Mez Fire Marine Insurance Co., Ltd. (Attorney Park Jae-sik, Counsel for the plaintiff-appellant)

Samsung Fire and Marine Insurance Co., Ltd. (Law Firm Sun Jae-in, Attorney Park Sang-soo, Counsel for defendant-

October 4, 2016

Seoul Central District Court Decision 2015Da104785 Decided June 28, 2016

1. Of the judgment of the court of first instance, the part against the plaintiff corresponding to the money ordered to pay below shall be revoked.

The defendant shall pay to the plaintiff 56,074,50 won with 55% interest per annum from December 25, 2014 to November 18, 2016, and 15% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. Of the total litigation costs, 20% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

4. The monetary payment portion under paragraph (1) may be provisionally executed.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 65,970,00 won with the interest of 5% per annum from December 25, 2014 to the delivery date of a duplicate of the complaint of this case, and 15% per annum from the next day to the day of complete payment (the plaintiff was merely a claim for indemnity based on a joint tort in the first instance court, but added a claim for indemnity based on a double insurance in the first instance court).

1. Basic facts

A. The Plaintiff is an insurer who entered into an insurance contract with the Dong-dong Electric Power Co., Ltd. (hereinafter “Dong-dong Electric Power Co., Ltd.”) to guarantee workers’ disaster liability, employer liability, etc. (hereinafter “instant compensation liability insurance”). The Defendant is the insurer who entered into an automobile accident insurance contract with the Mine Construction Co., Ltd. (hereinafter “Gwanm Name Construction Co., Ltd.”) and the Defendant with respect to the cargo vehicles (vehicle number omitted) owned by the said company (hereinafter “Korea Automobile Insurance”).

B. When the Seongdong-gu Seoul Electric Power Co., Ltd. was awarded a contract with the Korea Electric Power Corporation for the off-line off-line off-line off off-line off-line off-line off-line off-line off-line off-line off-line off-line off-line off-line off-site-based off-site-based off-line-based off-site-based off-site-based off-site-based on August 27, 2012, Nonparty 2, an employee of the East-dong Electric Power Co., Ltd., was operating equipment at the back-line of the working vehicle installed at the above site around 14:0 on August 27, 2012 (hereinafter “instant accident”). Nonparty 1, an employee of the East-dong North Korean Electric Power at the time, was driving a sea-line-based vehicle and stopped and stopped on the back of Nonparty 2 by negligence without properly manipulating the brid cock in the course of stopping and leaving off the off-line-line off-line off-line off-line.

C. The Plaintiff deemed Nonparty 2’s negligence as 10% from the total damages of Nonparty 2, and offsets negligence, and calculated the amount of non-party 2’s temporary disability compensation benefits, disability benefits, and medical care benefits paid by the Korea Workers’ Compensation and Welfare Service after deducting the amount of compensation for losses remaining after deducting the amount of compensation from each corresponding part, as KRW 66,038,298, and paid KRW 65,970,000 as agreed damages to Nonparty 2 on December 24, 2014.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 5, Eul evidence Nos. 4 and 5, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

1) Claim for indemnity due to joint tort

The accident of this case occurred due to the breach of the duty of care in the general field safety management of the East-do Northern Power, and the non-party 1 (the non-party 1) of the Maritime Vehicle driver's driver's driver's driver's driver's driver's driver's driver's driver's driver's driver's driver's driver's negligence while stopping the Maritime Vehicle on a slope, and the ratio of negligence is 10:90. Thus, it is reasonable to view that the ratio of negligence is 10:0. The defendant who is the insurer of the Maritime Vehicle's insurer is liable to pay the plaintiff's compensation for the total

2) Claim for indemnity covered by double insurance

The instant liability insurance and the instant automobile insurance between the Defendant and the Dongbuk Power and the Plaintiff constitute duplicate insurance in which the insured and the insured interest overlap, and thus, the Defendant is obligated to pay the Plaintiff KRW 3,298,500 as indemnity amount based on duplicate insurance and delay damages.

B. Defendant’s assertion

1) In order to assume the responsibility of overall instruction, management, and supervision over the construction section in which the instant accident occurred, the instant accident occurred due to negligence committed by the said company, and in particular, Nonparty 1, the driver of the Maritime Vehicle, was an employee of the Maritime Vehicle, and the said accident resulted from an operational negligence, not a defect of the Maritime Vehicle, and thus, luminous construction, which is only the lessor of the Maritime Vehicle, is not liable for joint tort in respect of the instant accident.

2) Even if the Defendant is liable for double insurance, the Defendant’s lost income of Nonparty 2 was calculated excessively among the damages paid by the Plaintiff.

3. Determination

(a) Claim for indemnity due to a joint tort;

In full view of the above evidence, the accident in this case occurred concurrently due to the negligence due to the non-party 2's non-party 2's negligence in the duty of care to supervise the work of the Dongbuk Electric Power's employer, and the negligence of the non-party 1 (the non-party 1) who is the driver of the household-employed vehicle. In light of the circumstances revealed in the argument in this case, such as the background of the accident and the status of the non-party 1 (the non-party 1) and the process of the accident, it is reasonable to set the ratio of the responsibility between the Dongbuk Electric Power and the non-party

Therefore, the part of the amount of damages paid by Nonparty 2 and the Plaintiff (the Defendant’s assertion disputing the above damages did not accept the Defendant’s assertion that the lost earnings of Nonparty 2 were calculated excessively among the damages) is KRW 19,791,00 (=65,970,000 x 30%). The Plaintiff, who is the insurer of the Northern Power, obtained joint immunity by paying KRW 65,970,000 exceeding the above share of damages. As such, the Defendant, who is the insurer of the driver of the Category 2 and the Plaintiff, is obligated to pay the Plaintiff the amount of damages to the Plaintiff (65,970,000 won - 19,791,000 won - 19,791,000 won) and damages for delay calculated from the day following the judgment from December 25, 2014 to the date of payment of the Plaintiff’s insurance proceeds, to 15% of the annual amount of damages for delay under the Civil Act.

(b) Claim for indemnity covered by double insurance; and

1) If two liability insurance contracts do not share both the subject matter, i.e., the insured interest and the content and scope of the insurance accident, but overlap in considerable parts, and if the accident occurred related to the overlapping insured interest, it constitutes an insurance accident related to the overlapping insured interest, such multiple liability insurance contracts constitute duplicate insurance under Article 725-2 of the Commercial Act to the extent that the insured, insured interest, and the insurance accident and the insurance period overlap (see, e.g., Supreme Court Decision 2004Da57687, Apr. 29, 2005). In such cases, each insurer shall be jointly and severally liable for compensation according to the ratio of each insurance amount (see Articles 752-2 and 672(1) of the Commercial Act).

Meanwhile, the right to indemnity against the other insurers in a double insurance relationship with the right to indemnity of the joint tortfeasor as seen earlier may be exercised first and simultaneously as long as the requirements for establishing each right to indemnity are met. However, in a case where the right to indemnity are satisfied from one party, the scope of other right to indemnity is limited to the portion of the share of the obligor for indemnity by other right to indemnity, excluding the portion to be satisfied as above (see Supreme Court Decision 2009Da42819, Dec. 24, 2009, etc.).

2) In order to constitute double insurance, two or more insurance coverage periods, insurable interests, insurance accidents, and the insured should be the same as that of the two or more insurance contracts. In other words, the accident of this case occurred during the overlapping insurance period of each insurance contract, namely, the following circumstances acknowledged by the evidence mentioned above, and the benefit of liability insurance in this case is "loss borne by the insured due to occupational accidents occurred to the employee of the insured." The insured benefit in automobile insurance is "damage incurred by the insured due to the accident of the insured automobile occurred during the possession, use, and management of the insured automobile", and each of the above insurance contracts aims to compensate for the loss suffered by the insured by the third party, including "worker," due to the accident during the insurance period, the benefit of each of the insurance contracts in this case is common to a certain part. Since the accident of this case is an occupational accident and an automobile accident, the accident of this case constitutes all of the insurance contracts in this case, the insurer's right to indemnity in each of the insurance contracts in this case is also the same as the insurer's insurance contracts in this case.

3) According to the purport of the argument in Gap evidence Nos. 12 and Eul evidence Nos. 15, each of the terms and conditions of each of the insurance contracts of this case acknowledged that in the case of duplicate insurance, each insurer is obliged to pay insurance proceeds calculated by the formula of "amount of losses (amount of compensation liability) 】 (amount of compensation liability under each contract ± aggregate of amount of compensation liability calculated under each insurance contract with no other insurance contracts)". The scope of compensation liability is identical to that of the victim's damages exceeding the amount of accident compensation paid under the Industrial Accident Compensation Insurance Act. Thus, the defendant is obliged to pay to the plaintiff the indemnity amount of 65,970,000 won which is calculated by deducting the amount of indemnity amount of 46,179,000 won from the due date of the plaintiff's indemnity amount of 65,791,000 won, 19,500 won (amount of compensation liability under each insurance contract ± 19,791,000 won) ± 2050,705 won per annum 160.

C. Sub-decision

Therefore, the Defendant is obliged to pay to the Plaintiff damages for delay calculated at the rate of 56,074,50 won per annum under the Civil Act from December 25, 2014, which is the day following the date of payment of the Plaintiff’s insurance proceeds, to November 18, 2016, and 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, from the following day to the day of full payment (i.e., indemnity amounting to 46,179,000 won by joint tort + indemnity amounting to 9,895,500 won by double insurance).

4. Conclusion

Therefore, the plaintiff's claim shall be accepted within the above recognition scope, and the remaining claims shall be dismissed without any justifiable reason. Since the judgment of the court of first instance is unfair with different conclusions, the part against the plaintiff falling under the part against which the above payment was ordered among the judgment of the court of first instance shall be revoked, and the payment of the above money shall be ordered to the defendant, and the remaining appeal of the plaintiff shall be dismissed as it is without merit.

Judge Yellow-ho (Presiding Judge)