2018Da231505 Insurance proceeds

A

Samsung Fire Insurance Co., Ltd.

Seoul High Court Decision 2017Na205320 Decided April 11, 2018

September 13, 2018

The part of the lower judgment against the Defendant regarding lost income during the period of hospitalization is reversed, and that part of the case is remanded to the Seoul High Court. The remainder of the appeal is dismissed.

The grounds of appeal are examined.

1. Of the part of the lower judgment against the Defendant, the determination on the part of the damages for lost income regarding the period of hospital treatment

A. According to the reasoning of the judgment below, based on adopted evidence, the court below acknowledged the following facts: (i) the Plaintiff suffered from the injury of the climatic malopical malopical marome between the instant accident and the 4-5th malphical malopical malopical mar, which caused the loss of labor ability by 35% of the 35% of the climatic mal damage; and (ii) the Plaintiff’s ropical marction, considering the Plaintiff’s contribution to the instant accident, the lower court acknowledged

Then, the lower court assessed the labor disability loss rate of 100%, regardless of the existence of spatition from March 19, 2014 to August 1, 2014 and from August 27, 2014 to October 23, 2014, as the Plaintiff lost all income equivalent to KRW 8,341,714 per month due to hospitalization due to the instant accident, during the period from February 19, 2014 to February 28, 2014, which is the period of hospitalization, regardless of the existence of spatition, and calculated the remaining period excluding the above hospitalization rate of 17.5% from November 27, 2013, the date of the instant traffic accident, to June 21, 2038, as 50% contribution rate of 17.

B. However, it is difficult to accept the part of the judgment of the court below as to loss of lost income during the period of hospitalization for the following reasons.

(1) In a case where the king of the victim of a traffic accident contributed to the occurrence of a specific injury or the prolonged period of treatment, or the expansion of the degree of subsequent disability after the completion of treatment, due to the aggravation of the accident in competition with the accident, it is reasonable from the perspective of fair and equitable burden of damages to bear the amount of compensation corresponding to the victim's total damages according to the degree that king contributed to the occurrence of the whole result of the injury including the specific injury. In determining the degree of contribution to the whole injury of king, it is not necessarily necessary for the court to make an accurate determination of the degree of contribution to the whole injury in medical science. It can be reasonably determined in light of all the circumstances such as the cause and degree of king, the degree of injury, the correlation between the king and the whole injury, the treatment process, the age, occupation, and health of the victim, etc., and if such king has contributed to the prolongedization of the period of hospitalization, it should be considered in calculating the actual income during the period of hospital treatment (see, e.g., Supreme Court Decision 2005Da584, Apr. 2975.

(2) Considering the following circumstances revealed by the reasoning of the lower judgment and the record, ① the Plaintiff was treated with the escape certificate of 14 times from March 6, 2006 to October 24, 2013, which is the relocation of the instant accident. ② The Plaintiff was diagnosed with the development damage, etc. caused by the escape certificate of the 4-5 conical signboard due to the instant accident, and then was treated with the 4th anniversary of the instant accident, the lower court did not accept the first 5th 5th 1st 4th 00 of the death penalty, and received a rehabilitation treatment of the Plaintiff on the ground that the 4th 5th th 5th 0th 0 th 1st 5th 6th 6th 1st 6th 1st 6th 6th 1st 6th 206 th 5th 200 th 5th 2014.

Nevertheless, the lower court, on the grounds indicated in its reasoning, did not consider the Plaintiff’s contribution to the Plaintiff’s work during the period of hospital treatment and calculated the lost income by deeming the rate of loss of labor ability during the period of hospital treatment as 100%. In so determining, the lower court erred by misapprehending the legal doctrine on the contribution to the Plaintiff’s work, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

2. Judgment on the remaining grounds of appeal by the defendant

Of the lower judgment, the Defendant filed an appeal against the Defendant regarding the amount of KRW 250,00,000 as well as the amount of KRW 5% per annum from November 27, 2013 to September 1, 2017, and damages for delay calculated at the rate of 15% per annum from the next day to the date of full payment. However, the Defendant did not state the grounds for appeal in the final appeal and the appellate brief on the portion other than the lost income arising from the period of hospital treatment.

3. Conclusion

The part of the judgment of the court below against the defendant regarding lost income during the period of hospitalization shall be reversed, and that part of the case shall be remanded to the court below for further proceedings consistent with this Opinion. The remaining appeal shall be dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Jae-chul

A person shall be appointed.