Korea Labor Welfare Corporation

Defendant 1 and two others (Attorney So Young-young, Counsel for the defendant-appellant)

September 6, 2012

Ulsan District Court Decision 2010Da26645 Decided October 14, 2011

1. The part against the Plaintiff, among the parts against Defendant Samsung Fire and Marine Insurance Co., Ltd. of the judgment of the first instance, is revoked.

Defendant Samsung Fire Marine Co., Ltd. shall pay to the Plaintiff 58,540,473 won with 55% interest per annum from May 7, 2010 to November 22, 2012, and 20% interest per annum from the next day to the day of full payment.

2. The Plaintiff’s remaining appeals against Defendant Samsung Fire and Marine Insurance Co., Ltd. and all appeals against Defendant 1 (Non-Party 2 of the Supreme Court’s judgment) and Defendant 1 (Defendant 2) are dismissed.

3. The costs of appeal arising between the Plaintiff, Defendant 1, and Defendant Samsung Fire Marine Co., Ltd. are borne by the Plaintiff. 30% of the total costs of appeal arising between the Plaintiff and Defendant Samsung Fire Marine Co., Ltd. are borne by the Plaintiff, and the remainder 70% of the costs of appeal

4. Paragraph 1 can be provisionally executed.

The judgment of the first instance is revoked. The Defendants jointly and severally pay to the Plaintiff 79,597,820 won with 5% interest per annum from May 7, 2010 to the last day of service of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of full payment.

1. Basic facts

A. Samsung Petroleum Chemical Co., Ltd. (hereinafter “Tsung Petroleum Chemical”) is a company engaged in the business of manufacturing organic chemical products, etc. The Mez Co., Ltd. (hereinafter “Mez”) is a company engaged in construction works, etc., and the Defendant Sung Korea Transportation Industry Co., Ltd. (hereinafter “Defendant Sung Korea Transportation Industry”) is a company engaged in land cargo handling business, etc.

B. At first, Mez was a “public office” of Samsung Petroleum chemical, and Defendant Samsung Telecommunication was a “customer service team” of Samsung Petroleum chemical, but became an independent business entity which was separated from Samsung Petroleum chemical in around 1998.

C. Even after the completion of each of the above subdivisions, the Mez and the Defendant Telecommunication industry have performed the maintenance and repair of Samsung Petroleum chemical facilities in the case of Samsung Mez through a contract with Samsung Petroleum Chemical every year. In the case of the Defendant Telecommunication industry, the Defendant has performed the shipping of Samsung Petroleum chemical products.

However, since the defendant Telecommunication industry was holding a vehicle, there was no separate contract, but there was a work to transport materials, etc. in the Samsung Petroleum Chemical Plant from time to time at the request of Samsung Petroleum Chemical or Telecommunications.

D. Around September 2007, Mz subcontracted to Taesung F&C Co., Ltd. (hereinafter “T&T”) with a construction period fixed from October 15 to October 22, 2007, 2007, which included a work period for removing valves replacement among Samsung P&T facility maintenance works.

E. On October 15, 2007, Defendant 1, who is an employee of the Defendant Sungdong Industry, driven the vehicle (registration number omitted) owned by the Defendant Sungdong Industry at the request of Mez for work support on October 14:0, 2007, and was negligent in performing the duty of Jeonju as he neglected to transport the valves in a material storage in the Samsung Petroleum chemical plant located in Ulsan Namdong-gu, Ulsandong-gu to a branch where the valve replacement is conducted, while he was negligent in performing the duty of Jeonjuju, Defendant 1, who was an employee of Taesungdong-gu, who was walking on the front side of the said train, got Nonparty 1, who was walking on the road, and subsequently, took the bridge of Nonparty 1, who was over the shock of the said shock with the right wheels of the said vehicle on the left side (hereinafter “the instant accident”).

F. By May 6, 2010, Nonparty 1 paid the industrial accident insurance benefits amounting to KRW 160,715,000, in total, KRW 58,435,010 of temporary disability compensation benefits, medical care benefits amounting to KRW 38,579,320 of disability benefits, and KRW 63,700 of disability benefits amounting to KRW 160,715,00,00 of industrial accident compensation benefits to Nonparty 1, who suffered injuries, such as a brupt and gal damage, in the instant case.

G. Meanwhile, Defendant Samsung Fire Marine Insurance Co., Ltd. (hereinafter “Defendant Samsung Fire”) is an insurer who entered into a comprehensive automobile insurance contract with Defendant Samsung Fire Industry for the above for the above for the instant for the instant for the instant for the instant for the instant for the instant for the instant for the instant for-use.

[Ground of recognition] Facts without dispute, Gap 1 through 8 evidence, Eul 1, 7, and 8 evidence (including each number), each fact inquiry result, the purport of the whole pleadings

2. Occurrence of liability for indemnity; and

A. The parties' assertion

(1) The plaintiff's assertion

① The Defendants are liable for tort damages against Nonparty 1, liability as a motor vehicle operator, liability for payment of insurance money under Article 724(2) of the Commercial Act, etc. As such, the Plaintiff who paid industrial accident insurance benefits to Nonparty 1 may subrogate the right to claim damages against the Defendants, etc. against Nonparty 1 pursuant to Article 87(1) of the Industrial Accident Compensation Insurance Act (hereinafter “Industrial Accident Insurance Act”).

Therefore, the Defendants are jointly and severally liable to pay to the Plaintiff KRW 79,597,820, the amount of damages suffered by Nonparty 1 due to the said accident, and damages for delay.

② Under Article 10 of the Guarantee of Automobile Accident Compensation Act and Article 724(2) of the Commercial Act, Defendant Samsung Fire is obligated to pay the indemnity amount to the Plaintiff within the limit of KRW 60 million based on the liability insurance amount.

Shes argument of the Defendants

At the time of the instant accident, the Taesung Airport, to which Nonparty 1 belongs, was engaged in the work of replacing valves within the Samsung Petroleum Chemical Ulsan Factory, and the Defendant Seongdong Industries, to which Defendant 1 belongs, was engaged in the work of transporting valves at the same place. As such, it is deemed that the Taesung Airport and the Defendant Seongdong Industries were divided into one business, and since the Taesung Airport and the Defendant Sungdong Industries both are industrial accident insurance policyholders, the Plaintiff cannot subrogate Nonparty 1’s claim for damages against the Defendants, etc. under the Industrial Accident Insurance Act.

B. Whether the right to indemnity against the defendant 1 and the defendant 1 has arisen

(1) According to the proviso of Article 87(1) of the Industrial Accident Insurance Act, even if the Korea Workers' Compensation and Welfare Service paid insurance benefits to workers suffering from an accident by dividing it into one business at the same place, if two or more business owners, who are the insured, are unable to subrogate the right to claim damages of workers suffering from an accident. "one business" means that two or more business owners, who are the insured, carry on the same place, and carry on the same business or object within the same risk zone, respectively. On the other hand, even if two or more business owners who are the insured carry on the same place, if the contents of each business are not carried on for the completion of the same business or object, the degree of danger shall vary. Thus, in such a case, it shall not be deemed that one business is carried on in installments (see Supreme Court Decision 95Da27684, Apr. 11, 1997), and "one business" means one of two or more business owners, who are two or more different business owners, and it shall not constitute one of the two or more different business owners (see Supreme Court Decision 20008Da160, respectively.

In the case of Luxembourg, as seen in the above, Mez was engaged in the valve replacement work in Samsung Petroleum chemical factory through the solar air, and the defendant Samsung Shipping industry, the user of defendant 1, was engaged in the work of transporting valves in the above factory from material storage to the place where the replacement work is performed at the request of Mez, so the above two works are in a relationship between the completion of one business called the maintenance of the above factory facilities (see Supreme Court Decision 94Da2925 delivered on October 11, 1994) and Eul evidence 8-1, it can be acknowledged that the defendant Sungdong Industry had already concluded an industrial accident insurance contract with the plaintiff at the time of the above accident.

Therefore, the above accident falls under the case where a disaster occurred to Non-party 1, who is an employee of the Taesung Industrial Complex, due to the act of Defendant 1, who is an employee of the Sungsung Industrial Complex, in the course of dividing it into one business. Thus, the plaintiff cannot subrogate the right to claim damages against Non-party 1's defendant 1 and Seongdong Industrial Complex in accordance with the proviso of Article 87 (1) of the Industrial Accident Insurance Act. The above defendants' assertion pointing this out has merit, and the plaintiff's right to claim damages against the above defendants cannot be accepted.

C. Whether the defendant Samsung Fire has a right to indemnity

(1) According to the main sentence of Article 3 and Article 2 subparagraph 2 of the Act, when a person who operates an automobile for his own sake dies or inflicts injury on another person due to the operation of the automobile, he shall be liable to compensate for the damage, and "operation" refers to the use or management of the automobile in accordance with the use of the automobile regardless of the transport of the person or the article. According to the above facts, the accident of this case can be deemed to have occurred due to the operation of the vehicle for his own use. Thus, the defendant 1 and the defendant Samsung Korea Transportation Industry shall be liable to the non-party 1 for the operation or owner of the automobile under Article 3 of the Act, and the defendant Samsung F&M shall be liable to pay the insurance money to the non-party 1 in accordance with the automobile insurance contract with the defendant Samsung Korea Transportation Industry.

D. Accordingly, Defendant Samsung Fire, as an insurer for the fore-board vehicle, is liable for the damages incurred to Nonparty 1 due to the instant accident, and the Plaintiff who paid the industrial accident insurance benefits to Nonparty 1, may exercise the right to claim damages on behalf of Nonparty 1 to Defendant Samsung Fire within the insurance benefits amount pursuant to Article 87(1) of the Industrial Accident Insurance Act.

Article 87(1) proviso of the Industrial Accident Compensation Insurance Act provides that the Plaintiff’s right to indemnity against Defendant Samsung Fire may also be limited pursuant to the proviso of Article 87(1) of the same Act. However, in the event a traffic accident offender’s liability arises pursuant to Article 3 of the Guarantee of Automobile Accident Compensation Act, the victim’s right to indemnity against the insurer recognized pursuant to Article 10(1) of the Guarantee of Automobile Accident Compensation Act, and Article 724(2) of the Commercial Act refers to the victim’s right to indemnity against the insurer, which is separate from the victim’s right to indemnity against the perpetrator. Thus, even if the Plaintiff’s right to indemnity against Defendant Samsung Fire is limited pursuant to the proviso of Article 87(1) of the Industrial Accident Compensation Insurance Act and Article 724(2) of the Commercial Act, it cannot be deemed that the exercise of the right to indemnity against the insurer directly liable to the victim under the proviso of Article 87(1) proviso of the same Act is limited to the insurer’s right to indemnity against the Defendant Samsung Fire Insurance Co. 2.

3. Scope of indemnity against Defendant Samsung Fire

A. The amount of damages of Nonparty 1

(i) lost earnings;

A) Personal information: male and female on November 16, 1943 and 63 years of age and October at the time of the instant accident.

(b) Occupational category: An engineer qualification;

C) Wages: 95,000 won per day at the time of the accident (in light of each description in the evidence No. 5-1 to No. 5-3, it is difficult to recognize Nonparty 1’s daily wage as KRW 120,000 per day continuously on the basis of each description in the evidence No. 6-1 and No. 2

D) Maximum working age: Three years from the date of an accident.

E) Suspension period: 10% for the period of hospitalization from October 15, 2007 to December 1, 2008, which is the date of the accident, for the period of hospitalization, the rate of loss of labor capacity 100% for the period of hospitalization, and 30% for the period of commuting from December 2, 2008 to March 6, 2010, which is the date of the completion of treatment.

E) 30% of the loss of labor capacity after the suspension period

(g) Total amount: 49,862,708 won (attached Form 1)

2) Medical expenses: 38,579,320 won;

[Ground of recognition] Facts without dispute, Gap 2, 5, 8, 10 evidence, Eul 5 evidence (including provisional number), the purport of the whole pleadings

3) Limitation on liability

A) The ratio of Defendant Samsung Fire’s liability: 75% (the victim and the perpetrator’s age, occupation, place and circumstance of the accident, and the negligence in violation of the duty to prevent the accident of Nonparty 1’s employer, etc.)

b)Calculation (if less than KRW 10);

(1) Lost income during the period of suspension of business: 35,056,552 won ¡¿ 75% = 26,292,414 won.

(2) Actual income after the period of suspension: 4,418,092 won ¡¿ 75% = 3,313,569 won.

(3) Medical expenses: 38,579,320 won ¡¿ 75% = 28,934,490 won

(4) Total amount: 58,540,473 won

(b) Scope of the right of indemnity;

Since the amount of damage of Nonparty 1 is less than the amount of each insurance benefit paid by the Plaintiff to Nonparty 1 (the temporary disability compensation benefit, medical care benefit, and disability benefit), the above amount of damage 58,540,473, which is within the scope of the Plaintiff’s insurance benefit, is the amount that the Plaintiff can claim against Defendant Samsung Fire.

C. The assertion and judgment on the deduction of Defendant Samsung Fire

Defendant Samsung Fire already paid KRW 16,00,000 to Nonparty 1 as damages, and therefore, it is argued that the above amount should be deducted from the indemnity amount. Therefore, considering the overall purport of the pleadings in the statement in Eul evidence No. 6, Defendant Samsung Fire can be recognized as having paid KRW 16,00,000 as damages on June 22, 2010. However, in the situation where the Plaintiff paid the full amount of medical expenses and the temporary layoff benefits exceeding the lost income to Nonparty 1, it is difficult to view the above amount paid to Nonparty 1 as the damages for lost income or the medical expenses. In addition, in the event that an industrial accident occurred due to a third party’s act, the Korea Labor Welfare Corporation that paid the insurance amount has acquired the right to indemnity against the third party within the limit of the insurance benefits paid. Accordingly, the Plaintiff already paid the above insurance benefits to Nonparty 1 by not later than May 6, 2010, and thus, the Plaintiff’s claim for reimbursement against Defendant Samsung Fire cannot be justified.

D. Sub-committee

Therefore, Defendant Samsung Fire is obligated to pay to the Plaintiff the indemnity amount of KRW 58,540,473 as well as damages for delay calculated by applying each rate of 5% per annum as stipulated in the Civil Act from May 7, 2010 to November 22, 2012, which is the day following the day when the Plaintiff’s final insurance benefits were paid after the date of payment of insurance benefits, to the day when the payment of the insurance benefits was made, to the day when the Defendant Samsung Fire claims the existence and scope of its performance obligations.

4. Conclusion

Therefore, the plaintiff's claim against the defendant Samsung Fire is accepted partially within the above scope of recognition, and the remaining claim is dismissed. The plaintiff's claim against the defendant 1 and the defendant Samsung Fire is dismissed as it is without merit. Since the part against the defendant Samsung Fire in the judgment of the court of first instance as to the defendant Samsung Fire is unfair with some different conclusions, the plaintiff's appeal against the defendant Samsung Fire is partially accepted, and the part against the plaintiff as to the defendant Samsung Fire is revoked, and the plaintiff's remaining appeal against the defendant Samsung Fire and the appeal against the defendant Samsung Fire against the defendant Samsung Fire are dismissed as it is without merit.

[Attachment]

Judges Lee Ho-gu (Presiding Judge)