Samsung Fire and Marine Insurance Co., Ltd. (Law Firm Gyeongsung, Attorney Kim Young-young, Counsel for defendant-appellant)

Han Lan Insurance Co., Ltd. (Attorney Kim Jae-young, Counsel for the plaintiff-appellant)

October 18, 2011

Seoul Central District Court Decision 2011Da3778 Decided August 11, 2011

1. The part of the judgment of the court of first instance against the plaintiff, which orders payment below, shall be revoked.

2. The defendant shall pay to the plaintiff 49,591,956 won with 5% interest per annum from August 3, 2007 to November 1, 201, and 20% interest per annum from the next day to the day of full payment.

3. The plaintiff's remaining appeal is dismissed.

4. 1/10 of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

5. Paragraph 2 can be provisionally executed.

The judgment of the first instance is revoked. The defendant shall pay to the plaintiff 51,391,956 won with 5% interest per annum from August 3, 2007 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the full payment date.

1. Basic facts

A. On October 24, 2005, the Plaintiff is an insurer which entered into a fire insurance contract with Nonparty 1 and the insurance period from October 16, 2005 to October 16, 24, 2006 with respect to the facilities and fixtures within the Osan-si (hereinafter “instant store”) operated by Nonparty 1 and Nonparty 1 (hereinafter “the instant store”). The Plaintiff is an insurer who entered into a fire insurance contract with the subject matter and insurance amount of the insurance amount of KRW 100,000,000 for facilities, and KRW 3,000 for the collection fixtures, and KRW 3,00,000 for the collection fixtures.

B. On December 31, 2009, the Defendant Co., Ltd. was the insurer that concluded a gas accident liability insurance contract and business liability insurance contract with Nonparty 2, 4, etc. (hereinafter “○○ Gas”) operating liquefied petroleum gas sales chain used at the instant store (hereinafter “○○ Gas”).

C. On December 13, 2004, Nonparty 1 entered into a gas safety supply contract with the instant store to be supplied with liquefied petroleum gas used at the instant store and received liquefied petroleum gas. On August 8, 2006, the leaked liquefied petroleum gas gas from the instant store was explosiond by an incombustibility source and fire occurred. As a result, the inside part of the instant store was destroyed by fire, and the house was destroyed, and Nonparty 3 suffered injuries, such as multiple-explosive heat, etc. (hereinafter “instant accident”). As a result of an accident investigation, the cause of the instant accident was presumed to have been gas leakage to the extent of 3/1,00 of the intermediate gas leakage, which was installed in the pipe connected to the gas tank installed at the instant store to the main use of the pipe.

D. From December 28, 2006 to October 2, 2007, the Defendant filed a claim for reimbursement against Nonparty 1 after paying the water damage other than Nonparty 1, and the agreed amount and treatment expenses due to the injury of Nonparty 3. The appellate court determined that the negligence regarding the instant accident was 140% and 60% of ○○ Gas (Seoul High Court Decision 2009Na14359, Oct. 9, 2009).

E. Meanwhile, based on the result of the damage adjustment by a adjuster, the Plaintiff calculated the damage incurred by Nonparty 1 due to the instant accident as KRW 82,653,260 in the case of facilities, KRW 31,934,332 in the case of household fixtures, and KRW 31,934,32 in the case of household fixtures, according to the said fire insurance contract, paid KRW 40,000 in the case of insurance money to Nonparty 1 on July 27, 2007, and KRW 45,653,260 in the case of facilities, which is the total amount of insurance money under the said fire insurance contract, and KRW 82,653,260 in the case of 10,00,000 in the case of the insurance money for the facilities and KRW 3,00,000 in the case of household fixtures.

[Ground for Recognition: Facts without dispute, Gap evidence 1 through 5, Gap evidence 6-1 and 2, the purport of the whole pleadings]

2. Determination on the cause of the claim

A. According to the facts acknowledged earlier, the Plaintiff paid insurance money to Nonparty 1, thereby acquiring the right to claim damages against Nonparty 1’s Defendant (the right to claim direct compensation under Article 724(2) of the Commercial Act) by subrogation of the insurer. Therefore, barring any special circumstance, the Defendant is obligated to pay to the Plaintiff the amount equivalent to the percentage of ○○ Gas out of the insurance money that the Plaintiff paid to Nonparty 1 due to the instant accident.

B. Scope of subrogation

According to the facts established earlier, since the insurance money that the Plaintiff paid to Nonparty 1’s facilities due to the instant accident was paid in full as 82,653,260 won, the Plaintiff is entitled to full subrogation of 49,591,956 won (82,653,260 won x 60%) equivalent to the fault ratio of ○○ Gas. However, since the insurance money that the Plaintiff paid with respect to the household fixtures was part of 31,934,332 won, and 32 won, the Plaintiff may subrogate Nonparty 1’s right to claim damages only to the extent that it does not infringe the rights of Nonparty 1, the insured, to the extent that it does not infringe on the rights of Nonparty 1. In this part, it is reasonable to view that Nonparty 1 did not receive compensation from the Plaintiff (31,934,332 won-3,000 won-2,2934,2932 won).

3. Judgment on the defendant's defense, etc.

A. Nonparty 1’s assertion that the right to claim damages has already expired

1) As to this, the Defendant already deducted the damage claim against the Defendant by Nonparty 1 in the previous claim for indemnity amount between Nonparty 1 and the Defendant. In addition, the Defendant, around June 22, 2006, prior to the Plaintiff’s payment of the insurance money to Nonparty 1, concluded a set-off agreement with Nonparty 1 as the claim for damages against the Defendant by setting the claim for damages against Nonparty 1. Thus, the Plaintiff asserted to the effect that the damage claim against the Defendant by Nonparty 1 was not acquired by subrogation by the insurer.

2) On July 27, 2007 and August 3, 2007, the fact that the date on which the plaintiff paid insurance money to the non-party 1 is the date on which the plaintiff paid the insurance money to the non-party 1 is entitled to claim compensation against the non-party 1 by subrogation, and the plaintiff, who is not a party to the judgment, can claim compensation against the non-party 1 on the premise that the plaintiff's right to claim compensation against the non-party 1 has no legitimate authority to claim compensation against the non-party 1, since the plaintiff's right to claim compensation against the non-party 1 is deducted from the whole purport of pleading in the statement of the evidence No. 4 (the claim for compensation against the non-party 1) after August 3, 2007 when the plaintiff paid the insurance money to the non-party 1 (the claim for compensation against the non-party 1).

3) In addition, the entries of the evidence Nos. 1 through 6 and 7-1 through 15 are insufficient to recognize that there had been a set-off agreement between the plaintiff and the non-party 1 before paying the insurance money to the non-party 1, and there is no other evidence to support it. Thus, this part of the defendant's assertion is without merit.

(b) Extinctive prescription defense

1) As to the above claim of the plaintiff, since the defendant defense that the claim for damages against the defendant by the non-party 1 acquired by the plaintiff was extinguished by the prescription, it is reasonable to see that the non-party 1 became aware of the damage caused by the accident of this case and the identity of the perpetrator on August 8, 2006, which is the date of the accident. The plaintiff's claim of this case was filed on January 5, 201, which is three years after the lapse of the lawsuit of this case, barring any special circumstance, the above claim for damages had already been extinguished by prescription before the lawsuit of this case was filed.

2) On January 21, 2009, before the expiration of the extinctive prescription period, the Plaintiff re-claimed that the statute of limitations was interrupted since the Defendant approved the above debt owed by the Defendant to the Plaintiff on January 21, 2009, which was prior to the expiration of the extinctive prescription period. As such, approval as grounds for interruption of the statute of limitations is established by indicating that the obligor, who is the party to the right to receive the extinctive prescription benefit, is aware of the existence of the right to the obligee or his agent (see Supreme Court Decision 2009Da9105, Apr. 29, 2010, etc.). According to the evidence evidence evidence No. 7, the Defendant decided to seek compensation from the Plaintiff on January 21, 2009 in accordance with the outcome of the lawsuit claiming compensation against Nonparty 1 and the Korea Gas Safety Corporation. However, according to the judgment of the lawsuit claiming compensation for damages against Nonparty 1, the Defendant’s claim for compensation for damages against the Plaintiff’s remainder of the statute of limitations period, and its defense against the Plaintiff 10.

4. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 49,59,956 won and its final payment of insurance money from August 3, 2007 to November 1, 201, which is deemed reasonable to dispute over the existence and scope of the defendant's obligation to pay 5% per annum under the Civil Act and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment. Thus, the plaintiff's claim of this case is accepted within the above recognition scope and the remaining claims are dismissed for lack of justifiable grounds. Since part of the part against the plaintiff in the judgment of the court of first instance differs from this, the part of the plaintiff's appeal was partially accepted and the defendant was revoked, and the remaining part of the judgment of the court of first instance is justifiable, and the remaining part of the judgment of the court of first instance is dismissed for the reason that the plaintiff's appeal is dismissed. It is so decided as per Disposition.

Judge Jin-hun (Presiding Judge)