Dongbu Fire and Marine Insurance Co., Ltd. (Law Firm Jeongse, Attorney Choi Jong-min, Counsel for defendant-appellant)

ELa District Damage Insurance Co., Ltd. (Law Firm Sejongyang, Attorneys Go-hee et al., Counsel for the defendant-appellant)

January 22, 2010

Seoul Central District Court Decision 2007Gadan242149 Decided October 7, 2009

1. The part against the defendant among the judgment of the court of first instance is revoked, and the plaintiff's claim corresponding to the above part is dismissed.

2. The plaintiff's incidental appeal is dismissed.

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

1. Purport of claim

The defendant shall pay 5% a year from April 24, 2007 to the date of final delivery of a copy of the complaint of this case, and 20% a year from the next day to the date of complete payment, to the jointly accused defendant Korea Highway Corporation, the Federation of the Korea Freight Trucking Services, and each plaintiff at the rate of 295,812,771 won.

2. Purport of appeal

The part against the defendant in the judgment of the court of first instance is revoked, and the plaintiff's claim corresponding to the above revocation is dismissed.

3. Purport of incidental appeal;

Of the judgment of the court of first instance, the part against the plaintiff corresponding to the amount ordered to pay below shall be revoked. The defendant shall pay to the plaintiff 59,162,54 won with 50% interest per annum from April 24, 2007 to October 7, 2009, and 20% interest per annum from the next day to the date of full payment.

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by comprehensively taking into account the whole purport of the pleadings in each entry in Gap evidence of Nos. 1 through 15, 18 through 22, 40, Eul evidence of No. 1, and Eul evidence of No. 2 through 5 (including each number):

(a) Occurrence of an accident;

(1) On October 3, 2006, Nonparty 1 driven a truck of 25 tons (vehicle number 1 omitted) (hereinafter “Defendant vehicle”) on October 3, 2006, and stopped three lanes of the three lanes of the west-do 3rd line (limited speed of 110km/h straight line) around the 279.8km at the west-do west-do west-do west-ro (limited speed of 110km/h straight line) around the west-do west-do west-si. Nonparty 1 stopped on the front side of the above vehicle (hereinafter “Defendant 1”) on the ground that Nonparty 2’s vehicle (vehicle number 2 omitted), which was driven on the front side of the road at the west-do west-do west-si, was not secured at the speed of 61 to 69 meters. Nonparty 1 stopped on the front side of the vehicle.

(2) At around 07:41 on the same day, Nonparty 3, following the Defendant’s vehicle, concealed the rear part of the Defendant’s vehicle, which was parked in two lanes as above, with the front part of Lone Star or the vehicle (vehicle number 3 omitted).

(3) At around 07:43 on the same day, Nonparty 7 concealed the rear part of Nonparty 6’s (vehicle No. 4 omitted) driving (vehicle No. 4 omitted) which was parked on the two-lane of the front line of the EFasita taxi on the same day.

(4) At around 07:44 on the same day, Nonparty 8: (vehicle No. 6 omitted) concealed the back portion of Nonparty 7’s (vehicle No. 5 omitted) EFasitasi, which was stopped due to the accident described in paragraph (3) of the said paragraph, and stopped Nonparty 6’s (vehicle No. 4 omitted) small vehicles (vehicle No. 4 omitted) and stopped.

(5) At around 07:45 on the same day, Nonparty 9 concealed Nonparty 8’s (vehicle No. 6 omitted) driver’s (vehicle No. 7 omitted) vehicle with X-celled vehicle, and concealed Nonparty 7’s (vehicle No. 5 omitted) EF or other taxi in the future due to the shock of the said small-sized vehicle, and re-entered Nonparty 6’s (vehicle No. 4 omitted) vehicle with Nonparty 6’s driver’s (vehicle No. 6 omitted) vehicle.

(6) Nonparty 1, who was stopped by Nonparty 8’s (vehicle number 6 omitted) driving Nonparty 8’s vehicle (vehicle number 6 omitted) which was parked due to the accident described in the above (5) with the back wheels of the Kaggractor, was stopped on the one-lane, and stopped on the one-lane one-lane after Nonparty 10’s launchings suffered from the first-lane of Nonparty 10.

(7) At around 07:46 on the same day, Nonparty 12 concealed the front part of the express bus (vehicle number 9 omitted) of Nonparty 11 driver (vehicle number 8 omitted) who stops due to the accident described in paragraph (6) above.

(8) At around 07:49 on the same day, Nonparty 13 observed the accident of the front line with the tank 10 omitted) and concealed the rear part of Nonparty 14’s (vehicle number 11 omitted) drive (vehicle number 11 omitted), which was parked on the three-lane, and due to the shock, the said tank 1 ton truck was pushed down and stopped on the side, and the said tank 1 ton truck stopped over three-lanes of the side.

(9) At around 07:49 on the same day, Nonparty 15 driven a truck of 25 tons (vehicle number 12 omitted) and neglected to perform the duty of front-time care, and concealed the back part of the (vehicle number 7 omitted) x-cell vehicle of Nonparty 9 (vehicle number 7 omitted) who stops due to the accident described in the above paragraph (5) as the truck, and due to the shock, Nonparty 15 predicted Nonparty 8’s (vehicle number 6 omitted), Nonparty 7’s (vehicle number 5 omitted), EF stations or other cab, Nonparty 6’s (vehicle number 4 omitted), Nonparty 3’s (vehicle number 3 omitted), and Nonparty 3’s (vehicle number 3 omitted).

(10) At around 07:53 on the same day, Nonparty 16 driven a car rolling stock (vehicle No. 13 omitted) and driven a two-lane of the said accident site (hereinafter “Plaintiff”) and stopped as above, Nonparty 13’s (vehicle No. 10 omitted) driving of the tank 13 driver’s (vehicle No. 10 omitted). Nonparty 16 concealed the back part of the Plaintiff’s left side of the tank 13 driver’s vehicle into the front part of the Plaintiff’s right side, and due to the shock, Nonparty 16 stopped the above tank 14 driver’s (vehicle No. 11 omitted) driving of Nonparty 14 driver’s (hereinafter “after the instant event”).

(11) During the process of the accident scene due to delay in the training of the accident scene due to the preceding accident and the rear event height, etc., the plaintiff vehicle and the non-party 13 driver's (vehicle number 10 omitted) tank 10 driver's (vehicle number 10 omitted) vehicle in the collision with the above paragraph (10) caused a fire to the wind that the engine and press part of the plaintiff vehicle protruding out due to the shock that occurred in the collision with the above tank string vehicle, and the fire occurred (hereinafter "the fire in this case"). The fire in this case destroyed 12 vehicles including the plaintiff vehicle, etc., and at the time of the accident described in the above paragraph (4), the driver non-party 16 and the non-party 8 driver of the plaintiff vehicle in this case and the non-party 4 and the non-party 5 of this vehicle died, and the non-party 4 and the non-party 5 of this case at the time of the accident described in the above paragraph (2).

B. Circumstances of the victims’ death

(1) As described in paragraph (1)(2) above, Non-Party 4 and Non-Party 5 were passengers aboard the road (vehicle No. 3 omitted) who were driven by Non-Party 3 as described in paragraph (1)(2) above and died without avoiding the instant fire that occurred after Non-Party 4 and Non-Party 5 died (vehicle No. 4 omitted) due to the shock of the accident described in paragraph (1)(1 ton of Non-Party 6 driving (vehicle No. 4 omitted) No. Naa III vehicle and Non-Party 14 driving (vehicle No. 11 omitted).

(2) The deceased Nonparty 8 died of Nonparty 9’s driving (vehicle No. 7 omitted) X-cella, resulting in the accident described in paragraph (5) above by the vehicle, and died of the accident due to the delay of the instant fire.

(c) Payment of insurance money;

On April 23, 2007, the Plaintiff was an insurer who entered into a comprehensive automobile transportation and automobile insurance contract with respect to the Plaintiff’s vehicle. On April 23, 2007, the Plaintiff paid a total of KRW 295,812,771, including KRW 77,39,650 to the deceased Nonparty 4’s heir, KRW 162,376,346 to the deceased Nonparty 5’s heir, and KRW 56,096,775 to the deceased Nonparty 8’s heir, and the Defendant is an insurer who entered into an insurance contract with the Defendant vehicle.

2. Judgment on the plaintiff's claim

A. The plaintiff's assertion

In the course of Nonparty 1’s proceeding with the above accident, Nonparty 1 caused the preceding accident in excess of speed and neglected the duty to take safety measures immediately thereafter, and neglected the Defendant’s vehicle on the road, thereby causing the second accident, and thereby neglecting the Defendant’s vehicle on the road. Nonparty 1’s negligence as above and Nonparty 1’s negligence and negligence of neglecting the duty to take the front-time care of Nonparty 16, 15, etc., died due to the collision of the accident and the fire in this case, as seen above, due to the collision of the accident and the fire in this case, Nonparty 4,5, and 8. As such, the Defendant is liable for compensation for damages paid to the victims as the insurer of the Defendant vehicle driven by Nonparty 1.

B. Determination

In order for a joint tort to be established, several acts must meet the requirements for a tort (such as intention, negligence, causation, etc.) independently, and there must be objective commonality, such as where several acts are close to time and place. Thus, if one of several acts does not constitute a tort independently or several acts are not in close vicinity to time and place due to the absence of intention or negligence, etc., and there is no objective commonness and there is no incidental relationship between each of the above acts, and it is nothing more than that of the two acts, each of the above acts does not constitute a joint tort, and each tortfeasor is liable only for damages which have a proximate causal relation with each of the acts.

As seen above, although Non-Party 1 did not properly secure the safety distance, caused the instant preceding accident to a place other than an expressway, and did not take necessary measures (Article 66 of the Road Traffic Act) such as moving the Defendant’s vehicle thereafter, and contributed to the occurrence of the instant preceding accident and the immediately preceding accident, Non-Party 4 and Non-Party 5 did not have any other reason to recognize that the instant accident occurred after Non-Party 1’s occurrence of the instant accident, as it was difficult for Non-Party 1 to take a look at the right side of the road after Non-Party 1’s failure to secure the safety distance. However, in light of the fact that Non-Party 4 and Non-Party 5’s occurrence of the instant accident, it was difficult to find that there was no other reason to recognize that the instant accident occurred after Non-Party 1’s occurrence of the instant accident, such as the instant accident due to Non-Party 4 and Non-Party 5’s occurrence of the instant accident, and there was no other reason to recognize that there was no other reason to recognize the previous accident after the instant accident.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and since the judgment of the court of first instance is unfair with some different conclusions, the defendant's appeal is accepted, and the part against the defendant is revoked, and the plaintiff's incidental appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judge Round (Presiding Judge) and at least a copy of a loan