Samsung Fire and Marine Insurance Co., Ltd. (Attorney Hong-soo, Counsel for defendant-appellant)

Defendant 1 and 3 others (Law Firm Dongsung et al., Counsel for the defendant-appellant)

May 28, 2015

1. Defendants 1, 16,169,641 won jointly paid to the Plaintiff and 5% per annum from March 29, 2014 to June 25, 2015, and 20% per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims against the defendant 1, the defendant lot damage insurance company, and the defendant 3 and the plaintiff's claims against the defendant lot damage insurance company are all dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiff, Defendant 1, and Defendant 3 as well as 1/3 of the part arising between Defendant 3 is assessed against the Plaintiff, and the remainder is assessed against the Plaintiff, and the part arising between the Plaintiff and Defendant Music Insurance Co., Ltd.

4. Paragraph 1 can be provisionally executed.

The Defendants jointly and severally pay to the Plaintiff 172,217,400 won with 5% interest per annum from March 29, 2014 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of full payment.

1. Facts of recognition;

A. On September 15, 2011, the Plaintiff entered into a comprehensive motor vehicle insurance contract with Nonparty 1 and with respect to a motor vehicle owned by Nonparty 1 (motor vehicle number 3 omitted), with respect to the insured (motor vehicle number 3 omitted), from September 15, 2011 to September 15, 2012. The details of the insurance contract include a non-life insurance special agreement.

나. 피고 1은 2012. 7. 19. 13:27경 피고 3을 뒷좌석에 태운 채 피고 3 소유의 (차량번호 1 생략) 그랜저 차량(이하 ‘이 사건 가해차량’이라 한다)을 운전하다가 서울 성북구 돈암동 48에 있는 성북성심병원 앞 편도 2차로 도로 중 2차로에서 이 사건 가해차량 시동을 켠 상태로 일시정지시킨 후 위 병원에서 진료를 받기 위하여 피고 3으로 하여금 하차하도록 하였는데, 피고 3이 차량 뒷문을 여는 순간 소외 1이 운전하던 오토바이(차량번호 2 생략)가 이 사건 가해차량의 우측과 인도 사이의 좁은 공간을 자나가다가 위 차량 뒷문과 충돌하여 넘어지면서 소외 1이 지주막하출혈, 뇌 손상으로 인한 강직성 사지마비 및 인지기능 저하 등 중상해를 입는 사고(이하 ‘이 사건 사고’라 한다)가 발생하였다.

C. Meanwhile, as to the vehicles owned by Nonparty 2 (vehicle No. 4 omitted), Defendant Bar Association Co., Ltd. (hereinafter “Defendant Bar Association”) entered into an automobile insurance contract with Nonparty 2, the husband of Defendant 1, which includes “other automobile driving security terms (hereinafter “the special terms”)”. Of the instant special terms and conditions, Article 1(1)(i)(the contents of the instant special terms and conditions provides that “When the insured suffers loss due to any personal or personal accident that occurred while driving another motor vehicle (excluding parking or stopping; hereinafter the same shall apply) or personal accident or personal accident, or the insured suffers loss, it shall be deemed that the other motor vehicle driven by the insured is an ordinary terms and conditions [10] (excluding personal compensation), / [11] self-physical accidents and the special terms and conditions of injury, and shall be deemed as an insured motor vehicle and shall be subject to the name of the insured’s spouse as stipulated in ordinary terms and conditions.”

D. Defendant M&A Co., Ltd. (hereinafter “Defendant M&A”) is the insurer of the automobile insurance contract on the instant L&A owned by Defendant 3.

E. The Plaintiff paid KRW 292,217,40 in total as damages between August 28, 2012 and March 27, 2014 to Nonparty 1, in accordance with a special agreement on indemnity with respect to a non-life-free motor vehicle stipulated in the said comprehensive motor vehicle insurance with Nonparty 1, and returned KRW 120,000,000 from the Defendant’s malicious damage insurance.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Gap evidence 5, Gap evidence 6-21 through 29, Gap evidence 7, 11, Eul evidence 1, and the purport of the whole pleadings and arguments

2. Determination as to the claim against Defendant 1, Defendant lot damage insurance, or Defendant 3

(a) Occurrence of liability for damages;

1) According to the above facts, the accident in this case occurred due to negligence in which Defendant 1 (the spouse of the named insured), who is the driver of the vehicle in this case, temporarily stops, and Defendant 3, who is the driver of the vehicle in this case, was placed at the edge near India as far as possible, and due to negligence in spite of the duty of care to confirm whether the vehicle is being driven at the rear through the rear police, and whether the vehicle in this case was driven at the right edge of the two-lanes, and even though there was a duty of care to ensure that the passenger was driven at the rear, and the accident in this case occurred due to the personal accident that occurred while driving another vehicle (the marine accident in this case), and thus, the accident in this case is compensated pursuant to the special contract in this case. Accordingly, Defendant 1, who is the driver of the vehicle in this case, is a tort under Article 750 of the Civil Act, and Defendant 3 is liable as the operator of the vehicle in this case as provided in Article 3 of the Automobile Accident Compensation Act, as the insurer under the special contract in this case.

2) Meanwhile, according to the above facts of recognition, Nonparty 1 was negligent in driving the instant two-wheeled vehicle without sufficiently examining whether there is any person driving the instant two-wheeled vehicle by passing through a narrow lane between the sea-going vehicle and India, and such negligence was caused by the occurrence and expansion of the damage caused by the instant accident. Thus, in calculating the amount of damages to be compensated by the said Defendants, the above Defendants’ liability for the instant accident is limited to 65% of the amount of damages in consideration of various circumstances.

B. The plaintiff's subrogation of damage claim

1) Where there is a person liable to compensate for any injury caused by a traffic accident by subrogation of the insured, the insurer is an non-life insurance with the nature as an accident insurance as well as the nature as an accident insurance, and where there is an agreement between the parties under the provisions of Article 682(1) of the Commercial Act or the provisions of the proviso of Article 729 of the Commercial Act, the insurer may exercise vicariously the insurer’s right to compensate for the injury to the insured to the extent that it does not prejudice the insured’s rights (see Supreme Court Decision 9Da50699 delivered on February 11, 200). In this case, in order to recognize subrogation of the insurer against a third party, the insurer is liable for paying the insured amount (see Supreme Court Decision 2009Da48602 delivered on October 15, 2009), and thus, the insurer shall be limited to the amount determined within the limit of the insured’s liability to compensate for the injury under the special agreement to the insured pursuant to the extent of the insured’s liability to compensate for damages under the special agreement.

2) With respect to the instant case, the Plaintiff, the insurer, paid the insurance money to Nonparty 1 within the scope of the special agreement on the coverage of the injury covered by the automobile accident under the comprehensive insurance with Nonparty 1, the insured, as seen earlier. As can be seen earlier, the Plaintiff is jointly liable for the damages incurred by the instant accident to Nonparty 1. Therefore, pursuant to Article 682(1) of the Commercial Act or the proviso of Article 729 of the Commercial Act, the Plaintiff may exercise the right to claim damages against Nonparty 1 as to the amount of the insurance money paid to Nonparty 1 within the scope of the right to claim damages against the said Defendants, the obligor. Meanwhile, it is reasonable to deduct Nonparty 1’s compensation amount from the amount of damages to Nonparty 1. The examination below as to the scope of the right to claim damages against the said Defendants is reasonable.

C. The scope of Defendant 1, Defendant 1, and Defendant 3’s liability for damages against Nonparty 1

In addition to the following separate statements, it shall be as shown in the attached Table of Calculation of Compensation for Damages (in accordance with the Hofman type Calculation Act that deducts interim interest at the rate of 5/12 per month as simple interest, the current price at the time of the accident of this case shall be calculated, and the calculation shall be less than a month for the convenience of calculation, and the amount below

(i) lost earnings;

A) Personal information: As stated in the “basic matters” column of the attached amount of damages calculation sheet.

(B)income and operating period;

Urban daily wage of ordinary workers, and the number of working days shall be until the 22th day of each month and 60 years of age;

(Application of KRW 75,608 per day, which is an urban daily wage during the first half-year period from July 19, 2012 to June 19, 2013, as sought by the Plaintiff, from July 19, 2012 to June 19, 2013, and application of KRW 81,443 per day, which is an urban daily wage during the first half-year period from the next day to November 24, 2015, as sought by the Plaintiff, from the next day to the end date of operation)

(c)the ratio of neutism and labor efficiency;

To the maximum working age up to the maximum working age, including the period of hospitalization (from July 19, 2012 to June 19, 2013), 100% of the labor capacity loss rate of 100% shall be applied pursuant to two parts of the Mabro disability assessment table, brain, and number nine-B-4.

D) Calculation: The “actual income” column of the attached amount of damages calculation sheet is KRW 64,782,015, as stated in the “actual income” column.

2) The king medical expenses: The king medical expenses are KRW 98,516,400, such as the attached table of calculation of damages.

3) Future treatment costs: Nonparty 1 needs to pay KRW 117,95,550 for future treatment costs and KRW 5,000 for future sex treatment costs, and calculated the current price on May 29, 2015, which is the day following the date of closing argument for calculation in the convenience of calculation, as of May 29, 2015, it is necessary to calculate the current price as of the time of the instant accident (=107,731,802 for future treatment costs + KRW 103,352 for future treatment costs + KRW 4,379,500 for future sex treatment costs).

4) Fruits offsetting

A) Non-party 1’s ratio of liability: 35% [see the above paragraph 2-A-2]

B) Calculation: 176,169,641 won [=271,030,217 won + (i.e., lost income of KRW 64,782,015 + 98,516,400 + future treatment cost of KRW 107,731,802) x 0.65];

5) Consolation money

A) Reasons for consideration: The particulars of the instant accident, the age and degree of the Nonparty 1’s injury and the injury and the degree thereof, and all other circumstances revealed in the pleadings of the instant case.

(b) Approved amount: 60,000,000 won;

[Ground of recognition] Facts without dispute, entry of Gap evidence 5 and 8, rule of experience, significant facts in this court, purport of the whole pleadings

D. Determination on the defenses of Defendant Barun Loss Insurance

1) Since the instant accident was an accident that occurred during the stopping of the instant truck, it constitutes the grounds for exemption under Article 1-1(1) of the instant Special Terms and Conditions. At the time of the instant accident, whether the instant Maritime Vehicle was in the “stopping” as stipulated in Article 1-1(1) of the instant Special Terms and Conditions shall be examined.

2) Comprehensively taking account of the overall purport of the arguments and arguments, Defendant 1’s 6-4 through 11, 16, and 17’s respective records and videos as stated in the above 17-by-case provision (see, e.g., Supreme Court Decision 2002Da14477, Apr. 1, 2007). Defendant 1 still used the 9-by-case vehicle to temporarily stop from the front side of the crosswalk at the time, and the driver’s signal was red at the time. Defendant 1, at the time, did not temporarily stop the vehicle to Defendant 3, who was seated on the rear seat, and did not help Defendant 1 start driving or drop off the vehicle from the above 1-by-case vehicle. It appears that it would be reasonable to view that Defendant 1 still used the 2-by-case vehicle to temporarily stop the vehicle for the purpose of defining “the vehicle in question” as stated in the above 1-by-case provision (see, e.g., Supreme Court Decision 2006Du2).

E. Sub-decision

Therefore, pursuant to Article 682(1) of the Commercial Act or the proviso of Article 729 of the Commercial Act, the Plaintiff may exercise the right to claim damages against the said Defendants by Nonparty 1 on behalf of the said Defendants, 116,169,641 won (=176,169,641 won + 60,000 won (property damage) + 120,000,000 won (property damage insurance) paid to Nonparty 1) after deducting 120,000 won, which was actually paid by the Plaintiff’s malicious damage insurance, and 116,169,641 won, which is the lesser of the total amount of 172,217,40 won (property damage amount actually paid to Nonparty 1) and 172,169,641 won (property damage amount of KRW 16,169,641) from the next day of the judgment of the Plaintiff to the 25th day of 2015th day after the following the judgment of this case.

3. Determination as to the claim for the defendant's malicious insurance

A. Determination on the cause of the claim

In full view of the purport of the arguments in the evidence Nos. 2 and 4, Defendant Music Damage Insurance Co., Ltd., around May 28, 2012, based on the following facts: (a) around May 28, 2012: (b) around May 28, 2012, the insured is the Defendant 3; (c) the insurance period is from May 28, 2012 to May 28, 2013; and (d) the lines of collateral are as follows: (a) the automobile insurance was made with personal liability insurance, personal liability insurance, personal liability insurance, personal liability insurance, personal liability insurance, and non-life insurance; (b) the Defendant Music Damage Insurance paid KRW 120,00,000 to the Plaintiff among the above insurance contracts; and (c) barring any special circumstance, the Plaintiff is obligated to pay KRW 120,000 to the Plaintiff as joint damage insurance contract with Nonparty 1 and Nonparty 2; and (d) the Plaintiff’s damage insurance contract with Nonparty 1 and Nonparty 27.

B. Determination on the defenses of the defendant malicious non-life insurance

However, the damage amount caused by the accident of this case, which exceeds the liability insurance amount corresponding to the personal damage I, is a defense that the damage amount caused by the accident of this case is exempted from liability according to the special terms and conditions.

In full view of the purport of the argument in Eul evidence No. 3, the above insurance contract concluded between the defendant malicious life insurance company and the defendant 3 includes "one limited driving condition for the named insured". Article 1 of the above special contract provides that "I (hereinafter "company") limits the insured to the insured (hereinafter "registered insured") who are entered in the insurance policy and their family members as stipulated in this special contract. However, this provision does not apply to "I do not pay insurance money for an accident occurred while a person other than the named insured under this special contract is driving an insured automobile." Article 2 (1) of the above special contract provides that "I do not consider that the accident occurred during the time of the accident, not for the designated driver's license, but for the designated driver's life insurance." Article 2 (1) of the above special contract provides that "I do not recognize that the accident occurred during the accident, not for the designated driver's life insurance, because it does not constitute "the accident" among the non-life accident of the defendant 1, as stated in the above insurance policy."

Therefore, the above defense of the defendant's malicious damage insurance is reasonable, and the plaintiff's claim for the defendant's malicious damage insurance is groundless.

4. Conclusion

Therefore, since the plaintiff's claim against the defendant 1, the defendant 1, and the defendant 3 is justified within the scope of the above recognition, it is accepted, and since the remaining claims against the defendant 1 and the plaintiff's claim against the defendant 3 are without merit, they are dismissed in all. It is so decided as per Disposition.

[Attachment]

Judge Hah-sik (Presiding Judge)-Ihn