Seoul High Court Decision 200Na1448 decided May 1, 200

Samsung Fire and Marine Insurance Co., Ltd. (Law Firm Mapyeong, Attorneys Lee Woo-won, Counsel for plaintiff

January 23, 2014

Incheon District Court Decision 2012Gahap965 Decided June 27, 2013

1. Of the judgment of the court of first instance, the part against the defendant in excess of the money ordered to be paid below is revoked, and the corresponding plaintiff's claim is dismissed.

The defendant shall pay to the plaintiff 138,770,450 won with 5% interest per annum from April 15, 2012 to March 13, 2014, and 20% interest per annum from the next day to the day of full payment.

2. The defendant's remaining appeal is dismissed.

3. One-third of the total costs of the litigation shall be borne by the Plaintiff, and two-thirds by the Defendant respectively.

The defendant shall pay to the plaintiff 204,698,063 won with 5% interest per annum from April 5, 2012 to the service date of the written application for conciliation of this case and 20% interest per annum from the next day to the day of full payment.

The part against the defendant in the judgment of the court of first instance shall be revoked, and the corresponding plaintiff's claim shall be dismissed.

1. Basic facts

The following facts are not disputed between the parties, or may be acknowledged by taking into account each description of Gap evidence 1, 2, and Eul evidence 1, 2, 4, and 8, and the overall purport of the pleading in video.

A. Nonparty 1 (the Nonparty in the judgment of the Supreme Court) leased the 1st floor of the 3rd floor located in Bupyeong-si, Seocheon-si ( Address omitted) (hereinafter “instant building”) and operated a business manufacturing mobile phone parts, etc. from this place with the trade name “○○○○”. The Plaintiff leased the 2 and 3th floor of the said building and carried on the same kind of business. On April 5, 2012, the fire (hereinafter “the instant fire”) occurred in the said building and destroyed the entire building.

B. On April 5, 2012, the vice fire-fighting unit arrived at the fire site at around 17:51, and completed fire-fighting work at around 19:05 on the same day. On the same day, the fire-fighting unit was conducted on the same day and the following day. Of the on-site investigation prepared by the vice fire-fighting unit, the parts related to the point of occurrence of fire and the causes of fire are as follows:

According to the statement of Non-Party 2 (Y, 40 years old), the first floor factory product inspection room and warehouse was launched at the first floor, and the vice president non-party 3 (Nam, 45 years old) was working in the above place and tried to extinguish by using fire extinguishers around the past, but failed. The point of combustion is presumed to be the first floor product inspection room and warehouse of the factory, such as the statement by the burning shot, the fire extinguishing room, and the related person. The point of combustion is presumed to be the first floor product inspection room and warehouse of the factory, such as the statement by the burning shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot shot, and the fact that the combustible materials that can easily be burned from the nearby combustible materials are discovered, etc. at the point of combustion and it is presumed to be shot shot shot shot shot shot s.

C. On April 9, 2012, the Gyeonggi Provincial Police Agency prepared a report to the effect that “the first point of origin is presumed to be around the books inside the inspection room of the first floor ○○○○○○○○○○○○, and the cause of origin is presumed to be a fire by fire or electric heat, but a comprehensive judgment is required after the results of the appraisal by the National Scientific Investigation Agency.”

D. On May 30, 2012, the National Institute of Scientific Investigation published the following results of appraisal by analyzing the heaters, marsens, water purifiers residues, and electric wires collected at the fire site by the Busan High Police Station.

The remaining damage of the heatr and water purifier contained in the main text is seriously damaged and it is not possible to confirm whether the fire works at the time of the fire, and there is no electrical characteristics that can be related to the generation of the fire. 2. There is no question as to whether there is a melting trace by heat in many parts of the electric turg, but the electrical surging has been formed before the heat.

E. The Plaintiff suffered losses caused by the fire in the second and third floors of the instant building, such as various machinery and appliances, facilities, fixtures, movable property, etc.

F. The Defendant is an insurance company which concluded a fire insurance contract with Nonparty 1 to compensate for damage to another person due to a fire that occurred on the first floor of the instant building possessed by Nonparty 1 within the limit of 400 million won and bears the obligation of direct payment to the victim.

2. Summary of the parties' arguments;

A. The plaintiff's assertion

The fire of this case occurred from the first floor of the building of this case occupied by Nonparty 1, and thus, Nonparty 1 is liable to the Plaintiff as the possessor of a structure pursuant to Article 758(1) of the Civil Act or the tortfeasor pursuant to Article 750 of the Civil Act. Therefore, the Defendant is the insurer who entered into a liability insurance contract with Nonparty 1, who directly pays the Plaintiff insurance money for the Plaintiff’s damage caused by the accident of this case pursuant to Article 724(2) of the Commercial Act.

B. Defendant’s assertion

In addition, the point of occurrence and the cause of the instant fire were not clearly revealed, as well as Nonparty 1 did not neglect due care necessary for the prevention of damages as the possessor of the instant fire, such as purchasing a fire extinguishing machine on the first floor of the instant building, keeping it, and conducting fire prevention education to its employees. Even if Nonparty 1 was negligent in the occurrence of the instant fire, the Defendant deposited the full amount of the insurance money, and thus, the obligation to pay the insurance money was extinguished.

Furthermore, even if the Defendant’s obligation to pay insurance money has not ceased, the amount of damages should be reduced in accordance with the Act on the Liability for Fire Caused by Negligence (hereinafter “Liability Act”), the liability of the Defendant is limited in accordance with the principle of equity and the principle of good faith, or the Plaintiff’s negligence has to be offset to the extent that the occurrence and expansion of damages have occurred.

3. Occurrence of liability for damages;

A. Legal doctrine

The defect in the installation and preservation of a structure under Article 758(1) of the Civil Act refers to a state in which a structure fails to meet safety requirements ordinarily for its use. In determining whether such safety requirements are met, it shall be determined on the basis of whether the installer and custodian of the structure has fulfilled the duty to take protective measures to the extent generally required by social norms in proportion to the risk of the structure (see Supreme Court Decision 99Da39548 delivered on January 14, 200, etc.).

(b) Fact of recognition;

In full view of the above evidence Nos. 1, 1, 4, and 8, the following facts or circumstances are acknowledged, and each of the evidence Nos. 7 and 9 (including paper numbers) is insufficient to reverse the recognition.

(1) During the early fire investigation process of the deputy fire fighting center, Nonparty 2, and Nonparty 3, an employee of the “○○○○○○”, stated that the instant fire was first occurred in the inspection room of the first floor of the instant building. Nonparty 1 also stated from the employees that he was aware of the fire that the fire occurred on the first floor of the instant building, and that he was aware of the said fire accident.

(2) The above non-party 2 and 3 stated that the "○○○○ employee was engaged in the work while turning the electrical distress in the above inspection room, and as a result of the appraisal by the National Scientific Investigation Institute, the remaining damage from the electrical distress was seriously destroyed to the extent that it is difficult to verify the cause of the fire. The Defendant’s report prepared by the said National Scientific Investigation Institute on the grounds that the place and cause of the fire in this case were unknown is not the cause of the said electrical accident, but the said remaining damage which was seriously destroyed cannot be confirmed as to whether the electrical problem in the relevant remaining part is the cause of the fire.

(3) A report on the results of a fire site identification prepared by the Gyeonggi Provincial Police Agency also states that “the first witness stated to the effect that the flame was spread in the vicinity of the first floor inspection room,” and that “related persons used the heat in the said inspection room.”

(4) After investigating the fire site and investigating the fire site, the vice fire fighting unit and the vice fire fighting station were commonly presumed to have caused a fire on the first floor of the pertinent building due to the electrical distress or its reproduction heat.

(5) The inspection room of the first floor of the instant building was used as a warehouse. After the instant fire, it appears that he/she used or stored easily inflammable articles, such as the structural frame, paper stuff, and partitions, which were shot around the said electric disaster, by discovering the residues of combustible materials, etc., in the vicinity of the electric disaster.

(6) At the time of the instant fire, the employees of the “○○○” came to have started to extinguish the fire by using a fire extinguisher, but eventually failed, and thereafter, the number of the instant buildings was expanded to the end.

(7) At the time, the said inspection room did not properly install a device that prevents fire expansion, such as fire doors and fire alarm devices, and the instant building was constructed as a sandd position panel material, and was used as a factory with various mechanical devices, and once a fire occurs, the risk of spreading to the entire building was high.

C. Determination on the cause of the claim

In light of the above facts and circumstances in light of the above legal principles, the first place of occurrence of the instant fire appears to have been used in the inspection room of the first floor of the instant building. In addition, as a result of Nonparty 1, the occupant of the instant building, failed to take protective measures to the extent generally required by social norms in proportion to the risk of the structure kept therein, it is reasonable to deem that the instant fire was caused by the said defect.

Therefore, barring any other circumstances, the Defendant is liable to compensate the Plaintiff for the damages incurred by the instant fire pursuant to Article 724(2) of the Commercial Act, as an insurer that concluded a liability insurance contract with Nonparty 1.

D. Judgment on the defendant's assertion

(1) First, the Defendant asserts that, as the possessor of the first floor of the instant building, Nonparty 1 is exempt from liability for damages because he fulfilled due care necessary to prevent fire, such as having a fire extinguishing machine and providing education on fire prevention, etc., and according to the respective descriptions of the evidence Nos. 9 and 11 (including each number), it is recognized that the fire extinguisher, indoor fire hydrant, automated fire detection machine, escape guide sign, etc. were installed on the first floor of the instant building; Nonparty 1 trained the employees of the instant building with the method of using the fire extinguishing machine and simple fire measures; and that employees, including Nonparty 4, etc., started to extinguish by using the fire extinguishing machine at the time of the occurrence of the instant fire.

However, in light of the facts and circumstances described in paragraphs (5), (6) and (7) of Article 3-2, the above facts alone are insufficient to deem that Nonparty 1 fulfilled the duty of care to prevent damage, and there is no other evidence.

(2) The Defendant asserts that the liability for the Plaintiff was extinguished due to the following deposit. The Defendant’s payment limit of insurance money to be borne by the Defendant under an insurance contract with Nonparty 1 is a maximum of 40 million won. The limitation of liability remaining after paying insurance money of KRW 70,239,126 to Nonparty 5, who is the victim of the instant fire and the owner of the instant building, is KRW 329,760,874 ( KRW 40 million - 70,239,126). However, according to the Plaintiff and Yulil Insurance Co., Ltd.’s provisional attachment of the damage claim and indemnity claim against Nonparty 1’s insurance claim against each Defendant on July 8, 2013, the Defendant deposited KRW 329,760,874, the total amount of insurance money claims seized under Articles 291 and 248(1) of the Civil Execution Act.

In the event that the defendant company deposits the execution for reasons of the competition of seizure in excess of the claim subject to attachment, the insurer shall not pay the whole or part of the insured amount to the insured before receiving compensation from a third party for any loss caused by an accident attributable to the insured. Thus, the insurer cannot set up against the victim who has a direct right to claim the insurance amount against the insured before the third party receives compensation from the insured (see Supreme Court Decision 9Da47235 delivered on December 28, 199).

In light of the above legal principles, even if Nonparty 1 made an enforcement deposit on the ground of competition with the Defendant on the claim for insurance money against the Defendant according to the insurance contract with the Defendant, this is merely the Defendant’s own waiver of the right to refuse the claim for insurance money against Nonparty 1, the insured, thereby making double payment risk burden, and it cannot be set up against the Plaintiff who has a direct right to claim against the Defendant on the ground of the above enforcement deposit. Accordingly, the Defendant’s above assertion has no legal grounds.

(3) Furthermore, the defendant asserts that it is necessary to reduce liability based on the de facto liability law.

Therefore, Article 2 of the Health Units and Fire-Fighting Responsibility Act provides that "this Act shall apply only to claims for damages against the part caused by combustion in the event of a fire caused by fire." The Fire-Fighting Responsibility Act does not apply directly to a fire, i.e., a fire, which constitutes an integral part with a point of combustion, not damage caused by burning. However, according to each of the above evidence Nos. 1 and Nos. 1, the first floor of the instant building leased by Nonparty 1, and the second, third floor of the instant building leased by the Plaintiff as the upper floor and lower floor of the instant building leased by Nonparty 2, and third floor of the instant building leased by the Plaintiff to the sandd Location Panel, and thus, it cannot be deemed that the Plaintiff’s workplace and machinery, equipment, facilities, fixtures, movable property, etc. stored inside the said workplace are damage caused by combustion after the fire.

Therefore, the defendant's assertion that the plaintiff's damage was caused by the burning of the fire of this case is without merit.

(4) However, comprehensively taking account of the overall purport of arguments and arguments set forth in Gap evidence Nos. 1 and 2, Eul evidence Nos. 1 and 11 (including paper numbers), as seen earlier, the following facts or circumstances were revealed. ① The building was composed of a sandd position panel vulnerable to fire, and the building Nos. 2 and 3 were burning the entire building for a short time due to high inflammable substances such as pets and shoess, and it is somewhat harsh to ask the non-party Nos. 1, who is the lessee of the first floor among the building owners of the building of this case, for all responsibility. ② The plaintiff’s workplace clearly revealed that the fire was vulnerable to the fire, but the fire-fighting equipment of the second floor of the building of this case was considerably less than the first floor, which was located at the time of the fire-fighting of this case, and it appears that the fire-fighting system of the second floor of this case did not have been able to spread the fire-fighting equipment of this case, and even if the fire was discovered by negligence, it appears that the fire-fighting equipment of this case was no more likely to spread.

Considering the above circumstances, the Plaintiff’s mistake appears to have contributed to the expansion of the Plaintiff’s damages caused by the instant fire, and the burden of the Plaintiff to Nonparty 1, the insured by the Defendant, is deemed inappropriate in light of the ideology of the damage compensation system, i.e., equitable apportionment of damages, thereby limiting the Defendant’s damage liability ratio to 80%.

4. Scope of liability for damages

The fact that the Plaintiff suffered losses caused by the fire in the second and third floors of the instant building, such as various machinery, appliances, facilities, fixtures, movable assets, etc., and the fact that the value of the inventory assets at the time of the fire is equivalent to KRW 170,963,063, among the above previously stored goods, is recognized. The fact that the total market value at the time of the fire in the other machinery, appliances, fixtures, etc. other than the above inventory assets (which was not covered by the Plaintiff’s separate fire insurance), out of the previously stored goods, exceeds KRW 40,000,000,000,000,000,000 won, is not disputed between the parties. Meanwhile, the Plaintiff is a person who received insurance money of KRW 30,000,000 from the insurance company that concluded with the Plaintiff.

Therefore, the defendant is obligated to pay to the plaintiff 138,770,450 won [170,963,063 won + 80%] - 30,000 won, and to pay damages for delay calculated at each rate of 20% per annum as stipulated by the Civil Act from April 5, 2012, which is the date of the fire occurrence, to the plaintiff from April 13, 2014, until March 13, 2014, which is the date of the decision of the court of first instance, to the extent that the defendant's obligation to perform is reasonable to resist the existence and scope of such obligation.

5. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claims are dismissed without merit. Since the part against the defendant who ordered payment in excess of the above recognized amount among the judgment of the court of first instance that partially different conclusions is unfair, it is so revoked, and the plaintiff's claim corresponding thereto is dismissed, and the defendant's remaining appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges exhaustion fever (Presiding Judge) Kim Jong-chul