[1] The meaning of "accident" among the insurance accident requirements of an injury insurance contract

[2] In a case where the insured of an accident insurance died due to infection caused by the medical team's negligence in the course of a laundry surgery to remove a laundry laundum, the case holding that it cannot be ruled out that the possibility that the insured's consent to the above lapar surgery cannot be viewed as having consented and predicted to the result of the injury caused by medical team's negligence, and that the above accident is not caused by the insured's intention but caused by an unpredictable cause, and thus, it constitutes an "accident"

[3] The purpose of the exemption clause of the accident insurance policy under which “no compensation shall be made for damage caused by surgery or other medical treatment. However, in the case of injury inflicted by the company, compensation shall be made,” and whether the injury caused by medical malpractice in the course of surgery or other medical treatment is an element to be considered in the determination of the application of the exemption clause in question (negative)

[4] In a case where the insured of an accident insurance was diagnosed at a hospital, received a launcing surgery to remove a launculum, but died due to infection caused by the medical team's negligence in the process, the case holding that the accident is subject to exemption clause of the accident insurance regardless of whether the medical team's negligence contributed to the occurrence of the accident, on the ground that the accident was caused by the realization of the risk of increased infection due to the laune surgery for cancer treatment, which is a disease not compensated by the insurer, and thus, the accident insurance clause is applicable

[1] The term "accident" among the requirements of an accident covered by an accident insurance contract refers to an accident caused by a cause unforeseeable by the insured, which is neither intentional nor foreseeable, and refers to an accident which causes an unforeseeable result in ordinary process.

[2] In a case where the insured of an accident insurance died due to infection caused by the medical team's negligence in the course of a laundry surgery to remove a laundry laundum, the case holding that it cannot be ruled out that the possibility that the insured's consent to the above lapar surgery cannot be viewed as having consented and predicted to the result of the injury caused by medical team's negligence, and that the above accident is not caused by the insured's intention but caused by an unpredictable cause, and thus, it constitutes an "accident"

[3] The purpose of the exemption clause of the accident insurance policy is to provide the insured with an external operation and other medical treatment (hereinafter “overseas operation, etc.”) to treat non-compensation diseases, etc., the insured is to exclude the risk of injury from the beginning of the insurance protection, as it considerably increases in the risk of injury compared to the one exposed to daily life. However, in light of the purport of the exemption clause as above, where the risk increased due to the external operation, etc. for treating a specific disease, etc., the insurance company is not subject to the exemption clause, but to provide the insurance protection only to the risk caused by the external operation, etc. for treating the injury, which is the insurance accident covered by the insurance company. In light of the aforementioned exemption clause, in the event of the actual result of the increased risk caused by the external operation, etc. for treating the specific disease, whether the injury was caused by the medical negligence in the course of the external operation, etc., is not to consider the application of the exemption clause, unless there are any special circumstances.

[4] In a case where the insured of an accident insurance was diagnosed at a hospital, received a launcing surgery to remove a launculum, but died due to infection caused by the medical team's negligence in the process, the case holding that the accident is subject to exemption clause of the accident insurance regardless of whether the medical team's negligence contributed to the occurrence of the accident, on the ground that the accident was caused by the realization of the risk of increased infection due to the laune surgery for cancer treatment, which is a disease not compensated by the insurer, and thus, the accident insurance clause is applicable

[1] Article 737 of the Commercial Act / [2] Article 737 of the Commercial Act / [3] Article 737 of the Commercial Act / [4] Article 737 of the Commercial Act

[1] Supreme Court Decision 2001Da55499, 55505 decided Nov. 9, 2001 (Gong2002Sang, 24) Supreme Court Decision 2003Da35215, 3522 decided Nov. 28, 2003 (Gong2004Sang, 46)

Amera Homebaz. (Law Firm Barun Law, Attorney Lee In-bok, Counsel for the plaintiff-appellant)

Defendant (Attorney Kim Jae-sung, Counsel for the defendant-appellant)

Changwon District Court Decision 2008Na7271, 7288 decided September 26, 2008

The appeal is dismissed. The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff).

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

The term "accident" among the requirements of an accident covered by an accident insurance contract means an accident caused by an unforeseeable cause, which is neither intentional nor foreseeable, and which brings about an unforeseeable result due to ordinary process (see, e.g., Supreme Court Decision 2001Da5549, 5505, Nov. 9, 2001).

According to the reasoning of the judgment below, the court below held that the accident of this case was caused by infection by medical team's negligence in the course of the laundry surgery to remove the laundry laundment by the non-party insured of the accident of this case, and caused death as a result of the medical act conducted under the insured's expectation and consent, and thus, it does not constitute an "accident" because it was caused by medical doctor's negligence in the course of the laundry surgery to remove the laundry laundment.

However, in the event that the insured suffered from an injury due to medical malpractice in the process of surgery and other medical treatment for treatment of a disease, even if the insured consented to such surgery and other medical treatment, it does not necessarily mean that the insured consented to and predicted the result of suffering from injury immediately due to medical malpractice. In this case, if the non-party in this case led to the pulmonary treatment due to infection caused by the medical team's negligence during the above laparary surgery, it cannot be easily concluded that he consented to and predicted such result. Rather, it cannot be ruled out that it constitutes an "accident" as it was caused by an unexpected cause, not by the insured's intention, but by an unpredictable cause.

However, as seen below 2. As to the interpretation of the accident insurance clause of this case, there is no obligation to pay insurance money to the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) by the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) as to the interpretation of the accident insurance clause of this case, and thus, the Plaintiff’s claim of the principal lawsuit should be accepted and the Defendant’s counterclaim claim should be rejected. As long as the lower court concluded such conclusion, the lower court’s judgment on this issue does not affect the conclusion of the judgment

2. Regarding ground of appeal No. 2

The instant accident insurance clause includes an exemption clause to the effect that “the insurance company shall not compensate for damage caused by an surgery or any other medical treatment. However, in the event of an injury inflicted by the company” (Article 7(1)6). The purpose of the exemption clause is to exclude the insured from the beginning the subject of the insurance protection, since there is a significant increase in the risk of injury, compared to the risks exposed in daily life, in the event of an surgery or other medical treatment for treating a disease, etc. which is not compensated by the insurance company against the insured (hereinafter “over-the-counter operation, etc.”), the insured shall be excluded from the subject of the insurance protection: Provided, That in light of the aforementioned exemption clause, the insurance company intends to grant the insurance protection only to the risks caused by the surgery, etc. for treating the injury, which is an insurance accident covered by the insurance company. In light of the purport of the exemption clause, where the increased risk caused by an surgery, etc. for treating a specific disease, the aforementioned exemption clause is not subject to insurance money, and whether the aforementioned exemption clause applies to medical malpractice, etc., unless special circumstances exist.

According to the facts acknowledged by the court below, the non-party insured of the accident insurance of this case was hospitalized at the hospital in March 27, 2006, and was diagnosed with the Madodoom Madooom (Madoomomomam) on April 5, 2006, and was performed a lapar surgery to remove the Madoom Madoomopum, but during that process, the laver was caused by infection caused by the negligence by the medical team's negligence and died on April 14 of the same year. In applying the above legal principles, the accident of this case was caused by the realization of the increased risk of infection caused by the laparo operation for treatment of cancer, which is not compensated by the plaintiff, so the exemption clause of this case shall be applied regardless of whether or not the medical malpractice of the hospital physician as stated in the occurrence of

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the interpretation of exemption clause of accident insurance as otherwise alleged in the ground of appeal.

3. As to the third ground for appeal

The defendant asserted that the above exemption clause was not incorporated into the insurance contract of this case since the plaintiff did not perform its duty to explain whether the above exemption clause applies to the case where the insurance accident occurred due to medical malpractice at the time of the conclusion of the insurance contract of this case. However, the defendant's assertion that the exemption clause was not incorporated into the insurance contract of this case. However, since it is apparent in the record that it was only made by the defendant in the final appeal, it cannot

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Ji-hyung (Presiding Justice)