damages caused by the injury, it is reasonable to interpret Article 3(2)2 of the former Enforcement Decree, which provides for the calculation method of liability insurance in the case of the injury inflicted on the injured person due to the same accident, not the amount of damage inflicted on the injured person within the scope of the total sum of the maximum amount under Article 3(1)2 and 3, not the amount of damage inflicted on the injured person (see Supreme Court Decision 2012Da67177, Oct. 30, 2014).

B. Determination

In addition to the purport of the aforementioned facts, the amount of damages caused by the injury of the victim is KRW 79,362,373, reflecting the negligence that the victim contributed to the occurrence and expansion of the damage caused by the accident in this case (=the amount of damages covered by medical expenses + KRW 52,874,928 + KRW 26,487,45), the amount of damages caused by the disability in the period of medical care is 153,184,38, and the amount of damages caused by the disability was 153,184,38, and the Plaintiff paid medical care benefits to the victim amounting to KRW 88,124,80, temporary disability compensation benefits, KRW 52,586,380, and KRW 113,043,436, and the amount of damages covered by the victim’s injury under [Attachment Table 1] of the former Enforcement Decree of the Industrial Accident Compensation Insurance Act, and the amount of damages covered by the victim’s injury is more than KRW 200,700,00,00.

6. Conclusion

Therefore, with respect to the Plaintiff’s KRW 90,00,00 as well as KRW 15,872,475 as cited in the judgment of the court of first instance, the Defendant, upon the Plaintiff’s request, has an obligation to dispute over the existence or scope of the Defendant’s performance obligation from November 20, 2012 to December 10, 2014, calculated at the rate of 5% per annum as stipulated in the Civil Act until December 10, 2014, and at the rate of 20% per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, etc. from the next day to the day of full payment; the portion ordering additional payment in the remaining trial; the amount of KRW 74,127,525, which is the part ordering additional payment in the court of first instance, from November 20, 2012 to the date of full payment; and the damages for delay calculated at the rate of 25% per annum as stipulated in the Civil Act from the date of this judgment.

Therefore, the plaintiff's claim shall be accepted within the scope of the above recognition and the remaining claims shall be dismissed as without merit. Since part of the part against the plaintiff in the judgment of the court of first instance which differs from this conclusion is unfair, the plaintiff's appeal is partially accepted and the defendant is ordered to pay the above money additionally recognized in the trial. Since the remaining part of the judgment of the court of first instance is legitimate, the plaintiff's remaining appeal and the defendant's incidental appeal are dismissed as it is without merit. It is so decided as per Disposition.

Judges Shin Jae-op (Presiding Judge)