2017Na61228 Compensation (ar)

A

Samsung Fire Insurance Co., Ltd.

Incheon District Court Decision 2017Gau50165 Decided June 28, 2017

May 2, 2018

May 30, 2018

1. The part of the judgment of the court of first instance against the defendant shall be revoked.

2. The plaintiff's claim as to the above cancellation part is dismissed.

3. The plaintiff is responsible for the total costs of the lawsuit between the plaintiff and the defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 19,870,000 won jointly and severally with the co-defendant B of the first instance trial (hereinafter referred to as "B") and the amount calculated by applying 5% per annum from October 20, 2016 to the rendering of the instant judgment and 15% per annum from the next day to the full payment day.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

A. B is the owner of C’s mid-term season (hereinafter referred to as “instant mid-term season”), and the Plaintiff is the owner of D’s up-to-date season (hereinafter referred to as “the instant out-to-date season”).

B. B entered into an insurance contract between the Defendant and the Defendant operating the insurance business, under which the insurer is liable for compensation in accordance with the terms and conditions of the insurance contract (hereinafter referred to as the “the insurance contract of this case”) for the loss incurred by the insured from removing or damaging another person’s property due to an accident that occurred while the insured owns, uses, and manages the insured automobile.

C. Meanwhile, around October 2016, E received contracts for the repair of graveyards located in Kimpo-si (hereinafter referred to as “instant construction”) from the Franpo-si during the construction period from October 15, 2016 to November 15, 2016, with the construction cost of KRW 12,500,000 (excluding value-added tax).

D. In order to carry out the instant construction, E, along with the article, leased the instant scraper from the Plaintiff, along with the article.

E. Around October 2016, B and the Plaintiff carried out the instant construction work at the instant construction site in accordance with E’s work instruction. The instant construction work occurred due to the transition of the instant engine operated by B, resulting in the Plaintiff’s shocking of the instant excavating engine, which led to the destruction of the instant drilling engine (hereinafter “instant accident”).

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 to 3, Eul evidence 1 to 4 (including additional numbers), Eul's testimony, and the purport of the whole pleadings

2. The parties' assertion

A. The Plaintiff asserts that B is liable to compensate the Plaintiff for damages, and the Defendant, who is the insurer of the instant mid-term season, is jointly and severally liable with B, because B was negligent in the process of performing the instant construction and damaged the instant mid-term season.

B. The defendant asserts that the insurance clause of this case provides that "loss arising from the property owned, used, or managed by the insured", and "loss arising from the property owned, used, or managed by the insured's user when the insured is engaged in his business [Article 8 (3) 1 and 2 of the insurance clause of this case], and that the loss arising from the excavation of this case due to the accident of this case is "damage arising from the property owned, used, or managed by the insured, E, the user of the insured, and that the loss arising from the excavation of this case is "loss arising from the property owned, used, or managed by the insured, E, the insured," and ultimately, the loss that occurred from the excavation of this case is exempted from liability in accordance with the above provision of the insurance contract of this case."

3. Determination

A. According to the descriptions of evidence Nos. 1 and 4, the insurance terms and conditions of this case include the following provisions (hereinafter referred to as "the terms and conditions of this case").

Article 8(Non-compensation Damages)(3) Any of the following damages shall not be compensated for property compensation. 1. The damage incurred in property owned, used, or managed by the insured or his/her parents, spouse, or children; 2. When the insured is engaged in his/her business, the damage incurred in property owned, used, or managed by the insured’s employer.

B. Under the insurance contract of this case, the insurer's exemption clause, such as the provision of this case, is "a person who is a "victim" or "a person who directs and supervises a victim". Thus, in relation to the damage incurred to the property, the insured becomes a victim at the same time. Since the obligation to compensate for the damage arises together, and the right to compensate for the damage is extinguished in the same aspect as that of the confusion of the right, the insurance profit to be protected as liability insurance is significantly decreased, and in such a case, the insurer's exemption clause can be prevented since there is moral hazard such as overcoming the damage to be excessively compensated by the insured (Supreme Court en banc Decision 97Da19403 delivered on April 23, 198).

C. We examine the case in light of the above terms and conditions of this case and its purport.

1) First of all, E corresponds to "the insured and the employer of the named insured (B)", and specifically, the following are examined:

A) Since E obtained by leasing the instant medium machine from B and carried out the instant construction under its management and responsibility, it constitutes “insured with approval” (Article 1(c) and (1) of the instant insurance terms and conditions, Article 7(3) and (2) of the instant insurance terms and conditions, even if they were leased the instant medium machine with the relevant article (see Supreme Court Decision 9Da68027, Apr. 25, 200), they also constitute “insured with approval” (Article 1(c) and (1) of the instant insurance terms and conditions).

B) Comprehensively taking account of the description of evidence Nos. 2 and 2, and the purport of the entire pleading in witness E, E is acknowledged as having given specific work instructions to B operating the instant climate while performing the instant construction work. The relationship between an employer and an employee is not limited to the case where there is a valid employment relationship, but also where a certain person actually conducts work on behalf of another person under the direction and supervision for that person, the relationship between the employer and the employee can be deemed as an employer and the employee (see Supreme Court Decision 2003Da49542, Dec. 26, 2003). In fact, as long as B performed the instant construction under specific work instructions from B E, it is reasonable to view that E is the employer of the named insured (B).

2) In addition, according to each of the above evidence, E is acknowledged to have given specific work instructions to the Plaintiff operating the instant excavation equipment while performing the instant construction. Ultimately, the instant excavation constitutes “property owned, used, and managed by E, the insured, and property owned, used, and managed by E, the user of the named insured (B).”

3) Therefore, the damage caused by the instant accident constitutes “damage arising from the property owned, used, and managed by E, the insured of acceptance,” and “damage arising from the property owned, used, and managed by E, the user of the named insured (B),” and thus, the Defendant, the insurer, pursuant to the terms and conditions of the instant case, is exempted from liability.

4. Conclusion

Therefore, the plaintiff's claim of this case against the defendant is dismissed as it is without merit. Since the part against the defendant among the judgment of the court of first instance which partially different conclusions is unfair, it is revoked by accepting the defendant's appeal, and it is so decided as per Disposition.

Judges Lee Dong-young

Judges Lee In-bok

Judges Lee Dong-ho

1) The terms used in Article 1 (Adjustment of Terms) are defined as follows:

13. Insured: Any of the following persons eligible to file a claim for compensation with an insurance company, and the specific scope of the insured shall be at the risk of complying with the issue of each guarantee:

(c) the Insured is the person who uses or manages the insured motor vehicle with the consent of the Insured.

(ii) Article 7 (insured)

In the personal compensation II and the personal compensation, the insured refers to any of the following persons:

3. The insured person with consent (the outline).