2014Da227010 Claims

Music Insurance Co., Ltd.

1. The National Freight Trucking Association;

2. T&S corporation;

3. Fluor stock companies;

4. A;

Seoul Central District Court Decision 2014Na4179 Decided September 30, 2014

February 12, 2015

The part of the judgment of the court below against the plaintiff against the defendant Lee Jong-hoon and Eul is reversed, and that part of the case is remanded to the Panel Division of the Seoul Central District Court.

All of the appeals against Defendant BabS Co., Ltd., and the remaining appeals against Defendant BabS Co., Ltd., and Defendant 1’s National Freight Trucking Association, and Es.

Of the costs of appeal, the costs of appeal between the Plaintiff and Defendant Korea Freight Trucking Association, and E.S. S. Co. are assessed against the Plaintiff.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

After recognizing the facts as indicated in its reasoning, the lower court rejected the Plaintiff’s assertion against Defendant NFF, the Federation of Korea LAS Co., Ltd., and Defendant A on the ground that the instant accident did not constitute an accident while the instant accident was in operation, on the grounds that: (a) the instant accident was completely separated from the instant fleet on March 2, 2012 on or around 18:30; and (b) the instant accident was occurred for at least seven hours from or around March 3, 2012 to 02:0; and (c) the instant accident cannot be deemed an accident during operation of the instant fleet. Examining the relevant legal principles and records, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine of the relevant Supreme Court precedents, or by misapprehending logical and empirical rules.

2. As to the ground of appeal No. 2, where the victim was negligent in causing or expanding damage in a tort compensation case, it should be taken into account as a matter of course in determining the scope of liability for damages. However, the fact-finding or determining the ratio of comparative negligence constitutes the exclusive authority of the fact-finding court, unless it is deemed that it is considerably unreasonable in light of the principle of equity (see, e.g., Supreme Court Decision 2010Da79947, Jan. 12, 2012

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s fact-finding or its determination on the grounds for comparative negligence cannot be deemed considerably unreasonable in light of the principle of equity. Therefore, the allegation in the grounds of appeal

3. Regarding ground of appeal No. 3

A. After recognizing the facts as indicated in its reasoning, the lower court, based on the legal doctrine of the Supreme Court Decision 2012Da27643 Decided September 12, 2013, determined as follows.

1) The Plaintiff paid KRW 20,000,000 as the death insurance amount of B based on each of the instant non-insured accident insurance.

2) Even if B calculated on the basis of the daily wage of an urban ordinary person, the amount of damages for lost income suffered by the instant accident is KRW 218,802,144. As such, the amount of damages for lost income suffered by the instant accident is at least KRW 198,802,144 (=218,802,144 KRW 20,000 from KRW 20,000). (iii) The amount of damages that B may claim against the Defendant C/S Co., Ltd. (hereinafter referred to as the “Defendant, F/S”), and the amount of damages that B may claim against the Defendant for the instant non-insurance accident shall not exceed KRW 21,880,214 (an amount equivalent to 10% of the aforementioned Defendants’ liability ratio), equivalent to the amount of damages for lost income of KRW 198,802,144.

4) Therefore, even if the Plaintiff paid the death insurance amount of KRW 20,000,00 to B, the Plaintiff cannot exercise the insurer subrogation right against the said Defendants in subrogation of B, since the claim for damages against the said Defendants falls short of the amount of non-compensation damage.

B. However, we cannot agree with the above judgment of the court below for the following reasons.

1) An insurer of a special contract for indemnity security by an insured motor vehicle is not taking over risks based on the actual amount of damages of the insured, but is limited to the amount calculated according to the payment standards for insurance proceeds stipulated in the ordinary terms and conditions. Thus, in cases where an insurer which has entered into a special contract for indemnity security by an insured motor vehicle pays insurance proceeds to the insured, the scope of vicarious exercise of the right to claim compensation against the insured pursuant to the proviso to Article 729 of the Commercial Act is limited to the amount of insurance proceeds calculated and paid to the insured, within the scope of the right to claim compensation against the insured motor vehicle under the ordinary terms and conditions (see Supreme Court Decision 2012Da8716, Oct. 15, 2014

2) In light of the above legal principles, if the circumstances presented by the court below were to be examined, and if 20,000,000 won paid as the death insurance money of each of the instant non-insurance in relation to the accident insurance of each of the instant case was properly calculated in accordance with the insurance payment criteria set forth in the ordinary terms and conditions, B may exercise the insurer's subrogation right over KRW 20,00,000,000, which is the amount of damages equivalent to the lost profit which the Plaintiff may claim against the Defendant B and the Defendant C.

3) Supreme Court Decision 2012Da27643 Decided September 12, 2013, etc., invoked by the lower court, is related to general non-life insurance, the risks of which are taken over based on the insured’s actual amount of damages, and thus, it is unreasonable to invoke the instant case.

4) Therefore, the lower court erred by misapprehending the legal doctrine on the scope of subrogation by an insurer based on the special agreement for accident security by an accident-free motor vehicle, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

4. Conclusion

Therefore, the part of the judgment of the court below against the plaintiff, among the part against the defendant Bags and Eul, is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeals against the defendant Bags and Eul and all appeals against the defendant Bags and the Korean Freight Trucking Association, and E.S. T.P.P. Co., Ltd. are dismissed. The costs of appeal between the plaintiff and the defendant 1's National Freight Trucking Association, and E.S. Co., Ltd. are assessed against the losing party.

Justices Shin Young-young

Justices Lee Sang-hoon

Justices Kim Chang-tae, Counsel for the defendant

Justices Cho Jong-hee