In cases where an insurer has paid expenses to confirm the scope of the payment of insurance proceeds, whether the insurer can seek damages equivalent to the cost against the perpetrator by subrogation of the policyholder or the insured (negative)

Article 676(2) of the Commercial Act provides that "the cost for calculating the amount of damage shall be borne by the insurer." Thus, the cost that the insurer has spent to confirm the scope of payment of insurance proceeds is merely for the benefit of the insurer, and cannot be deemed as the loss suffered by the policyholder or the insured. Therefore, the insurer who has spent the cost cannot seek damages equivalent to the cost from the tortfeasor by subrogation of the policyholder or the insured.

Article 676 (2) of the Commercial Act

Gaco Co., Ltd and one other (Attorney Kim Dong-dong, Counsel for the plaintiff-appellant)

Busan Port Corporation (Law Firm Sejong, Attorneys Kim Hyun-hwan et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 2010Na3889 decided January 18, 2011

Of the part of the judgment below against the defendant, the part concerning the examination cost of the cause of accident 2,632,770 won, the adjustment cost of the appraisal of damages 1,70,000 won is reversed, and this part of the case is remanded to Busan High Court. The remaining appeals are dismissed.

We examine the grounds of appeal.

1. As to the grounds of appeal Nos. 1 to 4, and 6

According to the reasoning of the judgment below, the court below held that the defendant, who is responsible for the management and operation of the port of Busan, was liable for dealing with miscellaneous cargo in the Cheong School and its neighboring sea areas, etc., or mainly enters and departs from the ship to repair the ship, etc. on the ground of the circumstances of the judgment. Thus, although Cheong School and its neighboring sea areas have the duty of care to ensure safety so as not to cause safety accidents to the ship adjacent to Cheong School by detecting and removing any structures or obstacles, etc. that fall at the time of loading and unloading or loading of cargo on the Cheong School and its neighboring sea areas, the defendant is liable for compensation for the damage suffered by the plaintiff company due to the accident of this case as the person responsible for the management of the sea area of this case as the accident of this case.

In light of relevant legal principles and records, the above determination by the court below is just and acceptable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by exceeding the bounds of the principle of free evaluation of evidence, or by exceeding

2. Regarding ground of appeal No. 5

A. Article 676(2) of the Commercial Act provides that “The cost for calculating the amount of damage shall be borne by the insurer.” Thus, the cost that the insurer spent to confirm the scope of payment of insurance proceeds is merely for the benefit of the insurer, and cannot be deemed as the loss suffered by the policyholder or the insured. Therefore, the insurer who paid the cost cannot seek damages equivalent to the cost from the tortfeasor by subrogation of the policyholder or the insured.

B. According to the reasoning of the lower judgment, the lower court determined that the Plaintiff Union acquired a claim for damages equivalent to its cost against the Defendant in accordance with the legal doctrine of subrogation, on the ground that the instant accident occurred, and that the Plaintiff Union was a loss for which the Plaintiff Company should pay the Plaintiff Company due to the instant accident, and that the Plaintiff Union paid the said cost in accordance with the mutual aid agreement.

However, in light of the above legal principles, the expenses for the examination and settlement of accounts paid by the Plaintiff Union are not losses incurred by the Plaintiff Company due to the instant accident, but the Plaintiff Union, the insurer, and thus, the Plaintiff Union cannot seek payment from the Defendant on behalf of the Plaintiff Company.

Unlike this, the court below accepted the above part of the claim by the Plaintiff Union by misunderstanding the legal principles on subrogation between Article 676 (2) of the Commercial Act and the insurer.

3. Therefore, the part of the judgment of the court below against the defendant is reversed with respect to the examination cost of the cause of the accident 2,632,770 won, the adjustment cost of the appraisal of damages 1,70,000 won, and this part of the case is remanded to the court below for a new trial and determination. The remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)