2016Na28599 Undue gains

Mets Fire and Marine Insurance Corporation

State Fire & Marine Insurance Corporation

Seoul Central District Court Decision 2016Da500954 Decided May 12, 2016

January 18, 2017

February 15, 2017

1. Of the judgment of the court of first instance, the part of the judgment against the defendant ordering the plaintiff to pay in excess of 26,729,394 won, and 5% per annum from September 6, 2013 to February 15, 2017, and 15% per annum from the next day to the date of complete payment, shall be revoked, and the plaintiff's claim corresponding to the above revoked part shall be dismissed.

2. The defendant's remaining appeal is dismissed.

3. All costs of the lawsuit shall be borne by the defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 26,769,710 won with 5% interest per annum from September 6, 2013 to the service date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of full payment.

2. Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

1. Basic facts

The court's explanation on this part is the same as the "1. Basic Facts" of the judgment of the court of the first instance, and therefore, they are cited by the main text of Article 420 of the Civil Procedure Act.

2. The parties' assertion

The court's explanation on this part is the same as the part of "the parties' assertion" of the judgment of the court of first instance. Thus, it is citing this part by the main text of Article 420 of the Civil Procedure Act.

3. Determination

A. The victims of the instant fire, which caused the occurrence and scope of the victims’ claim for the liability insurance proceeds against the Defendant, may directly claim compensation to the Defendant, the insurer, in accordance with Article 724(2) of the Commercial Act, inasmuch as the victims of the instant fire incurred damages due to an accident attributable to D, the insured insured of the instant liability insurance contract,

1) The occurrence of D’s liability for damages is presumed to be attributable to the failure of the victims of the instant fire to fulfill their duty to take protective measures in order to prevent the occurrence and spread of fire on the interior structure of the instant apartment No. 101, 1001, and thus, the interior fire was spreaded to adjoining neighbors. However, as long as D possesses and owns the instant apartment, and directly and specifically controls, and manages it, it is presumed that the instant fire was attributable to the failure of D to fulfill their duty to take protective measures for the purpose of preventing the occurrence and spread of fire (see Article 758 of the Civil Act). Accordingly, D must compensate the victims of the instant fire for the damages they suffered.

2) Scope of D’s liability for damages

A) The amount of damages of victims to the section for common use

The fact that the amount of damages for the common area caused by the instant fire is 16,874,444, and that the sum of damages for the exclusive area of the instant apartment complex is 22,59.82m2m2, 101 and 1001m2, the exclusive area of the instant apartment complex is 59.86m2, there is no dispute between the parties. However, since each co-owner's share in the common area of a partitioned building is in accordance with the ratio of the area of the exclusive area he/she owns (Article 12(1) of the Act on the Ownership and Management of Aggregate Buildings) and D is the co-owner of the instant apartment building 1001, 101, 59.86/22,59, 599.82, the amount of damages corresponding to D's share among the damages for common area is 4,695m2 (=16,874,444, 599.82, 2599m2,49).64).

B) the amount of damages suffered by victims for section of exclusive ownership and physical damage

D The fact that the amount of damage on the body and property of the neighboring household residents, excluding 1001 shares, is KRW 14,079,118 (i.e., total amount of damage 30,953,562 - total amount of damage 16,874,444) is equal as seen earlier. As such, D is liable to compensate the victims for the entire amount.

3) Whether to reduce liability

The defendant asserts that D's amount of damages should be reduced in accordance with the law on the responsibility for realization.

In light of the cause and scale of the instant fire, the subject and degree of damage, the cause of expansion of combustion and damage, and other circumstances to be considered in determining the amount of damages, it cannot be found that there is any reason to reduce D’s amount of damages. (In particular, the Defendant is an insurer of a liability insurance contract that receives insurance premiums from D and takes over risks arising in its territory, and is more so more so in light of the purport of the liability insurance system that seeks to promote the protection of victims by recognizing the victims’ direct right to claim damages against the insurer.). The Defendant’s assertion is rejected.

4) Scope of victims’ direct claims

A) Therefore, barring any special circumstance, the victims may directly claim compensation to the Defendant for damages amounting to KRW 30,908,867 (i.e., common areas of KRW 16,829,749 + Section 14,079,118).

B) Accordingly, the Defendant asserts that the amount of KRW 200,000 of D’s own shares should be deducted from the Defendant’s liability according to the terms and conditions of the instant liability insurance contract

On the other hand, the victim’s direct right to claim insurance money recognized as the victim falls under the right to claim damages against the insurer. However, the liability for damages borne by the insurer is premised on an insurance contract, and shall be recognized within the scope of the insurer’s liability limit under an insurance contract. Therefore, if the insurance clause provides for the insurer to deduct the self-paid amount from the insurance amount payable by the insurer, the insurer bears the obligation to directly pay the victim the amount after deducting the self-paid amount from the damages (see, e.g., Supreme Court Decision 2013Da71951, Sept

However, under the liability insurance contract of this case, the maximum amount of compensation for the household life compensation liability under the contract of this case is KRW 100,000 and KRW 200,000 are as seen earlier. According to the evidence No. 8, the term of the liability insurance contract of this case is merely providing that the insured shall compensate for the legal damages that the insured is liable to pay to the injured party within the limit of the purchase amount of insurance (limit of compensation), but the insurer shall compensate for the portion exceeding its own contributions if the contract is agreed (Article 5 (2) 1 and 5 (1) 1 of the above terms and conditions), and did not provide that the insurer shall deduct from the insurance amount to be paid by the insurer. Accordingly, the scope of compensation for the damages that the Defendant is liable to pay directly due to the fire of this case exceeds KRW 200,000,000,000,000,000,000,0000,000,000,000).

The defendant's assertion of deduction is not accepted.

B. The occurrence and scope of the insurer subrogation right against the defendant

1) The Plaintiff’s right of subrogation against the Defendant

A) In the event that the damage was caused by an act of a third party, the insurer who paid the insurance money shall, to the extent of the amount paid, acquire the rights of the policyholder or the insured against the third party (Article 682(1) of the Commercial Act). As such, the rights acquired by the insurer shall be included as a matter of course in the right of direct claim recognized by the injured party pursuant to Article 724(2) of the Commercial Act (see, e.g., Supreme Court Decision 96Da1976

As seen earlier, the Plaintiff paid insurance money to the victims of the instant fire based on the instant accident insurance contract. Under the aforementioned legal doctrine, the Plaintiff shall be subrogated to the Defendant of the victims of the instant fire, barring any special circumstance.

B) As to this, the Defendant asserts that D, which caused the instant fire, constitutes the insured of the instant accident insurance contract, not a third party under Article 682 of the Commercial Act, and thus, the Plaintiff cannot exercise the insurer’s subrogation right.

In light of the interpretation of an insurance contract, if a person who caused an insurance accident falls under an insured worker who is not a "third party" as stipulated in the above Act, an insurer may not exercise the insurer's right to subrogation against the insured events (see, e.g., Supreme Court Decision 2011Da94141, Apr. 26, 2012). However, in case of an accident insurance, only the subject matter and risk of the insurance are determined in accordance with the insurance contract, and the insured and insurable interests are unclear, whether the insurance contract is for itself or for others should be determined in consideration of the contents of the insurance contract, the insurance contract, the terms and conditions which the parties consider as the content of the insurance contract, the process of concluding the insurance contract, the practice of the insurance company's practice, etc. (see, e.g., Supreme Court Decision 2002Da33496, Jan. 24, 202).

Ultimately, the Plaintiff cannot exercise the insurer subrogation right for the portion of the insurance money corresponding to D’s share in the section for common use as the insured of the instant accident insurance contract, i.e., the part of the insurance money corresponding to D’s share in common use, and the insurer subrogation right for the remainder of the insurance money (excluding the portion equivalent to D’s share in the insurance money for common use and the section for exclusive use by other victims and the insurance money for physical damage). Thus, the Defendant’s assertion is accepted from the above recognition scope, and the scope of the Plaintiff’s subrogation right

2) Scope of the Plaintiff’s subrogation right

A) The Plaintiff paid KRW 15,221,272 insurance money of the section for common use and KRW 26,769,710 of the insurance money of the section for common use and the section for exclusive use and the section for physical damage, with the insurance money of the instant fire, KRW 11,548,438, and KRW 26,710 of the insurance money of the said section for common use as seen earlier. D has insurable interest based on the instant accident insurance contract for KRW 40,316 of the insurance money of the said section for common use (= KRW 15,221,272, KRW 15,272, KRW 272, KRW 59.86/22,599, KRW 599.82, KRW 26,729,394, which was deducted from the total insurance money (=26,769,710, KRW 40,3

B) On the other hand, the Plaintiff is an insurer who has paid part of the insurance money to be compensated, and may exercise its rights to the extent that it does not infringe on the insured’s rights (Article 682(1) proviso of the Commercial Act). In other words, the insured may either request the third party to perform his liability for damages remaining without compensating for the insurance money received from the insurer, or exercise the third party’s direct right to claim the insurance money against the third party. The insurer of the non-life insurance, which has paid part of the insurance money to be compensated, may exercise its right to subrogation only for the remainder after deducting the amount of the third party’s liability for damages (or any corresponding insurer) reserved against the insured,

In light of the above legal principles, the victims of the fire of this case were originally entitled to direct compensation for KRW 30,908,867 of their damages to the Defendant. However, the Plaintiff received insurance money of KRW 26,729,394 (excluding the part of the whole insurance money paid by the Plaintiff, excluding the part of the insured interest of KRW D) from the Plaintiff and reserved only KRW 4,179,473 (= KRW 30,908,867 – KRW 26,729,394) from the victims. Thus, the Plaintiff was clearly entitled to direct compensation for the damages of KRW 26,729,394 (= KRW 30,908,867), - 4,179,473) within the scope of the Plaintiff’s right of subrogation. Thus, the Plaintiff acquired the Plaintiff’s right of direct subrogation within the scope of the insurer’s right of subrogation.

3) Sub-committee

Therefore, the Defendant, the insurer of the instant liability insurance, is obligated to pay to the Plaintiff, who subrogated the victims of the instant fire, the amount of KRW 26,729,394 as well as damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act, from September 6, 2013, which is the final date of the payment of insurance proceeds, to February 15, 2017, which is the date the Defendant rendered a judgment of the first instance court, to the date of the final payment of insurance proceeds, and 15% per annum as stipulated in the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings, from the following day

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claims are dismissed without merit. Since the part against the defendant who ordered payment in excess of the above recognized amount among the judgment of the court of first instance which partially different conclusions is unfair, it is revoked, and the plaintiff's claim corresponding to the revoked part is dismissed, and the defendant's remaining appeal is dismissed as it is without merit. It is so decided as per Disposition.

The judges of the presiding judge shall be reappointed;

Judges Kim Gin-han

Judges Lee Jin-young