Samsung Fire & Marine Insurance Co., Ltd. (Attorney Jeong Jong-chul, Counsel for defendant-appellant)

Defendant 1 and one other (Law Firm Sejong, Attorneys Yellow-tae et al., Counsel for the defendant-appellant)

November 28, 2012

1. The Defendants shall pay to each Plaintiff 16,375,639 won with 5% interest per annum from March 22, 2011 to January 9, 2013, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit are five minutes, and two of them are assessed against the Plaintiff, and the remainder three of them are assessed against the Defendants, respectively.

4. Paragraph 1 can be provisionally executed.

The Defendants jointly and severally pay to the Plaintiff the amount of KRW 26,476,405 with 5% per annum from March 22, 2011 to May 23, 2012, with 2000 to the delivery date of a copy of the application for modification of the purport of the claim and the cause of the claim, and 20% per annum from the next day to the full payment.

1. Basic facts

A. Nonparty 1 (the Nonparty in the judgment of appeal) concluded a fire insurance contract between the Plaintiff and the Plaintiff with respect to the fourth floor building located in Gwanak-gu in Seoul Special Metropolitan City ( Address omitted) (hereinafter “instant building”), the insurance period from April 8, 2008 to April 8, 2013; and the amount of the insurance coverage is KRW 1,100,000,000 (hereinafter “Plaintiff’s insurance contract”).

B. Defendant 1 leased approximately 95 square meters on the second floor of the instant building and operated △△△△ Branch (hereinafter “instant store”). Defendant Hyundai Marine Fire Insurance Co., Ltd. entered into a comprehensive insurance contract with Defendant Hyundai Marine Fire Insurance Co., Ltd. on fire insurance and facility owners’ liability for damages regarding the instant store and house fixtures (hereinafter “Defendant insurance contract”).

However, around 15:25 on August 20, 2010, the instant building was destroyed by fire at the instant store (hereinafter “the instant fire”), and according to the investigation by fire stations and adjusters, it is presumed that the burning type, which was installed on the right side of the kitchen of the instant store (hereinafter “the instant cooling house”) was generated at the lower part of the beverage cooling house installed on the right side of the instant store (hereinafter “the instant cooling house”), and that the combined vessel is identified on the air condition of the air conditioners and the inside vessels of the instant cooling house, etc., it is presumed that the instant cooling house 1) phenomenon was destroyed by the air condition of the instant cooling house and the burning was carried out by the central tent book of the store of this case.

C. Under the Plaintiff’s insurance contract, the Plaintiff paid KRW 20,00,000 as insurance money, and KRW 13,669,217 as of March 17, 201, including KRW 13,669,217 on the 21st of the same month (damage 17,722,517 on the instant store, and KRW 15,946,70 on the part other than the instant store among the instant building), and received KRW 7,192,812 as the duplicate insurance money of the instant store from Defendant Hyundai Marine Fire Insurance Co., Ltd.

D. Relevant provisions of the Act on the Liability for Fire Caused by Negligence

(2) Upon receipt of a claim under paragraph (1), the court may reduce the amount of damages, taking into account the following circumstances: (i) the cause and scale of the fire; (ii) the subject and extent of the damage; (iii) the cause and extent of the damage; and (iv) the cause and extent of the spread of the fire; and (v) the efforts of the person who is responsible for damage and the victim to prevent further damage; (v) the economic condition of the person responsible for damage and the victim; and (vi) other circumstances to be considered in determining the amount of damages;

[Ground for Recognition: Facts that there is no dispute between the parties; Gap evidence 1 through Gap evidence 7; Eul evidence 1; the purport of the whole pleadings]

2. The parties' assertion and judgment

A. The defendants' duty of indemnity

According to the above facts, Defendant 1 is obligated to pay the remainder of the indemnity amount, excluding the duplicate insurance amount of which the Plaintiff is entitled to mutual aid pursuant to Article 682 of the Commercial Act, based on the management and preservation defects of the store and cooling house (Article 758(1) of the Civil Act), and Defendant Hyundai Marine Fire Insurance Co., Ltd., based on the Defendant insurance contract, and the remainder of indemnity amount of each Plaintiff, based on Article 682 of the Commercial Act.

B. Defense and judgment of the defendants

(1) Defendant Hyundai Marine Fire Insurance Co., Ltd. asserts that ① the damages incurred to the instant store are not liable pursuant to the exemption clause of the Defendant insurance contract, and ② even if the Defendant Hyundai Marine Fire Insurance Co., Ltd. is responsible for household affairs, it is not liable to pay the amount corresponding to the duplicate insurance money to the Plaintiff.

① It is not sufficient to acknowledge the existence of the above exemption clause in the Defendant Hyundai Marine Fire Insurance Co., Ltd.’s assertion solely with the descriptions of evidence Nos. 1 and 1, and there is no other evidence to acknowledge it.

② Also, in the event that the Plaintiff’s right to indemnity against the insurer against the Defendant Hyundai Marine Fire Insurance Co., Ltd. established the right to indemnity against the insurer’s subrogation, each right to indemnity may be exercised first and simultaneously. However, in a case where a right to indemnity is satisfied from one party, the scope of other right to indemnity may be reduced to the portion of the obligor’s liability for indemnity under other right to indemnity out of the remainder other than the satisfactory portion (see Supreme Court Decisions 2009Da42819, Dec. 24, 2009; 2010Da50694, Oct. 28, 2010). As a result, it does not constitute double insurance, and thus, constitutes a defense that the insurer did not establish the insurer’s right to indemnity or that the right to indemnity is absorbed into double insurance.

Therefore, each of the above arguments of the defendant Hyundai Marine Fire Insurance Co., Ltd. is without merit.

(2) The Defendants asserted that Defendant 1 fulfilled the duty of care required by social norms in managing the cooling house of this case, which was provided by an alcoholic beverage supplier without compensation, and thus, the Defendants did not bear any responsibility for the fire of this case. However, the Defendants’ assertion is without merit, on the grounds that there is no evidence to acknowledge this differently.

(3) The defendants asserts that even if the responsibility of the defendants for domestic affairs is recognized, it shall be mitigated by Article 3 of the Act on the Liability for Fire Caused by Negligence.

According to the above facts, the defect in the installation and management of the cooling house in this case by Defendant 1 is considered to be a transitional room, and according to the records of evidence No. 2, the witness Nonparty 2's testimony, Defendant 1 is acknowledged to have been provided with the cooling house in this case from the liquor supplier and used it without compensation, and he cleaning the cooling house in this case more than two weeks per week, and the circumstances such as before the date of the fire in this case, there was an electrical problem in the cooling house in this case or the store in this case, or Defendant 1 used the cooling house in this case to be in conformity with the purpose, the defendants' liability is limited to 70%.

C. Sub-decision

Therefore, the Defendants are obligated to pay to each Plaintiff 16,375,639 won [3,69,217 won paid by the Plaintiff x 70% of the Defendants’ liability ratio] - duplicate insurance money 7,192,812 won in which the Plaintiff is entitled to mutual aid and the amount below won] as requested by the Plaintiff, the Defendants are obligated to pay damages for delay at the rate of 5% per annum under the Civil Act from March 22, 2011 to January 9, 2013, which is the day following the date of payment of the Plaintiff’s final insurance money, and at the rate of 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. The Plaintiff’s remaining claims in excess of this are without merit.

3. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remainder of the claim is dismissed. It is so decided as per Disposition.

Judgment Notarial decoration

Note 1) The phenomenon in which dust, etc. mixed with water as contained in electronic equipment, into which electric currents flows, and in which dusts continue to flow over a long time, an weak electric current into this part is to flow out.

2) The Plaintiff reflected this in this case and claimed only the remainder after deducting duplicate insurance money received from Defendant Hyundai Marine Fire Insurance Co., Ltd.