In a case where the victim Gap filed a lawsuit against the insurance company Eul, the insurer of the victim vehicle Eul, seeking the remainder of the medical expenses already paid, and the company Eul filed a counterclaim seeking the return of unjust enrichment equivalent to the amount exceeding the amount of damages out of the medical expenses already paid to Gap, the case holding that the company Eul has the duty to return the difference between the amount equivalent to the ratio of negligence of Eul out of the amount paid to Gap as the medical expenses and the amount of damages to Eul as recognized in the principal claim, as unjust enrichment

In a case where the victim Gap filed a lawsuit against Eul insurance company, the insurer of the victim Eul, seeking the remainder of the medical expenses already paid, and Eul filed a counterclaim seeking the return of unjust enrichment equivalent to the amount exceeding the amount of damages out of the medical expenses already paid to Eul, the case held that the insurance clauses stipulate that "in a case where the lawsuit is not brought, insurance money shall be paid on the basis of the amount calculated according to the payment criteria set forth in the terms and conditions, and in a case where the lawsuit is brought, insurance money shall be paid on the basis of the amount calculated based on the actual amount of damages incurred to the victim according to the final and conclusive judgment of the court," and the provision that "in a case where the amount calculated according to the ratio of fault of the victim is less than the amount corresponding to the amount of the medical expenses calculated according to the ratio of fault of the victim first, and second, the medical expenses equivalent to the treatment expenses corresponding to the amount of the damages incurred to Eul out of the amount paid to Eul as part of the payment criteria for insurance money, and thus the amount of damages incurred to Eul in the main claim shall be returned to Gap without any legal cause.

Articles 105 and 741 of the Civil Act

Hyundai Marine Fire Insurance Co., Ltd. (Law Firm Inn&W, Attorneys Gyeong-soo et al., Counsel for the plaintiff-appellant)

Counterclaim Defendant (Law Firm Han-chul, Attorneys Kim Young-won et al., Counsel for the plaintiff-appellant)

Seoul Central District Court Decision 2012Na26076, 26083 Decided November 16, 2012

The part of the judgment of the court below regarding the counterclaim shall be reversed, and that part of the case shall be remanded to the Panel Division of the Seoul Central District Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Examining the reasoning of the judgment below in light of the records, it is just for the court below to reject the written claim for exemption of the non-resident on the grounds as stated in its reasoning, and there is no violation of the rules of evidence, incomplete hearing, or

2. Regarding ground of appeal No. 2

A. As to the contents of compensation of the non-Counterclaim 6 in Section 1-2 of Section 1 of Section 1 of Section II of the common benefit clause included in the insurance contract of this case, the lower court determined that “the insurer shall pay the amount calculated by the standard for the payment of insurance proceeds to the non-Counterclaim 6 Plaintiff less the deductible amount” from the aggregate of “expenses” and “expenses” to the insurance proceeds. [in the event a lawsuit is brought, the insured shall be deemed to be the amount calculated by the standard for the payment of the insurance proceeds (including damages) according to the final judgment of the court of the Republic of Korea as the “amount calculated by the standard for the payment of the insurance proceeds” (hereinafter “the provision for the calculation of the insurance proceeds of this case”). On the other hand, Section 4 of Section 5 of the contract provides that “the Defendant shall be deemed to have paid the insurance proceeds to the non-Counterclaim 6 Plaintiff at least 9% of the medical expenses to the non-Counterclaim 97 medical institution without any further offset of the amount calculated by the victim’s fault ratio.”

B. However, we cannot accept the judgment of the court below for the following reasons.

(1) In interpreting the terms and conditions of a contract, a fair and reasonable interpretation shall be made in accordance with the principle of trust and good faith in consideration of the purpose and purpose of the terms and conditions, and an objective and uniform interpretation shall be made on the basis of average customer’s understanding potential without considering the intended purpose or intent of each contracting party (see, e.g., Supreme Court Decisions 2009Da60305, Dec. 9, 2010; 201Da1118, Apr. 28, 2011).

The provision on the calculation of insurance money of this case provides that the insurer shall pay insurance money based on the amount calculated according to the payment standards of insurance money stipulated in the terms and conditions unless a lawsuit is brought, such as the occurrence of an insurance accident between the victim and the insured, but in case of a lawsuit, the court shall calculate the amount to be compensated for the victim by the insured based on the actual amount of damages incurred to the victim (hereinafter “general standard for calculation of damages”). In such a case, the insurer shall not be deemed the payment criteria stipulated in the terms and conditions, but shall be deemed the amount calculated according to the general standard for calculation of damages calculated according to the court’

In addition, the insurance contract of this case provides as part of the payment standard of insurance money. Thus, barring any special circumstance, the insurer can only apply to the case where the insurer pays insurance money on the basis of the amount calculated according to the payment standard of insurance money under the terms and conditions, and it shall not apply to the case where the insurer pays insurance money based on the amount calculated according to the calculation standard of general damages by the final judgment of the court, not the payment standard of insurance money under the terms and conditions

In light of the purport of the provision on the calculation of insurance proceeds of this case and the nature of the provision on compensation for medical expenses, and the legal nature of the victim’s direct claim pursuant to Article 724(2) of the Commercial Act, as the insurer concurrently takes over the insured’s obligation to compensate for damages against the victim, the victim is the insurer’s right to claim damages against the insurer and the insured’s right to claim damages against the insurer, not the alteration of the insurance claim or the right corresponding thereto against the insurer (see Supreme Court Decision 94Da6819, May 27, 1994, etc.), “litigation” under the provision on the calculation of insurance proceeds of this case includes not only the case where the insured claims against the insured for damages after the amount to be compensated for damages is determined by the final judgment of the court, but also the case where the victim directly claims damages against the insurer by filing a lawsuit against the insurer, or the insurer claims restitution of unjust enrichment regarding the part exceeding the amount of damages from the insurance proceeds, such as seeking confirmation of existence of liability or medical expenses

However, even if an insurer claims a return of unjust enrichment on the remainder of the medical expenses already paid by the insurer against the victim after deducting the amount of compensation calculated according to the victim’s ratio of fault, the insurer’s payment of medical expenses ought to be deemed as having been ultimately made in accordance with the provision on the calculation of the insurance proceeds of this case by agreement with the victim, barring the application of the provision on compensation for medical expenses on the ground that the lawsuit was instituted.

(2) Examining in light of such legal principles, in the instant case, the victim-Counterclaim Defendant filed a claim for damages regarding the remainder of damages other than the medical expenses already paid by the counterclaim against the counterclaim, which is the insurer, and filed a claim for return of unjust enrichment equivalent to the medical expenses already paid by the counterclaim against the counterclaim Defendant. Thus, the instant case constitutes “case where a lawsuit has been instituted” under the instant provision for the calculation of insurance proceeds. Thus, unless there is any evidence to prove that the payment of medical expenses by the counterclaim was final and conclusive in accordance with the instant provision for the calculation of insurance proceeds due to the agreement with the counterclaim Defendant, the medical expense compensation provision cannot be deemed applicable. Thus, the difference between the amount equivalent to the percentage of the counterclaim Defendant’s fault out of the amount paid by the counterclaim Defendant as the medical expenses by the counterclaim, and the amount of damages paid by the counterclaim Defendant against the counterclaim, which is recognized in the principal claim, has been acquired without legal grounds, and the Defendant-Counterclaim Defendant is obligated to return this to the counterclaim.

C. Nevertheless, the lower court rejected the Plaintiff’s claim for return of unjust enrichment on the ground that the medical expenses paid by the Plaintiff to the Plaintiff were the insurance money that ought to be paid to the Plaintiff according to the terms and conditions. In so doing, the lower court erred by misapprehending the legal doctrine on the calculation of the insurance amount in this case and the interpretation of the compensation provisions for medical expenses, thereby adversely affecting the conclusion

3. Conclusion

Therefore, the part of the judgment of the court below regarding the counterclaim is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)