2017 Ghana 10812 Insurance proceeds

1. A;

2. B

3. C

[Judgment of the court below]

[Defendant-Appellee]

D Corporation

Attorney Noh Tae-tae, Counsel for defendant-appellee

Attorney Park J-ho et al.

May 29, 2018

June 19, 2018

1. The defendant shall pay to the plaintiff A 22,28,585 won, the amount of KRW 14,819,057 for each of the above amounts and the amount of KRW 15% per annum from July 21, 2017 to the day of complete payment.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Facts of recognition;

A. Conclusion, etc. of the instant insurance contract

1) On November 7, 2014, E entered into an insurance contract “F” with the Defendant, between E and the beneficiary of the insured, the legal heir of E, the insurance period from November 7, 2014 to November 7, 2029, and the insurance premium amounting to KRW 250,000 per month (hereinafter “instant insurance contract”).

2) From November 7, 2014 to November 7, 2015, the instant insurance contract guarantees the actual medical expenses up to 300,000 won each time within the limit of 300,000 won (the day following the maturity date, if the policyholder fails to express his/her intention by the day immediately preceding the maturity date) out of the general medical expenses, and KRW 50,000,000 if the insured were hospitalized due to disease, and the insured pays KRW 50,000,000 to the beneficiary where the insured dies of disease during the period from November 7, 2014 to November 7, 20209.

3) At the time of entering into the instant insurance contract, the Defendant issued a written confirmation of visiting health (hereinafter referred to as the “written confirmation”) to verify the health status of the policyholder, and the confirmation of the instant case contains the following items: “Does the fact that the Defendant received the following medical treatments from the doctors of the following 10th diseases through the medical examination or examination during the last five years,” and includes “high blood pressure” as one of the ten major diseases.

4) E indicated “V” on the part of “V” for the answer to the above question of the instant written confirmation, and submitted it to the Defendant.

(b) Occurrence, etc. of insurance accidents;

1) On April 12, 2016, E was diagnosed as “abstinence or pulmonary mar life” in the Glangdong National University Hospital.

2) From June 3, 2016 to March 3, 2017, E received outpatients from liberian Hospital to 23 times, and paid a total of KRW 868,240 won for the medical expenses. From January 2, 2017 to April 29, 2017, E received six hospitalized treatments as the above waste disease, and paid KRW 998,460 for the medical expenses.

3) On May 18, 2017, E died of the foregoing disease. Plaintiff A, the wife of E, succeeded to the rights and obligations of each E in proportion to the ratio of 3/7 of Plaintiff B and C, each of whom is the children of E, and the ratio of 2/7 of Plaintiff B and C, respectively.

C. The defendant's termination of the insurance contract of this case

1) On July 16, 2010, E had received a diagnosis of high blood pressure from G Council members of G Council members on several occasions and had received a high blood pressure treatment from G Council members and H Council members. Nevertheless, E did not notify the Defendant of this fact by stating it as “not in the relevant item of the instant confirmation document, as described in the foregoing paragraphs (a) and (iv).”

2) Around June 28, 2016, the Defendant sent to E a guide stating that the instant insurance contract will be terminated on the ground of the breach of duty of disclosure as described in the foregoing paragraph (1), which reaches E around that time.

3) On July 1, 2016, the Defendant paid KRW 820,490 to the termination refund of the instant insurance contract.

[Ground of recognition] Facts without dispute; Gap evidence Nos. 1 through 8; Eul evidence Nos. 1 through 3 (including numbers; hereinafter the same shall apply); the result of fact inquiry into Daegu regional headquarters of the National Health Insurance Corporation of this Court; the purport of the whole pleadings

2. The parties' assertion

A. Summary of the plaintiffs' assertion

The Defendant, as the insurer of the instant insurance contract, is the legal inheritor of E, is obligated to pay the Plaintiffs, who are beneficiaries of the death insurance under the instant insurance contract, for outpatient treatment costs of KRW 868,240, for hospitalized treatment costs of KRW 98,460, for death benefit of KRW 50 million, according to the Plaintiffs’ inheritance shares.

B. Summary of the defendant's assertion

E has medical capacity to receive treatment due to high blood pressure, middle-do’s inter-regional, or pre-affiliated vessels before the conclusion of the instant insurance contract. Nevertheless, at the time of the conclusion of the instant insurance contract, E did not notify the Defendant of the aforementioned medical capacity. The Defendant terminated the instant insurance contract on the ground of the instant breach of duty of disclosure, and paid the termination refund to E. Therefore, the Defendant did not have any obligation to comply with the Plaintiffs’ claim for the payment of insurance money.

3. Determination

A. Whether the duty of disclosure is violated

1) Relevant legal principles

"Important matters" under Article 651 of the Commercial Act, which are required to be notified to the insurer at the time of the insurance contract, means the standard for the insurer to determine whether to conclude the insurance contract or the contents of the insurance contract such as the addition of premium or special exemption clause by measuring the occurrence of the insurance accident and the estimated rate of liability arising therefrom, and objectively, if the insurer knows the fact, it refers to the matters that should not conclude the contract, regardless of whether to conclude the contract, or at least the same condition, if it is objectively known that the insurer knows the fact. Any fact-finding problem, which must vary depending on the type of insurance, must be objectively observed and determined in light of the type of insurance, is presumed to correspond to important matters in the insurance contract (see, e.g., Article 651-2 of the Commercial Act; Article 203Da18494, Jun. 11, 2004).

2) Determination

According to the above facts, the fact that E received a diagnosis of high blood pressure within five years is presumed to be an important matter to be notified to the Defendant at the time of entering into the instant insurance contract, and in light of the fact that E received a medical treatment by high blood pressure over several times from July 16, 2010 within five years before the date of entering into the instant insurance contract, it is reasonable to view that E was not aware of such fact and did not notify the Defendant thereof.

Therefore, E violated the duty of disclosure under Article 651 of the Commercial Act by intention or gross negligence at the time of entering into the instant insurance contract.

B. Whether there is no causation between the breach of duty of disclosure and the insurance accident

1) Relevant legal principles

Even after the occurrence of the insured events, if the insurer terminates the contract under Article 651, it is not liable for paying the insurance proceeds and may claim the return of the insurance proceeds already paid: Provided, That if it is proved that the insured's breach of duty of disclosure does not affect the occurrence of the insured events, the insurer is still liable for paying the insurance proceeds (Article 65

In the event that the contract of an insurance violates the duty of disclosure of important matters, the fact that the violation of the duty of disclosure was not affected by the occurrence of the insurance accident, that is, when it was proved that the insurance accident was not caused by the policyholder's non-disclosure or false notification, the insurer cannot terminate the insurance contract on the ground of such non-disclosure pursuant to the proviso of Article 655 of the Commercial Act. However, the burden of proving that the occurrence of the insurance accident and the absence of causation is in violation of the duty of disclosure is on the part of the policyholder (see, e.g., Supreme Court Decision 2013Da91405, 91412, Mar. 13, 2014).

2) Determination

E, on April 12, 2016, after undergoing the diagnosis of “the organ whose age is unknown” or “the bad faith of the waste,” and undergoing outpatient treatment and hospital treatment as seen earlier, died of the disease. According to these facts, it is reasonable to view that failure of E to notify the fact that E was diagnosed by blood pressure and received medical treatment for the treatment of the disease did not affect the occurrence of the insurance accident, such as the death of E, under which the instant insurance contract was concluded.

Ultimately, the defendant, the insurer, cannot terminate the insurance contract of this case on the ground of the violation of duty of disclosure, so the plaintiffs, as legal inheritors of E, who are beneficiaries of death insurance under the insurance contract of this case, can claim insurance money to the defendant under the insurance contract of this case.

C. Sub-committee

Therefore, the defendant is obligated to pay to the plaintiff A KRW 22,28,585 [the hospital treatment costs + (the hospital treatment costs of KRW 868,240 + the hospital treatment costs of KRW 998,460 + the hospital treatment costs of KRW 998,460 + KRW 50,000 + death insurance money of KRW 50,00] to the plaintiff B and C, each of the plaintiff 14,819,057 [the hospital treatment costs of KRW 868,240 + the hospital treatment costs of KRW 998,460 + the death benefit of KRW 50,000 + the death benefit of KRW 2/7] and damages for delay calculated by 15% per annum under the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings from July 21, 2017 to the day of full payment] and each of the above amounts.

4. Conclusion

If so, the plaintiff's claim shall be accepted for the reasons and it is so decided as per Disposition.

Judges Jin-young