[1] In a case where an accident caused by a third party's act causes damage to the insured to both the subject matter of insurance and the property that is not the subject matter of insurance, and the insurer pays insurance money to the insured, the method of determining the scope of the effect of subrogation by the insurer

[2] The case holding that in a case where Company A and Company B concluded an insurance contract with Company B as the subject matter of insurance with Company B, and then destroyed not only the goods within Company B’s stores but also the goods within the temporary warehouse due to a fire that occurred during the roof reinforcement work of the building owned by Company B, and Company A paid insurance money to Company B for the total amount of damages arising from the subject matter of insurance and sought reimbursement against Company C, etc., the case holding that Company A may seek payment of the amount of damages for the damages suffered by Company B as to the subject matter of insurance, but it cannot claim payment of damages for the property, etc. which is not the subject matter of insurance

[1] Article 682 (1) of the Commercial Act / [2] Article 682 (1) of the Commercial Act

[1] Supreme Court en banc Decision 2014Da46211 Decided January 22, 2015 (Gong2015Sang, 237) Supreme Court Decision 2019Da240629 Decided November 15, 2019

D non-life insurance Co., Ltd. (former Trade Name: Eastern Fire Marine Insurance Co., Ltd.) (Gangnam General Law Firm, Attorneys Lee Il-il et al., Counsel for plaintiff-appellee

Defendant 1 and two others (Law Firm Han-chan et al., Counsel for the defendant-appellant)

Seoul Central District Court Decision 2017Na51770 Decided February 14, 2018

Of the judgment of the court below, the part on the claim for damages against the Defendants by Nonparty 1, 37,850,312 out of the exercise of the insurer's subrogation right, and damages for delay, shall be reversed, and this part of the case shall be remanded to the Seoul Central

The grounds of appeal are examined.

1. The judgment of the court below

As to the damage of Nonparty 1 caused by the instant fire, the lower court acknowledged that Defendant 1 was the owner of the structure, and Defendant 2 was the user of the structure, and each liability for damages was established as the liability insurance company of Defendant 1, and the Defendants were limited to 20% of the Defendants’ liability for damages, and the Defendants jointly held that they were liable to compensate Nonparty 1 for the damage amounting to KRW 63,292,192 [Article 63,292,192 [Article 189,251,564 x 20%) + (Article 127,209,3999 x 20%) x 20%).

Then, based on its reasoning, the lower court rejected all of the Plaintiff’s claims on the ground that, although the Plaintiff paid the full amount of insurance proceeds for Nonparty 1’s damage to the subject matter of the instant insurance, Nonparty 1, the insured, as long as the damage equivalent to KRW 127,209,39 on the goods, etc. in the temporary warehouse, which is not the subject matter of the insurance, remains remaining as the remaining damage, the Plaintiff could not exercise the right to claim damages against Nonparty

2. Judgment of the Supreme Court

However, the lower judgment on the part of the insurer’s subrogation right concerning the amount of the Defendants’ liability for damages against Nonparty 1 is difficult to accept for the following reasons.

A. In a case where a third party, at the same time, is liable to compensate for an insurance accident of a non-life insurance, and the insured claims for damages against him/her, the insured may claim against a third party for the performance of his/her liability to compensate for all or part of the remaining damages when there is any loss that remains without compensating the insurance proceeds received from the insurer (see, e.g., Supreme Court en banc Decision 2014Da46211, Jan. 22, 2015). If the loss is fully compensated with the insurance proceeds, the insurer may claim against the third party by subrogation.

Where a single accident causes a lump sum loss to an insured subject matter and property which is not an insurance subject matter, subrogation under Article 682 of the Commercial Act, which is premised on legal relations arising from an insurance contract, cannot be applied to the damage incurred to property which is not an insurance subject matter. Therefore, the scope of subrogation by an insurer shall be calculated as the subject matter of an insurance (see Supreme Court Decision 2019Da240629, Nov. 15, 2019). Therefore, in cases where an accident occurred due to a third party’s act causing damage to the insured as a result of both the subject matter and the property which is not an insurance subject matter, and the insurer has paid the insured with respect to the damage to the subject matter, the insurer shall separately determine the scope of the effect of subrogation by dividing the damage to the subject matter of insurance and the property which is not an insurance subject matter into the damages to a third party, and in such cases, whether there is any remaining damage to property which is not an

B. Examining the reasoning and record of the lower judgment, the following facts are revealed.

① As an insurance company, the Plaintiff entered into an insurance contract with Nonparty 1 and Nonparty 1 on the subject matter of the instant insurance.

② Defendant 2 requested the reinforcement of the roof of the building owned by Defendant 1 by Nonparty 2, who was the husband of Defendant 1, and the staff Nonparty 3 and Nonparty 4, who were the employees of Defendant 1, posted Nonparty 3 and Nonparty 4, caused the fire of this case as the flame was removed from combustible substances, such as spunching around it, and the fire of this case occurred. The fire of this case was moved to Nonparty 1, who was in the vicinity, and the fire of this case was destroyed by Nonparty 1’s insurance object and the goods inside the temporary warehouse, not the subject matter of the insurance of this case, and the non-party 1 suffered loss of business suspension.

③ Nonparty 1’s damages on the subject matter of the instant insurance due to the instant fire amounting to KRW 189,251,564, and the aggregate amount of the value of goods within the destroyed temporary warehouse and the loss of business suspension is KRW 127,209,39.

④ Nonparty 1 received full amount of KRW 189,251,564 from the Plaintiff as insurance money for the damage incurred to the subject matter of the instant insurance.

C. Examining the above facts in accordance with the legal principles as seen earlier, the following is determined.

With respect to the damages incurred by Nonparty 1 as to the subject matter of insurance in this case, Nonparty 1, who was paid KRW 189,251,564, which was the full amount thereof, from the Plaintiff, cannot seek payment of the damages from the Defendants, and the Plaintiff, who acquired the damage claim from the insurer subrogation, may seek payment of the damages for the subject matter of insurance from the Defendants. However, with respect to the damages incurred by Nonparty 1 as to the property, etc., which is not the subject matter of insurance in this case, the subrogation by the insurer under Article 682 of the Commercial Act, which is premised on legal relations arising from the insurance contract, cannot be applied. Therefore, the Plaintiff cannot seek payment of the damages from the Defendants, and Nonparty

Therefore, the defendants are jointly obligated to pay to the plaintiff 37,850,312 won (i.e., 189,251,564 won x 20% x less than the cost for the convenience of calculation; hereinafter the same shall apply) and damages for delay among the damages related to the subject matter of this case. The defendants are obligated to pay to the non-party 1 the damages related to the property, etc. which is not the subject matter of this case.

D. Nevertheless, without distinguishing whether damage was caused by the subject matter of insurance, the lower court rejected all of the Plaintiff’s claims against the Defendants seeking compensation for damage to the subject matter of insurance solely on the ground that the amount of damage remaining without being compensated as insurance money out of the total amount of damage of Nonparty 1 (i.e., the amount of liability for damage to the subject matter of insurance in this case + the amount of liability for damage to property which is not the subject matter of insurance in this case + the amount of liability for damage to property which is not the subject matter of insurance in this case) exceeds the Defendants’ total amount of liability for damage against Nonparty 1 (i.e., the amount of liability for damage to the subject matter of insurance in this case). In so determining, the lower court erred by misapprehending the legal doctrine on subrogation of the insurer, thereby adversely affecting the conclusion of the judgment, and the Plaintiff’s ground of appeal

3. Conclusion

Therefore, the part of the judgment of the court below which is subject to the judgment of the court of final appeal of this case concerning the claim for damages against the defendants by the non-party 1, 37,850,312 of the exercise of the insurer's subrogation right, and damages for delay thereof, shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination.

Justices Min You-sook (Presiding Justice)