2018Da213811 Compensation for damages

Plaintiff:

Law Firm LLC et al., Counsel for defendant-appellant

[Defendant-Appellant]

Defendant

Law Firm Han-chan, Attorney Han-chan

5 others (Attorneys Kang Han-soo et al.)

Seoul Central District Court Decision 2017Na22017 Decided January 24, 2018

October 15, 2020

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to the Seoul Central District Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the grounds of appeal Nos. 1 and 2

For reasons indicated in its holding, the lower court determined that the Defendant was liable for compensating the Plaintiff for damages caused by the instant fire, on the ground that the construction or preservation defect of the building owned by the Defendant was one of the joint causes of the instant fire.

Examining the reasoning of the lower judgment in light of the record, the lower court did not err in its judgment by misapprehending the legal doctrine on res judicata, good faith, and offset, contrary to what is alleged in the grounds of appeal.

2. Regarding ground of appeal No. 4

A. In a case where a third party, at the same time, is liable to compensate for an insurance accident involving non-life insurance, and the insured claims for damages against him/her, the insured may claim against a third party for the performance of his/her liability to compensate for any remaining damages without compensating for the insurance proceeds received from the insurer (see, e.g., Supreme Court en banc Decision 2014Da46211, Jan. 22, 2015).

The provisions of Article 682 of the Commercial Act concerning subrogation of an insurer provide that an insured person shall hold a claim against a third party even after he/she has been paid the insured amount from an insurer to the insured, which would result in benefit going against the principle of non-life insurance system, and it is unreasonable for a third party, who is a liable for compensation, to be exempted from liability due to the receipt of insurance proceeds of the insured, so that such benefit would be attributed to the insurer (see, e.g., Supreme Court Decisions 89Meu21965, Feb. 9, 190; 95Da33092, Nov. 14, 1995; 2000Da38292, supra). However, in a case where one accident causes a lump sum loss on the subject matter of insurance and property other than the subject matter of insurance, subrogation of an insurer under Article 682 of the Commercial Act, which is premised on legal relations arising from an insurance contract, shall not apply to the subject matter of insurance, and in a case where the insured suffers loss from an insured’s damage to the subject matter of insurance.

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

1) The Plaintiff concluded an insurance contract with the Dong Fire & Marine Insurance Co., Ltd. (former D non-life insurance company) and the Plaintiff’s store as the subject matter of insurance.

2) Since then, a fire that occurred during the roof reinforcement construction of a building owned by the Defendant destroyed not only the goods within the Plaintiff’s store but also the goods within the Plaintiff’s temporary warehouse. The Plaintiff suffered damages of KRW 189,251,564, the value of the goods within the Plaintiff’s store, which is the subject matter of insurance, as well as damages of the goods within the Plaintiff’s temporary warehouse, which is not the subject matter of insurance.

3) The Plaintiff was paid KRW 189,251,564 as insurance money only for the damages incurred from the insurance subject matter from the East Fire Marine Insurance Co., Ltd.. In light of the aforementioned legal doctrine, the foregoing factual basis is examined as seen earlier. The instant fire incurred not only the Plaintiff’s stores, but also the goods within the Plaintiff’s temporary warehouse, which are not the subject matter of insurance. The Plaintiff was fully paid for the damages incurred from the goods within the Plaintiff store, which are the subject matter of insurance, and thus the Defendant is not entitled to claim compensation for the said damages any longer. On the other hand, the Plaintiff may claim compensation to the Defendant as much as the Defendant’s damages incurred from the property, etc.

Nevertheless, on the grounds indicated in its reasoning, the lower court did not distinguish whether the subject matter was covered, and determined that the Plaintiff may claim for the total amount of damages to the Defendant on the ground that the amount of damages remaining after the Plaintiff’s total amount of damages exceeds the Defendant’s total amount of damages. In so determining, the lower court erred by misapprehending the legal doctrine on the amount of damages that the insured may claim against a third party, in cases where the insured was paid insurance money with respect to the subject matter due to an accident caused by a third party’s act, and the insured was incurred in all property other than the subject matter and the subject matter of insurance.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Lee Dong-won

Justices Park Il-san