Twin Fire and Marine Insurance Co., Ltd. (Attorneys Han Han-soo et al., Counsel for the plaintiff-appellant)

Green Fire and Marine Insurance Co., Ltd. and 1 (Attorneys Park Sung-won et al., Counsel for the plaintiff-appellant)

November 9, 2004

1. Defendant Samsung Fire & Marine Insurance Co., Ltd. shall pay to the Plaintiff 31,366,428 won with 5% interest per annum from December 12, 2001 to December 24, 2004, and 20% interest per annum from the next day to the day of complete payment.

2. The plaintiff's primary and conjunctive claims against the defendant Samsung Fire and Marine Insurance Co., Ltd. and the remaining claims against the defendant Samsung Fire and Marine Insurance Co., Ltd. are dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiff and the Defendant Green Fire Marine Insurance Co., Ltd. is assessed against the Plaintiff. The part arising between the Plaintiff and the Defendant Samsung Fire Marine Insurance Co., Ltd. is divided into two parts, and one of them is assessed against the Plaintiff and the remainder.

4. Paragraph 1 can be provisionally executed.

The defendants shall pay to each plaintiff 59,641,480 won with an annual amount of 5% from December 12, 2001 to the last delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment. The defendant Green Fire Marine Co., Ltd. shall pay to the plaintiff 1,00,000 won with an annual amount of 5% interest per annum from December 8, 2001 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Basic facts

The following facts shall not be disputed between the parties, or may be acknowledged by taking into account the whole purport of the pleadings in each entry in Gap evidence (including serial numbers; hereinafter the same shall apply), Eul evidence (including serial numbers; hereinafter the same shall apply), Eul evidence 1 through 3, Eul evidence 1 through 5:

A. Status, etc. of the parties

(1) On May 13, 1998, the Plaintiff entered into a business liability insurance contract with the Seoul Urban Gas Co., Ltd. (hereinafter “Seoul Urban Gas Co., Ltd.”) with the insured during the period from May 13, 1998 to May 12, 1999. According to the special terms and conditions of the facility owner manager, the Plaintiff stated that the liability to compensate for losses incurred under the special terms and conditions of the damage liability insurance for gas accidents and fire insurance, which are mandatory insurance, shall not be compensated.

(2) On April 1, 1998, the Defendant Green Fire and Marine Insurance Co., Ltd. (hereinafter the Defendant Green Fire Co., Ltd.) concluded a gas accident liability insurance contract with Seoul Urban Gas Co., Ltd. with the insurance period from April 1, 1998 to April 1, 199 (hereinafter the instant gas accident liability insurance contract). According to the subscription form of the instant gas accident liability insurance, the insured is Seoul Urban Gas and Regional Management Office, general urban gas business entities, and gas treated as urban gas.

(3) Around July 14, 1998, Defendant Samsung Fire & Marine Insurance Co., Ltd. (hereinafter “Defendant Samsung Fire”) concluded a business compensation insurance agreement between the Seoul Urban Gas Area Management Council and Nonparty 1, etc., with the insured period from July 15, 1998 to July 14, 1999.

B. A regional management office entrusted management contract, etc. between the Seoul Urban Gas and Nonparty 1

The Seoul Urban Gas Co., Ltd. entered into a local management contract with Nonparty 1, who had been operating the gas business under the name of the Plaintiff at the time of the instant accident (trade name omitted), and the Seoul Urban Gas Co., Ltd. entrusted with the local management office. According to the above regional management contract, Nonparty 1, during the contract period, shall be liable for all damages and losses to another person’s life, body, and property due to a gas accident caused by Nonparty 1’s cause during the contract period, and shall subscribe to an insurance exceeding Article 64 of the Enforcement Rule of the Urban Gas Business Act so that compensation can be made; ② Nonparty 1 shall faithfully comply with the relevant laws and regulations such as the Urban Gas Business Act, and the regulations and regulations set forth by the Seoul Urban Gas Co., Ltd.; ③ The Seoul Urban Gas Co., Ltd. may guide and supervise the entrusted business performed by Nonparty 1; Nonparty 1 shall regularly cooperate with Nonparty 1 at least twice a year, and Nonparty 1 shall actively cooperate with it; Nonparty 1 shall conduct the inspection of actual status and guidance of Seoul Urban Gas from time to time.

C. Occurrence of the instant accident

(1) On December 5, 1998, Nonparty 2 entered into a contract with the deceased non-party 3, non-party 4, and non-party 5, who are his wife, to remove the liquefied petroleum gas facilities used by the former tenant of the above housing (hereinafter referred to as “PG”) and install and use urban gas facilities. On November 1, 199 of the same year, he entered into a contract with the Seoul Urban Gas Corporation to install and supply urban gas facilities in the above housing. Accordingly, on December 2 of the same year, the Seoul Urban Gas Corporation and the boiler installed the gas pipeline construction and boiler for the installation of measuring instruments and internal pipes on the above housing.

(2) Seoul Urban Gas and Non-Party 1, etc. also remove gas facilities when they installed and used new gas facilities. At the time of the installation of the said gas pipeline and boiler, employees at the time of the installation of the said gas pipeline construction and boiler were removed at the request of the deceased Non-Party 3, who was the wife of Non-Party 2, and disposed of the existing LPG boiler and the gas tank installed in the boiler, but they did not remove the kitchen gas tank. However, it was known that the deceased and their families were all removed from the above housing.

(3) On December 6, 1998, Nonparty 6, an employee of the Seoul Urban Gas Control Center (number omitted) (hereinafter “SPG Gas Control Center”), had been in the above house to install a connection between the intermediate valves, indoor air pipes, urban gas, and gas sirens at the above house, Nonparty 2, who was Nonparty 7, but only Nonparty 7, who did not directly think of the deceased, even though he did not directly think of the remainder of the LPG gas which had been in the process of completing urban gas links to the gas sirens and being exposed to the kitchen. However, on December 9, 1998, Nonparty 7, who was known by the above employees to have disposed of all of the LPG gas sources, did not pass through gas.

(4) However, at around 20:30 on December 12, 1998, the Deceased suffered an accident where the LPG, which was newly emitted from the above LPG heading to the gas siren (hereinafter the accident in this case) was explosiond by the above LPG heading around 20:30, and due to the accident in this case, the Deceased died of an injury in both sides, inside part of both sides, inside part of both sides, and in both sides, Non-Party 2, Non-Party 4, Non-Party 4, Non-Party 2, Non-Party 1, Non-Party 2, Non-Party 1, Non-Party 1, Non-Party 1, Non-Party 1, Non-Party 199, Non-Party 2, Non-Party 3, Non-Party 1, Non-Party 1, Non-Party 1, Non-Party 1, Non-Party 1

D. Payment, etc. of insurance money by the plaintiff

(1) The non-party 2, the non-party 4, and the non-party 5 (hereinafter the "non-party 2, etc.") who is the bereaved family members of the deceased filed a lawsuit for damages compensation against the deceased and their losses under the jurisdiction of the Seoul District Court branch branch of the Seoul District Court (case No. 1) on November 8, 2001, the above court rendered a judgment on November 8, 2001 that "Seoul Urban Gas, the non-party 1 and the non-party 5 filed a claim for damages compensation amounting to KRW 16,627,971, and the non-party 23,931,075 for each of them, and the non-party 5% per annum from December 12, 198 to November 8, 2001, and the next day to the day of full payment shall be 25% per annum." The above judgment became final and conclusive around that time.

(2) The amount of damages recognized in the above judgment is determined as total 122,292,829 won [the share of inheritance for the damage claim of the deceased is included in the share of inheritance for the damage claim of the deceased, and the amount calculated after offsetting the victim's negligence as 40% for the damage claim of the deceased) of the non-party 2, etc. The total amount of damages assessed as 89,254,719 won (the non-party 253,802,708 won, non-party 435,45,452,01 won), and the amount of damages calculated as 81,733,783 (the non-party 2 and non-party 4 were deducted from the above share of damages to the non-party 45,775) of the total amount of damages calculated as 89,254,719 won on April 20, 199 (the non-party 253,802,708 won).

(3) On December 7, 2001, the Plaintiff paid KRW 47,265,00 in total the principal and interest of the judgment to Nonparty 2 (the legal representative of Nonparty 4 and Nonparty 5, who is a minor) (=total of KRW 40,559,00 in total + KRW 23,931,075 in + delay delay damages + KRW 6,706,131,100 in total + KRW 6,706,131,100 in delay damages). In addition, the Plaintiff paid KRW 12,376,480 in insurance benefits from the National Health Insurance Corporation to the above Corporation and Nonparty 2, and Nonparty 4 (the legal representative of Nonparty 4 and Nonparty 5, a minor) and paid KRW 40,59,00 in total to the Corporation on December 13, 201.

(4) Meanwhile, Seoul Urban Gas transferred its insurance claim against the Defendant Green Fire on November 6, 2003 on the ground that it acquired insurance claim based on the instant gas accident liability insurance against the Defendant Green Fire due to the instant accident, around November 6, 2003, and notified the Plaintiff of the assignment of the above insurance claim on the same day, and reached the Defendant Green Fire at that time.

2. The plaintiff's primary claim and conjunctive claim against the defendant's green fire

A. The plaintiff's assertion

(1) The instant accident is a gas explosion accident that occurred as a result of the performance of the urban gas supply business of the Seoul Urban Gas Group (Serial omitted) regional management office, and is covered by the liability insurance for gas accidents of this case. According to the above insurance terms and conditions, the amount of KRW 30 million in the case of the death of the victim, and KRW 10 million in the case of the injury of KRW 1,000 in the case of the injury of KRW 1,00 in the case of the victim. Since the Seoul Urban Gas and the regional management office of the above insurance are the insured, the Defendant Green Fire has the obligation to pay the insurance money up to the limit of KRW 80 million in the case of the damage of the deceased non-party 3 who died during the video treatment of this case (the amount of KRW 40 million in the case of the instant accident) x 2 (the maximum amount of death insurance money and the injury of Grade 1) , KRW 20 million in the case of the injury of the non-party 4.

(2) However, the Plaintiff is an insurer who purchased a business liability insurance with the Seoul Urban Gas Act, and paid 47,265,000 won to Nonparty 2, etc. the principal and interest of the judgment based on the above judgment of damages (case number omitted) finalized by the Seoul District Court (Seoul District Court Branch Branch Branch Branch Support) and paid 59,641,480 won to the National Health Insurance Corporation, such as paying 12,376,480 won for indemnity. The above payment insurance amount exceeds the aggregate of the above compensation limit of the gas accident liability insurance of this case.

(3) Therefore, in accordance with the legal principle of subrogation by the insurer under Article 682 of the Commercial Act, the Plaintiff acquired the insurance claim based on the gas accident liability insurance for the Defendant of the Seoul Urban Gas within the scope of the insurance money to be paid under the above Paragraph (2). Accordingly, the Defendant Green Fire is obligated to pay the Plaintiff the above 59,641,480 won to the Plaintiff, respectively, and the damages for its delay. Furthermore, according to the terms and conditions of the gas accident liability insurance in this case, the insurance money shall be paid up to one million won for the costs of lawsuit and the attorney’s fees paid by the insured. Since the Seoul Urban Gas paid at least one million won as the attorney’s fees in the above lawsuit for damages, it is obligated to pay the maximum amount of compensation and the damages for its delay (main cause of claim).

(4) Even if the Plaintiff could not exercise the insurer’s subrogation right by failing to deduct the amount of damages paid under the gas accident compensation liability insurance stipulated under the above business liability insurance clause, the Seoul Urban Gas, around November 6, 2003, transferred each of the above insurance claims to the Plaintiff on the Defendant’s Green Fire, and notified the Defendant of the fact of transferring the claims on the same day, the Defendant is liable to pay the Plaintiff the amount of each of the above insurance claims (the grounds of preliminary claim).

B. Determination

The Plaintiff’s primary claim and conjunctive claim against the Defendant Green Fire are premised on the Defendant’s duty to pay insurance money under the instant gas accident liability insurance with respect to the instant accident. As such, first of all, we examine whether the instant accident is an insurance accident covered by the instant gas accident liability insurance.

According to the above evidence, Seoul Urban Gas Business Act (amended by Act No. 5823, Feb. 8, 199; hereinafter the same) Article 43(1) of the former Urban Gas Business Act (amended by Act No. 5823, Feb. 8, 199; hereinafter the same) (Urban Gas Business Act and users of specific gas-using facilities prescribed by the Ordinance of the Ministry of Trade, Industry and Energy shall purchase insurance to compensate for damage to the life, body, or property of others due to the gas accident they supplied or used). According to the above general terms and conditions of liability insurance for gas accidents, the insurer is not liable for damage compensation (see evidence No. 7 evidence No. Ga, No. 3, No. 2 No. 3, No. 5) to compensate for such damage (see Article 5 of the Evidence No. 5). However, according to the fact that the insurer is liable to compensate for damage caused by the gas accident of others at the place of business listed in the insurance policy during the insurance period or the gas accident of Seoul Urban Gas Accident Management Corporation.

Thus, the accident of this case cannot be deemed an insurance accident covered by the gas accident liability insurance of this case. Thus, on different premise, the plaintiff's primary claim and conjunctive claim against the defendant's green fire are without merit without examining the remaining issues.

3. Determination as to the Plaintiff’s claim against Defendant Samsung Fire

A. The parties' assertion

(1) The Plaintiff asserted that the instant accident occurred by Nonparty 1, who was entrusted with the (number omitted) regional management office, due to the lack of the existing LPG facilities at the location of the accident, requesting the supply of urban gas to Seoul Urban Gas without taking any measure, without violating the safety inspection duty. The Seoul Urban Gas was merely supplying urban gas upon the above request without knowing it. The instant accident occurred due to the total negligence on the part of Nonparty 1. Thus, Defendant Samsung Fire asserted that it has a duty to respond to the claim for reimbursement of the total amount of the above insurance money paid by the Plaintiff to Nonparty 2, etc.

(2) As to this, Defendant Samsung Fire is in the position to direct and supervise the regional management office from time to time by checking the operational status or providing guidance and training to the regional management office, it is deemed that the internal responsibility ratio of the Seoul Urban Gas due to the instant accident reaches a considerable degree. Defendant Samsung Fire, as the insurer of Nonparty 1, has jointly discharged its obligations within its scope by paying the total amount of KRW 89,254,719 to the victims. This exceeds KRW 60 per cent of the total insurance amount paid by the Plaintiff and the Defendant, which exceeds KRW 148,896,199, and exceeds the internal liability ratio of Nonparty 1. Accordingly, the Plaintiff asserted that the Plaintiff’s claim of this case was unjustifiable since it did not pay the insurance amount exceeding the share of the Seoul Urban Gas.

B. Determination

(1) In a case where multiple employers who direct and supervise the same perpetrator are liable for damages, each employer’s claim should be accepted to promote the fairness of internal burden of liability among each employer. Each employer’s liability ratio, which is based on the premise of the claim for compensation, shall be determined by taking into account the form of harmful act by an employee, the degree of relationship with the execution of each employer’s business, the employer’s instruction and supervision over the perpetrator, etc. (see Supreme Court Decision 94Da4974 delivered on December 27, 1994, etc.). In order to exercise the claim for reimbursement, it shall be deemed that the person who intends to exercise the right for reimbursement has paid the amount exceeding the amount of his/her own responsibility. Accordingly, the scope of the claim for reimbursement shall be limited to the excess part of the total amount of damages suffered by the victims.

(2) In the instant case, according to the foregoing, the instant accident was caused by negligence in the course of performing the business of urban gas handling of Kim Young-chul, an employee of the Seoul Urban Gas Management Office (number omitted), and the above non-party 1 and the Seoul Urban Gas are in the status of the user of the above Kim Young-chul. Thus, the non-party 1 and the Seoul Urban Gas are liable for all damages suffered by the victims due to the instant accident. Meanwhile, in light of all the circumstances revealed in the instant argument, such as the background leading up to the instant accident, the terms of the entrusted management contract between the Seoul Urban Gas and the non-party 1, the ratio of internal responsibility for the instant accident to the non-party 1 and the Seoul Urban Gas is reasonable.

Furthermore, the total amount of damages suffered by Nonparty 2, etc. is KRW 141,375,263, which is the sum of KRW 59,641,480, the principal and interest of the judgment paid to Nonparty 2, etc. and the amount of indemnity paid to the National Health Insurance Corporation pursuant to the above judgment of damages (case No. 1 omitted) rendered by the Plaintiff and KRW 81,73,783, which is deducted from each of the damages (referring to the amount of damages objectively confirmed by the above judgment of damages) paid by the Defendant Samsung F&M to Nonparty 2 and Nonparty 4 (referring to the amount of damages objectively confirmed by the above judgment of damages) (the Defendant Samsung Fire shall be included in the total amount of damages suffered by Nonparty 2, etc.). However, it is difficult to view that the entire amount of deposit exceeds the amount of damages deposited by Nonparty 4 as joint immunity.

Therefore, the portion of the Plaintiff’s internal liability ratio is KRW 28,275,052 (i.e., KRW 141,375,263 x below KRW 0.2, and KRW 0.480). As such, the Plaintiff paid the amount in excess of its share by paying the total of KRW 59,641,480. As such, the amount that the Plaintiff is entitled to claim for damages against Defendant Samsung F&M is either KRW 31,36,428 (i.e., KRW 59,641,480 - KRW 28,275,052) and legal interest or delay damages therefrom.

(3) Meanwhile, Defendant Samsung Fire alleged to the effect that it did not claim for reimbursement against Defendant Samsung Fire since it acquired the insurance claim equivalent to the total insurance amount paid by the Plaintiff against the Defendant Green Fire, the insurer of the instant gas accident liability insurance. However, as determined in the above paragraph (2), the instant accident cannot be deemed to constitute an insurance accident covered by the instant gas accident liability insurance, and thus, it cannot be accepted the Defendant Samsung Fire’s claim on a different premise.

C. Sub-committee

Therefore, Defendant Samsung Fire is obligated to claim against the Plaintiff on December 12, 2001, which is the day following the date of the Plaintiff’s final payment of insurance money, to pay legal interest or delay damages at the rate of 5% per annum under the Civil Act and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment, as the Plaintiff’s claim against the Defendant Samsung Fire is justified within the scope of the above recognition, and the remainder is without merit.

4. Conclusion

Therefore, the plaintiff's primary and conjunctive claims against the defendant Samsung Fire are all dismissed as it is without merit. The plaintiff's primary and conjunctive claims against the defendant Samsung Fire are partly accepted within the scope of recognition mentioned in the above 3-C., and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jong-han