[1] The scope of the right of the insurer to exercise by subrogation when the insured event occurred due to competition between the insured and the third party's negligence

[2] The case holding that the judgment below erred by misapprehending legal principles, in a case where: (a) Company A, which concluded a fire insurance contract with Party A for facilities and fixtures in the store; (b) Company C, which concluded a fire insurance contract with Party A for facilities and fixtures in the store; and (c) Company C, which concluded a gas accident liability insurance contract with Party B, paid the insurance money to the victims other than Party A; and (b) Company C claimed reimbursement against Party C, the fire insurance contract concluded by Party A for both facilities and fixtures shall be deemed as one insurance contract covering both the facilities and fixtures; and (c) Company C may subrogate the insurer only to the extent of the difference between the amount equivalent to the ratio of negligence between Party B and the total damages and the remainder after deducting the insurance money paid by Party A from the total damages

[1] Article 682 of the Commercial Act provides, “Where damage has occurred due to a third party’s act, an insurer who has paid the insured amount shall obtain the rights of the policyholder or the insured against the third party within the extent of the amount paid. However, when the insurer has paid part of the insured amount to be compensated, it may exercise its rights to the extent that does not infringe the rights of the insured.” Considering that the right of subrogation in such non-life insurance is recognized as a policy to prevent double acquisition of the insured, the scope of the rights of the insured, which can be subrogated by the insurer in the case of so-called “part insurance,” should follow if there are explicit provisions on the insurance clause, etc. However, insofar as the insurer takes advantage of the general principles on interpretation of the terms and conditions, it is reasonable to view that the scope of the rights of the insured is limited to the extent that does not infringe the rights of the insured.” Therefore, if the terms and conditions of the non-life insurance contract provides that the insurer is still entitled to claim damages against the third party within the scope of the insured’s right of subrogation which does not infringe the rights of the insured.”

[2] In a case where Gap's negligence and Eul's negligence supplied liquefied petroleum gas to Eul's above store caused a fire, and Eul's insurance company which concluded a fire insurance contract for facilities and household fixtures in Gap's store with different insurance amounts, paid insurance money to Gap, and Byung company claimed indemnity against Byung company after Eul company paid insurance money to victims other than Eul, the case holding that although the fire insurance contract separates the insurable value of facilities and household fixtures from the fire insurance contract, the above fire insurance contract was concluded as a single insurance contract covering both facilities and household fixtures, considering the fact that although the fire insurance contract separates the insurable value from the fire insurance contract, and the contents of the insurance accident are identical and one insurance policy were issued, the above fire insurance contract is deemed to have been concluded as one insurance contract covering all facilities and household fixtures, and Eul still has its own right against Eul or Jung company as to the remainder after deducting the insurance money paid by Byung company from the total amount of damages caused by the above accident, which is to the extent not infringing Gap's rights, the insurer can be viewed as an insurance company's subrogation among the total damages amount of the above part of the fire insurance contract.

[1] Article 682 of the Commercial Act, Article 5 (2) of the Regulation of Standardized Contracts Act / [2] Article 682 of the Commercial Act, Article 5 (2) of the Regulation of Standardized Contracts Act

Samsung Fire and Marine Insurance Co., Ltd. (Law Firm Gyeongsung, Attorneys Jeon Sung-jin et al., Counsel for the plaintiff-appellant)

Hansung Damage Insurance Co., Ltd. (Attorneys Park Sung-won et al., Counsel for the plaintiff-appellant)

Seoul Central District Court Decision 2011Na40150 decided November 1, 2011

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to the Panel Division of the Seoul Central District Court.

The grounds of appeal are examined.

1. As to the assertion in the grounds of appeal as to the scope of subrogation by the insurer

A. Article 682 of the Commercial Act provides, “The insurer who has paid the insured amount if the damage was caused by a third party’s act shall obtain the rights of the policyholder or the insured against the third party within the limits of the amount paid. However, if the insurer has paid a part of the insured amount to be compensated, the insurer may exercise its rights to the extent that does not infringe the rights of the insured.” In light of the fact that the insurer’s right of subrogation in such non-life insurance is recognized as a policy to prevent double acquisition of the insured, the scope of the rights of the insured, which the insurer may subrogate, should comply with in the case of the so-called “part insurance,” if there are explicit provisions on the insurance clause, etc., but if it is interpreted favorable to the customer in accordance with the general principles on the interpretation of the terms and conditions, it is reasonable to view that the scope of the rights of the insured is limited to the extent that it does not infringe

Therefore, in the terms and conditions of the damage insurance contract, if the insurer has paid the insurance money, the insurer shall obtain the right to claim damages against the third party within the limit of the insurance money paid, and if the amount compensated by the insurer is part of the damage suffered by the insured, the insurer shall acquire the right to the third party to the extent that it does not infringe on the insured’s right, the scope of the right which the insurer may exercise by subrogation is limited in accordance with the provisions of the contract. Therefore, in a case where the insured event overlaps with the third party’s negligence, the scope of the right which the insurer may exercise by subrogation is limited in accordance with the provisions of the contract. Therefore, in a case where the insured event conflicts between the insured and the third party’s negligence, the amount calculated by deducting the insurance money paid by the insurer from the total amount of the damage suffered by

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

(1) On August 8, 2006, the instant accident occurred by the negligence of Nonparty 1, who operated the instant store, and Nonparty 2, etc. who supplied liquefied petroleum gas to the instant store (hereinafter “○○ Gas”). In the instant accident, Nonparty 1 suffered losses due to the destruction of a part of the inside of the instant store and the destruction of the house, and Nonparty 3, a happy Nonparty 3, who was in the vicinity of the instant store, suffered damages, such as the divers of the instant store, and damaged the house, vehicles, etc. inside other adjacent stores.

(2) Before the instant accident, the Plaintiff entered into a fire insurance contract with Nonparty 1 with respect to the facilities and fixtures in the instant store with the insurance amount of KRW 100 million and KRW 3 million, respectively. The amount of damages incurred by the said accident is calculated as KRW 82,653,260, and KRW 31,934,332, respectively. By August 3, 2007, the Plaintiff paid KRW 82,653,260, and KRW 3 million with the insurance amount for the household fixtures. Article 23(1) of the Terms and Conditions of the Fire Insurance Contract provides that “When the company has paid insurance money, the company acquires the right to claim damages that the contractor or the insured has against the third party within the insurance amount paid. However, if the amount of damages suffered by the insured is part of the loss, to the extent that the rights of the insured are not infringed.”

(3) Before the instant accident occurred, the Defendant concluded a contract for liability insurance for gas accidents with ○○ Gas, etc., until October 2, 2007, paid all the amount of insurance money equivalent to each other except Nonparty 1, among the victims of the instant accident.

(4) In the appellate court of the lawsuit claiming reimbursement against Nonparty 1 (hereinafter “related lawsuit”), KRW 567,30,640 of the above insurance money paid by the Defendant was recognized as reasonable amount of damages, and KRW 226,922,656, which is equivalent to KRW 40% of the above insurance money paid by the Defendant, became the portion of Nonparty 1’s apportionment. Meanwhile, the damages of Nonparty 1 caused by the instant accident are recognized as KRW 130,008,541, total amount of KRW 130,005,124, which is equivalent to KRW 60% of the negligence ratio of ○○ Gas, among which the damages of Nonparty 1 were recognized as KRW 130,00,05,124, which is equivalent to KRW 60,000 among them, the Defendant is liable for compensation to Nonparty 1. After all, Nonparty 1 was decided to pay the Defendant the above KRW 2226,922,656 deducting KRW 78,05,124,29.

C. Examining the above facts in light of the legal principles as seen earlier, inasmuch as Article 23(1) of the Terms and Conditions of the Fire Insurance Contract provides that “ insofar as the insurer may subrogate a third party with respect to the remainder after deducting the insurance money received from the Plaintiff from the total amount of damages caused by the instant accident, to the extent that it does not infringe on the insured’s rights,” the non-party 1 still holds his/her right to the third party (○○ Gas or the Defendant) with respect to the remainder after deducting the insurance money received from the Plaintiff from the total amount of damages caused by the instant accident, and the Plaintiff is able to subrogate the insurer only to the extent that it does not infringe upon the rights of the non-party 1, namely, to the extent that the difference between the amount

However, in this case, the part of the fire insurance contract and the part of the house fixtures as to the above fire insurance can be seen as a single insurance or separate insurance, but the scope of the plaintiff's subrogation may vary depending on the records, i.e., the fire insurance contract separates the facility and the house fixtures from the fire insurance contract, i.e., several circumstances revealed by the records that the insurable value is calculated separately, but the content of the insurance accident is the same, and one insurance policy is issued, and in relation to subrogation by the insurer, the above contract only contains the above provisions of Article 23 (1) and does not have any provision as to whether the house fixtures part of the facility and the house fixtures part should be treated as a separate insurance contract. In light of the above, the above insurance contract was concluded as a single insurance contract covering

Therefore, if Nonparty 1’s total amount of damages incurred due to the instant accident is deemed to be KRW 114,587,592 (facility damage 82,653,260 + 31,934,332) as the Plaintiff asserts, the scope of the Plaintiff’s right of subrogation can only be the amount of damages, which is the difference between the amount equivalent to the rate of fault of ○○ Gas out of the total amount of damages and the amount calculated by deducting the insurance proceeds received by Nonparty 1 from the total amount of damages, 39,818,223 [114,587,592 】 60% - 85,653,260].

D. Nevertheless, the court below held that the part of the fire insurance contract and the part of the house fixtures on the above fire insurance are separate insurance, and thus, the plaintiff can subrogate the insurer among the insurance proceeds paid to the facilities within the scope that can be subrogated by the insurer, 49,591,956 won (82,653,260 won x 60%). Thus, the court below erred by misapprehending the legal principles on the subrogation of the insurer or the interpretation of the insurance terms and conditions, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

2. As to the allegation in the grounds of appeal on the debt acceptance, which is the ground for interrupting extinctive prescription

Approval as a ground for interruption of extinctive prescription is established by indicating that an obligor, who is a party to the benefit of prescription, is aware of the existence of a right to the obligor or his/her agent, who is a party to the benefit of prescription. In such cases, the method of indication does not require any special form, and it is sufficient if the indication of implied approval is carried out by a method that allows other parties to conceal the obligor to recognize the existence and amount of the obligation on the premise that the obligor is aware of the existence and amount of the obligation (see Supreme Court Decision 2009Da99105, Apr. 29, 2010, etc.).

According to the reasoning of the judgment below, the court below found, based on its adopted evidence, that the defendant sent to the plaintiff on January 21, 2009 a document stating that "the defendant would proceed with indemnity according to the result of the relevant lawsuit, and the defendant shall pay 59,957,282 won to the plaintiff as compensation for damages against the non-party 1 in accordance with the judgment of the court of first instance related lawsuit, but the non-party 1's compensation amount was offset against the non-party 1, and eventually, the defendant would not be paid as compensation for damages against the non-party 1, and reached the plaintiff around that time. The court below determined that the document as of January 21, 2009, recognized the existence and amount of the damage liability against the non-party 1 to the plaintiff, but it was reasonable to deem it as the approval of the obligation to suspend the completion of prescription because the defendant'

In light of the above legal principles and records, the above judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to the recognition of obligation, as otherwise alleged in the ground of appeal

3. Conclusion

Therefore, without examining the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)