207da 85726, Confirmation of the existence of an obligation

207 group 172194 (Counterclaim) damages

Bright Insurance Co., Ltd.

Law Firm Young-chul, Attorneys Choi Jong-jin, et al., Counsel for the defendant-appellant

A (87 years old, South)

Attorney Lee Tae-hwan, Counsel for the plaintiff-appellant

March 26, 2009

April 23, 2009

1. On June 14, 2007, around 03:45, in relation to a traffic accident that occurred between the cleaning car of B driver from the two-lanes of the air room in the none-dong-dong-dong-Jakdong-dong-Jakdong-dong-gu, B, and the Defendant (Counterclaim Plaintiff)’s damage liability against the Defendant (Counterclaim Defendant) based on the business car insurance contract entered into between the Plaintiff (Counterclaim Defendant) and C, it is confirmed that the damages liability for the Defendant (Counterclaim Plaintiff) based on the business car insurance contract concluded between the Plaintiff (Counterclaim Defendant) and C does not exist in excess of the part ordering payment under

2. The plaintiff (Counterclaim defendant) shall pay to the defendant (Counterclaim plaintiff) 10,035,115 won with 5% interest per annum from June 15, 2007 to April 23, 2009, and 20% interest per annum from the next day to the day of full payment.

3. The remaining claims of the Plaintiff (Counterclaim Defendant) and the remaining counterclaim claims of the Defendant (Counterclaim Plaintiff) are dismissed, respectively.

4. 20% of the total costs of the lawsuit, including the principal lawsuit and the counterclaim, shall be borne by the Plaintiff (Counterclaim Defendant) and the remainder 80% by the Defendant (Counterclaim Plaintiff) respectively.

5. Paragraph 2 can be provisionally executed.

In relation to the traffic accidents described in the Disposition No. 1, it is confirmed that there is no liability for damages against the Defendant (Counterclaim Defendant; hereinafter the Plaintiff) based on the automobile insurance contract for the business affairs listed in the Disposition No. 1.

Counterclaim: The plaintiff shall pay to the defendant 26,397,872 won with 5% interest per annum from June 15, 2007 to the day of this sentencing, and 20% interest per annum from the next day to the day of full payment.

A principal lawsuit and a counterclaim shall be deemed simultaneously.

1. Occurrence of liability for damages;

The following facts are not disputed between the parties, or acknowledged in full view of the purport of the whole pleadings as to Gap evidence 1 through 3, Gap evidence 4-1 through 10, Gap evidence 5-1 through 18, Gap evidence 7, Eul evidence 1-1 through 13.

A. On June 14, 2007, at around 03:45, the accident B driven a 5 ton cleaning vehicle owned C, and stopped on the two-lanes of the above road without permission in order to load garbage located on the right side of the road into the cleaning vehicle, while driving a two-lane of the cleaning vehicle located on the right side of the road from the Tti tunnel to the boundary of the Tti tunnel. The Defendant did not discover the above cleaning vehicle standing on the front side of the above cleaning vehicle without registration, and did not discover the above cleaning vehicle standing on the front side of the above cleaning vehicle.

B. B and Defendant’s negligence

① The above accident site is a road which is about 400 meters away from a large tunnel after passing through the large tunnel. There were two-lane bus stops, but other vehicles have already parked in the bus stops. At the night, there was no proper view of the view of the driver getting off the bus at night. Thus, even if the above cleaning vehicle stops on the two-lane, it is inevitable to collect garbage located on the right side, the driver of the vehicle driving at the later side is negligent in failing to take safety measures, even though he did not have a duty of care to ensure the identity of the above cleaning vehicle, or to install a work marking board, etc. (the plaintiff's agent is not obliged to take safety measures, and it is difficult for the plaintiff's agent to use the above two-lane road at the time to stop the above cleaning vehicle, etc. at night, and thus, it is difficult to see that the above two-lane road is a separate road from the above-mentioned driver's duty of care as well as the above-mentioned one's own road.

C. The plaintiff's status

The plaintiff is the insurer who concluded the business automobile insurance contract with C by making the above cleaning vehicle as the insured automobile.

D. Limitation on liability

According to the above facts, the plaintiff is liable for the damages suffered by the defendant due to the above accident as the insurer of the cleaning vehicle. Since the defendant is negligent as seen above, it shall be considered in calculating the amount of damages that the plaintiff should compensate, but the ratio of negligence shall be 80% in light of the above facts. Thus, the plaintiff's liability shall be limited to 20%.

2. Scope of liability for damages

In addition to the following separate statements, the same as the statement in the attached Form (Omission) damages calculation table (hereinafter referred to as the "monthly in calculation") shall be included on the side on which the amount is less than, but less than the original and the last month shall be discarded, and the period shall be calculated on a monthly basis

(a) Actual income:

(i)financial assessment of operating capacity;

The actual income shall be calculated based on the amount obtained by multiplying the unit market price of urban common workers by 22 days per month average working days under the investigation report on the actual condition of wages for construction business issued by the Korea Construction Association.

(ii)Operation period;

From the date of the above accident to June 19, 2047

(iii)Hal disability;

(1) 3% for a limited period of two years after the date of preparation of a physical appraisal report ( July 22, 2008) as a result of a follow-up disability caused by the diameter of the 3 balance of the right, and 3% [The classification table of beer and the N-A-3 Application of the Public Service Port N-3 (Vocational Coefficient 4)];

(2) 3% for a limited period of two years after the date of preparation of a physical appraisal report ( July 22, 2008) as a result of a follow-up disability caused by the diameter of the 5 balance of right, and 3% [The classification table of beer, the A-A-3 Application of the Cerves-2 (Vocational Coefficient 4)];

(3) 14% for a limited period of three years after the date of physical assessment ( July 22, 2008) as a result of the follow-up disability caused by the diameter of the right part-hand part-hand part-hand part-hand part-hand part-hand part-time part-time part-time part-time part-time part-time part-time part-time part-time part-time part-time part-time

(4) From the date of the accident regarding the loss of operating capacity to February 29, 2008 when hospitalized treatment was completed, 100% of the 19.08% of the disability with the third balance of the right and the second balance of the 5 balance for a limited period of time until July 22, 2010; and 14% of the 14% of the 14% of the 10th operating capacity from the following day to the date of July 22, 2011 when there exists a temporary disability for three years in the right leg.

(5) Calculation of the current price at the time of an accident: entry in the daily income column in the attached Form (Omission) of the calculation of damages.

[Ground of recognition] Facts without dispute, Eul's evidence Nos. 2 and 3's evidence Nos. 1, 2, Eul's evidence Nos. 4 through 6, each of the physical appraisal results and fact inquiry results with respect to the president of 00 hospital affiliated with the 00 university, the purport of the whole pleadings

(b) Future medical expenses (in the area of plastic surgery): 11,075,717 won (in the light of convenience, it shall be deemed that he/she implements anti-sculatory surgery covering 12,045,370 won around March 27, 2009, which is the day following the closing of argument in this case, and the current price at the time of the accident shall be calculated).

[Reasons for Recognition] The result of physical examination of the Director of the 00 Hospital annexed to the 00 University (Saeong Foreign Department) of this Court, the purport of the entire pleadings

(c) Haking's opening expenses: 2,060,905 won (recognition of an adult nursing for 35 days during the period of hospitalization) [based on recognition] the results of physical assessment of the head of 00 hospital attached to 00 universities of this Court, the purport of the entire pleadings;

(d) Costs of medical treatment: 7,622,368 won (excluding KRW 774,535 won disbursed as physical appraisal costs out of the amount claimed by the defendant);

[Reasons for Recognition] Class B 7, 8, Eul evidence Nos. 9-1 through 4, Eul evidence No. 10-2, Eul evidence No. 11, Eul evidence No. 12-1, 2, Eul evidence No. 12-1, 13, and the purport of the whole pleadings

(e) Set-off of negligence: 80% (see the above paragraph 1.d).

F. Determination on the Plaintiff’s assertion of mutual aid

The Plaintiff asserts that the portion of the Plaintiff’s fault ratio out of KRW 10,230,574 paid by the National Health Insurance Corporation as the Defendant’s medical expenses should be deducted since the National Health Insurance Corporation claims reimbursement against the Plaintiff. However, as long as the National Health Insurance Corporation did not claim reimbursement against the Plaintiff, such possibility may not be deducted as alleged by the Plaintiff. Therefore, the Plaintiff’s assertion is without merit.

(g) Consolation money;

(1) Reasons for taking into account: Defendant’s age, family relation, background and result of the instant accident, degree of negligence, degree and degree of disability, and other various circumstances revealed in the oral proceedings of the instant case.

(b) Amount determined: 2,000,000 won;

G. Sub-determination

Therefore, the plaintiff is obligated to pay to the defendant 10,035,115 won and damages for delay calculated at each rate of 5% per annum under the Civil Act and 20% per annum under the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings from June 15, 2007 to April 23, 2009, where it is recognized that it is reasonable for the plaintiff to dispute about the existence and scope of the obligation to pay to the defendant from June 15, 2007 to the date of the accident in this case.

3. Conclusion

Therefore, the plaintiff's liability for damages against the defendant due to a traffic accident as stated in Paragraph (1) of this Article does not exceed the above recognition amount, and as long as the defendant contests this issue, the plaintiff as the plaintiff has the interest to seek confirmation. Thus, it is confirmed that there is no liability for damages regarding the part exceeding the above recognition amount upon the plaintiff's claim in the principal lawsuit, and upon the defendant's counterclaim claim, the plaintiff has the obligation to pay the above recognition amount to the defendant. Therefore, the plaintiff's claim for the principal lawsuit and the defendant's counterclaim are justified within the above recognition scope, and each of them is dismissed as it is so decided as per Disposition.

Judges’ Republic in English