2015 Ghana 165872 Insurance proceeds, etc.

1. A;

2. B

[Judgment of the court below]

1. C Stock Company:

2. D;

3. E.

4. F;

[Judgment of the court below]

November 30, 2016

January 11, 2017

1. Of the instant lawsuit, the Plaintiff’s claim of KRW 10,000,000 shall be dismissed respectively.

2. The Defendants jointly and severally pay to Plaintiff B 3,462,745 won with 5% interest per annum from May 11, 2010 to January 11, 2017, and 15% interest per annum from the next day to the day of full payment.

3. The plaintiff B's remaining claims against the defendants are dismissed.

4. Of the litigation costs, 60% of the portion arising between the Plaintiff B and the Defendants shall be borne by the Plaintiff B, and the remainder 40% by the Defendants, respectively, and the portion arising between the Plaintiff A and the Defendants shall be borne by the Plaintiff A.

5. Paragraph 2 can be provisionally executed.

Defendants jointly and severally pay to Plaintiff B 17,655,090 won, 5,000,000 won to Plaintiff A, and 15% interest per annum from May 11, 2010 to November 24, 2016, respectively, for each of the above amounts, from May 24, 2010 to November 24, 2016, and for each of the above amounts.

1. Basic facts

A. On May 1, 2010, when Defendant F and E were enrolled in the H High School located in Gangnam-gu Seoul Metropolitan Government, Defendant D, at night, 19:30 on May 11, 2010 and around 20:00, string the night-time autonomous learning at the same school-friendly Plaintiff B and the above school-friendly Plaintiff B, who was employed by the camping department in the turdy field in the turdy field in the same school-friendly Plaintiff B and the above school-friendly Plaintiff D were bleeped with the inside part of the Plaintiff B as they were, and Defendant D suffered injury, such as the Plaintiff B’s balone, the upper part of the left side, the stalle, and the saleth (the accident in this case hereinafter referred to as “the accident”).

B. Meanwhile, Defendant C Co., Ltd (hereinafter “Defendant Co., Ltd”) and Defendant E concluded an insurance contract of “I” with Defendant E and the insurance period from July 30, 2009 to July 30, 206 (hereinafter “instant insurance contract”) and applied the “Special Terms and Conditions for Family Living Compensation” to the instant insurance contract. According to the aforementioned Special Terms and Conditions, the insured (including the spouse of the insured and unmarried children, etc. who live with the insured) are liable for physical disability due to a sudden accident attributable to their daily life, the Plaintiff shall compensate the Plaintiff, and the victim may directly claim payment of the insurance money to the Plaintiff.

C. Since then, Plaintiff B and its mother filed a lawsuit against the Defendants for damages of 0.20% (2.0% of the above damages for 0.0% of the total damages for 0.0% of the damages for 20.0% of the above damages for 30.0% of the damages for 20.0% of the above damages for 30.0% of the damages for 30% of the damages for 20.0% of the damages for 30% of the damages for 20.3% of the damages for 20% of the damages for 20.3% of the damages for 3 years and for 30% of the damages for 30% of the damages for 20.3% of the damages for 5% of the damages for 30% of the damages for 30% of the damages for 40.0% of the damages for 30% of the damages for 30% of the damages for 5% of the damages for 29.3% of the damages for 2019% of the damages for treatment and 29.4% of the damages for 20.2.2.

【Ground of recognition】 The fact that there has been no dispute, entry of Gap's 1 through 16 (including each number), the purport of the whole pleadings

2. Summary of the plaintiffs' claims

The Defendants are liable for damages sustained by the Plaintiffs due to the instant accident. From March 20, 2015 to March 20, the Defendants are jointly and severally liable for the inspection and treatment of brain in which the outbreak of the instant accident occurred from around March 20, 2015. Accordingly, the Defendants are jointly and severally liable for the payment of KRW 17,65,00 in total, KRW 17,65,000 in compensation, and KRW 5,00 in compensation, KRW 5,000 in compensation, and KRW 5,00 in compensation, KRW 5,00,00 in compensation, and damages for delay from the date of the instant accident to the date of the instant accident.

3. Determination as to the defendants' defense prior to the merits

A. Summary of the defense prior to the merits

The defendants have asserted that the part of the claim of consolation money in this case is contrary to the res judicata of the preceding lawsuit.

B. Determination

Unless a lawsuit demanding performance of part of a claim is brought and the remainder is reserved and only a part of the claim is claimed, res judicata of the final and conclusive judgment extends to the remaining remaining claim. Therefore, the remainder cannot be separately claimed (see Supreme Court Decision 2013Da96165, Jul. 27, 2016).

With respect to the plaintiffs' claim for consolation money and its delay damages, as seen earlier, the plaintiffs filed a claim for consolation money of KRW 30,000,000 (Plaintiff B), 10,000,000 (Plaintiff A), respectively, in the previous lawsuit of this case, and received some rulings. The judgment becomes final and conclusive. However, unlike the active damages in the previous lawsuit of this case, there is no evidence suggesting that the plaintiffs only claim for consolation money and its delay damages due to the accident of this case and clearly state the remaining claims by reserving the part of the claim and reserving the remainder. However, the plaintiffs' claim for consolation money of this case is identical to the purpose and cause of claim in the previous lawsuit of this case. Even if the plaintiff B's occurrence occurred again after the previous lawsuit of this case, in light of the contents of the appraisal result implemented in the previous lawsuit of this case, the progress of the previous lawsuit of this case, and the contents of the plaintiffs' previous claims, it cannot be deemed that the plaintiffs have suffered significant changes in circumstances that could not occur at the time of the closing of pleadings of this case.

Therefore, since res judicata of the final and conclusive judgment of the previous suit of this case extends to all the consolation money and its delay damages according to the accident of this case, all of the claims for the remaining parts are unlawful as it is in conflict with res judicata of the final and conclusive judgment of this case.

4. Determination on the merits of Plaintiff B’s claim for future medical expenses

A. The occurrence of damages liability against the plaintiff B

1) Grounds for liability

In light of the circumstances of the accident in this case, the accident in this case occurred due to Defendant D’s breach of duty of care, Defendant F, and E’s breach of duty of care in protecting and supervising Defendant D’s parents. Thus, Defendant D is a tort, Defendant F, and E are liable to jointly compensate for the damages suffered by Plaintiff B as the guardian and supervisor, and Defendant Company is liable to pay the insurance proceeds of the accident in this case to Plaintiff B according to the insurance contract in this case.

2) Limitation on liability

However, there was an error that did not promote the safety of the Plaintiff B, such as gleeping, without being equipped with the protective equipment, and such negligence of the Plaintiff B was caused by the occurrence or expansion of damages caused by the instant accident. Therefore, in calculating the amount of damages to be compensated by the Defendants, it is reasonable to deem that the degree of such negligence is 30% in light of the above facts, and therefore, it is limited to the remaining 70% of the amount of damages to be compensated by the Defendants.

B. Scope of liability for damages

The damage below is the remainder of the damage under the judgment of the court of the instant case in which Plaintiff B explicitly claimed part of the claim, and is related to the damage incurred from November 25, 2015, which was three years after the date following the date of closing the argument of the instant prior suit.

(a) Expenses for medical treatment: 741,343 won;

A) According to the overall purport of each of the branches and arguments of Gap evidence Nos. 3 through 8, 9, 14 through 16 (including each of the numbers), the following medical expenses are recognized from November 25, 2015 to November 23, 2016.

A person shall be appointed.

A person shall be appointed.

B) However, when a victim, who received insurance benefits under the National Health Insurance Act, claims for damages against a third party, and when the victim’s negligence competes with the occurrence of such damage, the amount of the charges paid by the National Health Insurance Corporation within the remaining amount after offsetting the victim’s negligence from the total medical expenses, including the charges borne by the National Health Insurance Corporation and the charges borne by the victim (see, e.g., Supreme Court Decision 2002Da50149, Dec. 26, 2002). As such, the amount equivalent to the medical expenses paid by the National Health Insurance Corporation out of the remainder remaining after offsetting the victim’s negligence, shall be deducted from the total medical expenses

C) In the instant case, the Plaintiff’s total amount of KRW 4,879,619 was incurred (i.e., KRW 2,210,090 + KRW 2,674,389 of the National Health Insurance Corporation + KRW 2,674,389 of the Plaintiff’s charge). As seen earlier, the Plaintiff’s negligence was 30%. As such, the amount of the pre-paid medical fee that the Defendants are liable to compensate for is KRW 3,415,73 (i.e., KRW 4,879,619 + KRW 70%). However, the amount of the National Health Insurance Corporation’s charge 2,674,389 is within the scope of KRW 3,415,733, and thus, the amount of KRW 2,674,389 should be deducted from the amount of

D) Limitation of liability and the charges to be reimbursed by the National Health Insurance Corporation: Won 741,343 (=3,415,733 - 2,674,389)

(b) Future treatment costs: 2,721,397 won;

A) According to the evidence adopted earlier and the result of the physical appraisal entrustment to K Hospital of this Court and the purport of the entire pleadings, it is recognized that the required fact is recognized that the medication of anti-competitive medication (10,000 won per month), the outpatients (10,000 won per month) and the blood test (300,000 won per year every three times following the date of the closing of the argument in this case) for at least three years in the future. The Plaintiff considered that the above treatment was spent from December 1, 2016, which is the day following the date of the closing of the argument in this case, and that the treatment expenses to be paid by the Plaintiff for three years thereafter (20,000 won until November 30, 2019) shall be the total sum of the treatment expenses to be paid by the Plaintiff as of the date of the accident in this case (20,000 won per month).

A person shall be appointed.

A person shall be appointed.

B) As seen earlier, inasmuch as Plaintiff B’s negligence is 30%, the Defendants’ future treatment costs for the three-year period that the Defendants ought to pay upon setting-off by taking account of such negligence are KRW 2,721,397 (=3,887,710) x 70%).

C. Sub-decision

Therefore, the Defendants jointly have a duty to jointly file a claim against the Plaintiff B regarding the existence and scope of the Defendants’ performance obligation from May 11, 201, 2010, which is the date of the occurrence of the accident, to the extent that the Defendants, from May 11, 2017, are 5% per annum as stipulated in the Civil Act until January 11, 2017, and 15% per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the following day to the date of full payment.

5. Conclusion

Therefore, among the lawsuit of this case, the part of the claim of the plaintiff A and the claim of the plaintiff B is unlawful, each of them is dismissed. The claim for damages against the plaintiff B's active damages is justified within the scope of the above recognition, and the remainder is justified, and it is dismissed as it is so decided as per Disposition.

Present allocation of judges