Whether an insurer who has paid insurance money for the loss caused by an accident that occurred while driving an insured motor vehicle can file a claim for damages against a driver in subrogation of an insured worker pursuant to Article 682 of the Commercial Act (affirmative)

Under the general terms and conditions of automobile comprehensive insurance, an insurance company is responsible for compensating the insured for damage caused by an accident of an insured motor vehicle which occurred during the possession, use, and management of the insured motor vehicle. The scope of the insured is ① “registered insured” as indicated in the insurance policy, ② the relatives of the named insured, etc., ③ the insured, ④ the insured who operated with the consent of the named insured, ④ the insured’s “insured insured” such as the named insured, ④ the insured’s users, ⑤ the “insured in use” who driven the insured motor vehicle for the insured as stipulated in the above ① or ④. Here, the term “insured in operation” refers to the person employed by the named insured in the name of the insured, etc., but even if it is not employed for the purpose of driving, if the insured is driven with specific and individual consent from the named insured, and even if it is obviously against the intent of the named insured, the insurer can not be considered as the insured driver in subrogation of the insured, and therefore, can not be considered as the insured in accordance with Article 68(2) of the Commercial Act.

Article 682 of the Commercial Act

Supreme Court Decision 2000Da3331 Decided September 29, 2000 (Gong2000Ha, 2218) Supreme Court Decision 2003Da37686 Decided November 14, 2003

Dongbu Fire Marine Insurance Co., Ltd. (Law Firm Squa, Attorneys Kim Dong-ho et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Aion, Attorneys Park Jong-hwan et al., Counsel for the defendant-appellant)

Cheongju District Court Decision 2012Na2584 decided November 20, 2012

The judgment of the court below is reversed, and the case is remanded to Cheongju District Court Panel Division.

The grounds of appeal are examined.

1. Under the general terms and conditions of automobile comprehensive insurance, an insurance company is liable for compensating the insured for damage caused by an insured motor vehicle accident in the course of the possession, use, and management of the insured motor vehicle. The scope of the insured is as follows: ① “registered insured” indicated in the insurance policy, ② “relative insured” such as relatives of the named insured, ③ “insured with consent of the named insured”, ④ “insured with consent of the named insured”, ④ “insured with consent of the named insured”, ⑤ “insured with operator operating the insured” who operated the insured motor vehicle for the insured prescribed in the above ① through ④. The term “insured with driving” refers to a person employed in the name of the named insured, etc. (see, e.g., Supreme Court Decision 200Da3331, Sept. 29, 200). However, even if the insured is not an employee for driving duty, the insurer can be viewed as an insured motor vehicle with specific and individual consent from the named insured and thus, can not be viewed as an insured driver’s consent of the named motor vehicle in accordance with Article 2863 of the Commercial Act.

2. According to the judgment below and the evidence duly admitted by the court below, the vehicle rental contract prepared by the non-party, a non-party, on the lease of the automobile of this case from Karenkk Co., Ltd. (hereinafter "Karenk"), stated the phrase "I do not receive insurance benefits at the time when an accident occurred due to the lessee's driving by a third party or a person aged below age (hereinafter "the phrase of this case"). Nevertheless, the non-party had the defendant drive the automobile of this case and the defendant had the automobile of this case driven the automobile of this case while driving the automobile of this case, and the fact that the plaintiff, who entered into a comprehensive automobile insurance contract with Karenkkkkkkk's Co., Ltd., paid insurance proceeds to the victims of the accident of this case.

Examining the legal principles as seen earlier in light of the above facts, it appears to be reasonable to view the term “third party” in the instant phrase as meaning “persons other than the lessee himself/herself,” in light of the language and language thereof and transaction practices. In the event of an accident caused by such a third party’s driving, it would suffice to deem that the Plaintiff, who is the named insured, clearly expresses his/her intent not to drive the instant car. Therefore, even if the Defendant was driving the instant car on behalf of the Nonparty with the permission of the Nonparty who is the named insured, it would be clearly contrary to the intention of the named insured, and thus, the Defendant cannot be deemed as the insured, barring any special circumstances.

Nevertheless, the court below held otherwise that the third party of the phrase of this case referred to as "the third party who is unable to become the insured," and that the defendant's vehicle of this case was operated on behalf of the non-party with specific and individual consent of the non-party who is the consent insured, and on such premise, the plaintiff cannot claim compensation against the defendant who is the insured pursuant to the insurer subrogation doctrine under Article 682 of the Commercial Act, and maintained the conclusion of the first instance court that dismissed the plaintiff's claim of this case. The court below erred by misapprehending the legal principles as to the interpretation of the disposal document or the scope of the driver insured, which affected the conclusion of the judgment. The ground of appeal pointing this out is with merit.

3. It is so decided as per Disposition by the assent of all participating Justices on the bench, and the case is remanded to the court below for a new trial and determination.

Justices Kim Chang-suk (Presiding Justice)