[Plaintiff-Appellee] Insurance Co., Ltd. (Law Firm Lee branch, Attorneys Hah-Gyeong et al., Counsel for plaintiff-appellee)

Defendant-Counterclaim (Law Firm, Attorneys Kim Jong-hwan et al., Counsel for the defendant-Counterclaim plaintiff-appellant)

September 24, 2013

Seoul Southern District Court Decision 2011Gahap24594 (Main Office), 2011Gahap24600 (Counterclaim) Decided August 14, 2012

1.The judgment of the first instance shall be modified as follows:

A. It is confirmed that, due to an accident described in attached Form 1., an injury inflicted on the Defendant, the obligation to pay insurance money based on an insurance contract as stated in attached Form 2 against the Defendant (Counterclaim Defendant) by the Plaintiff (Counterclaim Defendant) does not exist in excess of the amount ordered in the following B.

B. The Plaintiff (Counterclaim Defendant) shall pay 7,800,000 won to the Defendant (Counterclaim Plaintiff) and 5% per annum from December 10, 2009 to October 24, 2013, and 20% per annum from the next day to the day of full payment.

C. The remaining principal claim and the remaining counterclaim claim of the Defendant (Counterclaim Plaintiff) are dismissed, respectively.

2. The total costs of the lawsuit shall be borne by the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff) respectively by 10% of the total costs of the principal lawsuit and the counterclaim.

3. Paragraph 1-b. above may be provisionally executed.

1. Purport of claim

In this lawsuit: It is confirmed that the injury inflicted on the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) due to an accident described in attached Form 1. does not exist any obligation to pay insurance money based on an insurance contract as stated in attached Form 2 against the Defendant of the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”).

Counterclaim: The plaintiff shall pay to the defendant 120,300,000 won with 5% per annum from December 10, 2009 to the service date of a copy of the counterclaim of this case, and 20% per annum from the next day to the day of complete payment.

2. Purport of appeal

The judgment of the court of first instance against the plaintiff shall be revoked. It is so decided as per Disposition as to the purport of the claim.

A principal lawsuit and a counterclaim shall be deemed simultaneously.

1. Basic facts

A. On April 17, 2008, the Plaintiff, the insurer, entered into an insurance contract with the Defendant as the insured as indicated in attached Form 2 (hereinafter “instant insurance contract”). The main contents of the instant insurance contract are as indicated in attached Form 3 (hereinafter “instant insurance contract”).

B. On May 22, 2009, the Defendant suffered from the injury of the Defendant, such as the escape certificate of 4, 5, 6, 7 light signboards, the number of drillings, and incomplete paralysis on the right side, etc. (hereinafter “the instant accident”).

C. On November 23, 2009, the Defendant filed a claim with the Plaintiff for the payment of insurance proceeds on the ground that the occurrence of the injury caused by the escape from the 4, 5, and 6, 7, the light signboard and the 50,000,000 won in general injury (basic contract) and the general injury after injury under the insurance contract of this case, and on November 25, 2009, the Plaintiff paid insurance proceeds to the Defendant on November 25, 2009 by multiplying the insurance coverage amount by 10,000,000 won in total by 15,000,000 won in general injury (basic contract) and 50,000,000 won in general injury (hereinafter “the disability classification table of this case”) under the disability classification table of attached Table 1 of the insurance contract of this case (hereinafter “the disability classification table of this case”) and the contribution ratio to the accident of this case by 60%.

D. After that, on December 4, 2009, the defendant filed a claim for the payment of insurance money under the insurance contract of this case on the ground that the following obstacles in the daily life basic action limitation (ADLs) disability assessment table were caused on the ground that, in addition to the escape symptoms of light signboards, light signboards, 4, 5, and 6, 7, light cars, and light cars, the right-hand side part of the disability classification table 13, which is due to the ground that the disability in the new boundary limitation table has occurred:

1. The state of being able to take independent food during the consumption of food, but not dried up or dried up by using the salted salt (5% of the payment rate);

2. Circumstances in which it is difficult to conduct business (operation, work, education, etc.) which continues for at least two hours due to frequent and irregular changes in urines (5% of the payment rate).

3. The condition in which it is impossible to show shower or take bath while taking the bath without another person's continuous learning (ten percent of the payment rate).

4. The condition in which it is possible to wear clothes, but it is impossible to complete without the help of any other person (such as string, swimming, grounding, cutting, cutting, string, etc.).

E. Accordingly, according to the opinion of the advice on December 14, 2009, the Plaintiff excluded 2. E. Before the above claim from the escape certificate of light signboards that had been paid once. 3. The bathing items are possible to show shower on the daily life basic action (ADS limitation), but on its own, the payment rate is 13% (5% in food + 5% in bathing + 3% in clothes). The Plaintiff determined the payment rate as 13% in total (150 million won in total as the purchase amount of general injury (basic contract) and the general injury after the injury under the insurance contract of this case, and calculated by multiplying the above payment rate by 13% in total by the contribution rate of 60% in the accident of this case x 1,170,000 won (1.5 billion won in total) x 2.6% in addition, the amount of the disability insurance proceeds of this case x 60% in addition to the payment of the insurance proceeds of this case (100 million won in total).

(f) Relevant medical knowledge;

1) The scopical scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic s

2) The escape from a conical signboard is a disease caused by the escape of a conical signboard ( disc) that exists between the conical border. If a conical signboard escape from one side of the organizations surrounding its surroundings and pressures on the number of side, which is the serious conical border, depending on whether it escape into one part of the organization surrounding its surroundings, a salutic disease occurs, and if it escape from the salutical border to the other part, the salutic disease occurs.

Generally, there are a lot of neutism rather than leutism.

3) The climatic climatic climatic climatic climatic climatic climatic climatic climatic climatic climatic climatic climatic climatic climatic climatic climatic climatic climatic climatic climatic climatic m

Since the escape card of a climatic signboard is the most shaking symptoms of the climatic climatics, and the climatic climatics are more divided of spinal chromatics than the number of times, most of the climatics appear in the face of the climatics.

【Ground of recognition】 The fact that there has been no dispute, entry of Gap 1 through 5, and 7 evidence (including branch numbers, if any; hereinafter the same shall apply), the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

(1) Although the Defendant received all the insurance proceeds from the instant accident, both arms and fingers still remain and claims insurance proceeds. However, in relation to the impairment of both arms and fingers ordinarily derived from the scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopics, which are the cause of the second insurance payment, the Defendant has no obligation to pay the second insurance proceeds.

(2) The defendant asserts that the remaining disability of this case constitutes 100% of the payment rate under the disability classification table of this case, and thus, the plaintiff is obligated to pay the insurance proceeds for death of a disease to the defendant. The defendant's remaining disability falls under 30% of the payment rate under the disability assessment table of this case, and there is no obligation to pay the insurance proceeds for death of a disease which requires the payment of 80% of the payment rate

(3) Even if it is distinguished from the escape certificate of a protruding signboard, and even if it is recognized that the protruding plane was derived from the protruding plane, the payment rate for the defendant is only 50% of the highest rate of payment due to the highest rate of the escape certificate of a protruding signboard and 30% of the obstacles caused by the protruding plane.

(4) Ultimately, the Defendant’s counterclaim is dismissed and the Plaintiff’s claim for principal lawsuit should be accepted, since it is apparent that the amount of insurance proceeds resulting from death of a disease exceeds the reasonable insurance proceeds, and it does not meet the requirements for payment.

B. Defendant’s assertion

(1) Under the disability classification table of this case, the following disability that occurred to the defendant due to the accident of this case constitutes ① vertebrate: 20% (payment rate 20%), ② when the defendant left with a serious obstacle to the function of Section 1 from among the three parts of the three parts of the Chinese arms (payment rate 20%), ③ When the defendant has lost part of the bones of the fingers of one hand, or when he left with a obvious obstacle (payment rate 30%); ④ When the defendant has lost part of the bones of all five fingers of one hand, or when he has left a obvious obstacle (payment rate 30%).

(2) According to Article 17(6) of the Insurance Terms and Conditions of this case, where there are not less than two remaining disabilities due to one accident, it shall be paid after adding up the payment rate of each disability. Thus, when adding up all of the above payment rate, 100% (20% of the escape certificate of a serious side 20% + 20% of the disability on the right side ＋ 30% of the disability on the right side ＋ 30% of the left side x 30% of the disability on the left side ). In accordance with Article 17(1) of the Insurance Terms and Conditions of this case, where the payment rate of the remaining disability is more than 80%, the total amount of the insurance amount shall be paid as the insurance amount. As such, the Plaintiff is obliged to pay the Defendant with the total amount of the general injury (basic contract) and the total amount of the insurance amount of the general injury (150 million won) and the general injury compensation disability in this case’s insurance contract.

(3) Furthermore, according to the instant insurance policy, in the event that the Defendant, the insured, left a disability with at least 80% specified in the Disability Classification Table due to a disease during the insurance period, the Plaintiff is obliged to pay 60 million won of the amount of death insurance for illness (the insurance coverage amount of 30 million won x 2) to the Defendant. The Defendant’s disability constitutes at least 80% of the payment rate, and the remainder of 40% of the occurrence of the above disability, excluding 60% of the degree of contribution to the instant accident, out of the causes of the above disability, is a kind of disease that the Defendant had already owned, and eventually, the remaining disability with at least 80% of the payment rate due to the disease, shall be deemed to have been left a disability. Accordingly, the Plaintiff is obligated to pay the Defendant the above disease death insurance amount of 60 million won.

(4) Therefore, the Plaintiff is obligated to pay to the Defendant a total of KRW 150 million (amounting to KRW 90 million for post-disease disability insurance + KRW 60 million for disease death insurance + KRW 18 million for death insurance) calculated by deducting the remainder of KRW 12,30,000,000 which the Plaintiff already paid to the Defendant (amounting to KRW 18 million for second insurance + KRW 11.7 million for second insurance), and damages for delay at each rate of KRW 20,000 per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from December 4, 2009 to the delivery date of a duplicate of the counterclaim of this case from December 10, 209 to the delivery date of the duplicate of the counterclaim of this case; and KRW 50,000 per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment.

3. Determination

A. Determination on the claim for a disability insurance benefit

(1) The rate of payment for the recognition of the residual disability of each part;

In full view of Gap evidence Nos. 3, 7, and Eul evidence Nos. 1 through 3, and 7, the result of physical commission and fact inquiry of the chief of the university of Egymanian University at the first instance court, the result of physical examination of the chief of the university of Egymanian University at the university of Egymanian University at the first instance court, and the purport of the entire pleadings at the university of Egyman University at the school of the first instance court at the university of Egymanian University at the first instance (Egye May 17, 201) as a result of the entire pleadings, the defendant suffered from the following disability such as the escape from the 4, 5, and 6, 7, 3, and 5, and 3, respectively, of the accident in this case. Under the insurance terms and conditions of this case, the payment rate of the remaining disability in this case shall be 20% where the remaining part of Egymanian University at the second instance is found to be 10% of the remaining part of Egy.

(2) Calculation of the total payment rate

(A) Whether the escape certificate and the escape certificate of the warning signboard of this case are ordinarily derived.

However, the insurance contract of this case provides that, in principle, the payment rate of the remaining disability shall be added when two or more disabilities have occurred due to the same accident (Article 17(6) of the General Terms and Conditions): Provided, That where two or more disabilities have occurred in the same physical part or one disability is in a relationship of normal disability according to the observation method, only the highest payment rate shall be applied (Article 3.1 of the General Rules of the Disability Classification Table 3). This is an exceptional provision that, even if the two disabilities are medically different, if the two disabilities can be deemed as one disability, it shall be deemed that the payment rate thereof would be too high so as to prevent the harm of equity among the policyholders, and it shall be strictly interpreted in determining its scope of application, and further, the content of the insurance contract shall be interpreted uniformly based on the possibility of average customers' interests without consideration of each individual contractor's intent or specific circumstances (see, e.g., Supreme Court Decision 200Da16810, Nov. 16, 2011).

Accordingly, this paper examines whether the escape from the conical signboard of this case and the light-sponsor are ordinarily derived.

(4) In light of the following facts, the defendant was able to find out that there were only one of the following facts, based on the results of physical evaluation of the head of the university of the first instance (i.e., May 17, 201) and the overall purport of oral proceedings (including Nonparty 3’s opinion) of the court in view of the fact-finding change, which means that there was only a narrow vertebrode clibulation, and that there was a shocking danger caused by the instant accident, and that there was damage to the clibal clibal clibal clibal clibal clibal clibal clibal clibal clibal clibal clibal clibal clibal clibal clibal clibal clibal clibal clibal clibal clibal clif.

Therefore, in judging the degree of the defendant's post-standing disability, it is reasonable to add up the rate of the post-standing disability payment due to the symptoms of the escape of the conical signboard and the rate of the post-standing disability payment due to the fact-finding car.

(B) Determination on the rate of payment of the remaining disability due to the climatic evidence

As seen earlier, the defendant's state of disability (the disorder of arms and fingers) is caused by the scamhosis, and the professional examiners of the court of the trial presented the medical opinion that the playgrounds of the sale and fingers are ordinarily derived from the scamh, which is a new boundary disorder, the non-party 3 of the specialized examination commissioner of the court of the trial presented the medical opinion that the fields of the sale and fingers are ordinarily derived from the scamh, which is an obstacle to the new boundary.

In this case, if the defendant's state of disability (the defendant's physical disability) is directly damaged, it may be deemed that it falls under "when one or more action is restricted among 5 basic action (ADLs)" as provided for in the grade of disability (ADLs limitation, and in terms of individual disability that occurred on each part of the body due to the above bodily injury, it shall be deemed that the payment rate is 13%, in the case of the former, that the payment rate is 20%, the right side, 30%, in the case of the latter, and that the left side part is 30%, in the case of the disability classification, and that the payment rate is 13%, in the case of the latter, the payment rate is 30%, in the case of the disability classification, and that in the case of the second part or the same body part of the same body part of the same case, the payment rate is not applied separately from the other body part of the two or more different criteria, and the payment rate is not applied separately in accordance with the method of observation.

In light of the above legal principles, where one of the above facts is in a relationship of ordinary disability in the insurance clauses of this case, the interpretation of the provision and the purport of the provision that limits the rate of payment shall be fair and reasonable in light of the purpose and purpose of the contract in question in accordance with the principle of trust and good faith, but objectively and uniformly interpreted on the basis of average customer's understanding possibility without considering the intended purpose or intent of the parties to the contract. In light of the above legal principles, the insurance clauses of this case stipulate that only the highest rate of payment of the remaining disability shall be applied in the case where one of the other obstacles is in a relationship of ordinary disability according to observation methods, and that only the highest rate of payment of the remaining disability shall be applied in the case where the other physical disability in the new boundary is ordinarily derived. In this case, the defendant's physical disability in the above case is different from each other, but only 3% of the above physical disability in the case of the defendant's physical disability in the above case, which is the highest rate of 0% after the payment rate of the physical disability in this case's physical disability in this case.

(C) Sub-determination

In accordance with the above criteria, when calculating the payment rate of the defendant's pro rata disability, 50% (20% + 30%) is the sum of 20% of the payment rate of the pro rata disability of the protruding of a protruding signboard and 30% of the payment rate of the protruding disability caused by the sale and loss.

(3) Calculation of the amount of the future disability insurance;

As seen above, the Defendant’s payment rate of the following disability due to the instant accident constitutes “general after-sales disability” as stipulated in Article 17(2) of the Insurance Terms and Conditions (in conclusion, the Defendant’s assertion that the Defendant’s payment rate of the following disability falls under 100% and constitutes “high-sea disability” as stipulated in Article 17(1) of the Insurance Terms and Conditions, is without merit). Meanwhile, as a result of the first instance court’s entrustment of physical examination to the head of the Egym University at the Egym University at the Egym University at the court of first instance, the first instance court’s commission of physical examination to the head of the Egym University at the school and the Sgym University at the university Sgym Hospital at the university (as of May 17, 201). In full view of the overall purport of the arguments, the contribution rate of the instant accident to the above disability is 50%. Accordingly, the Plaintiff is obliged to pay 30 million won [the Defendant’s payment rate of the following disability in this case 500 billion won x general injury 】

However, the fact that the Plaintiff paid to the Defendant the sum of KRW 29.7 million on November 25, 2009 with the insurance proceeds from the instant accident, and KRW 18 million on December 14, 2009, the sum of KRW 29.7 million on December 14, 2009 is as seen earlier. Accordingly, the insurance proceeds from the subsequent disability to be paid by the Plaintiff to the Defendant is KRW 7.8 million ( KRW 37.5 million - KRW 29.7 million).

(4) Determination on the Plaintiff’s assertion of payment rate agreement

In regard to this, the plaintiff asserts that the defendant has no obligation to pay the insurance money in addition, since the defendant paid the payment rate for the second disability at 13% at the time of the payment of the second insurance money, but there is no evidence to acknowledge this. Thus, the plaintiff's above assertion is without merit.

B. Determination on the claim for death benefit due to disease

Article 2(1) of the 2-1 of the 2-1 Insurance Terms and Conditions for the Death of Diseases provides that “In the event the insured under the 2-1 Insurance Terms and Conditions for the Insurance Policy dies during the insurance period due to a disease during the insurance period of this Special Terms and Conditions, or has lost part of body as a direct result after recovering the disease, or has lost its function permanently (hereinafter “ex post facto disability”), and the rate of payment specified in the 1th Disability Classification Table of this Special Terms and Conditions remains more than 80%, the insured amount of the 2-1st Insurance Terms and Conditions shall be paid to the beneficiary as the insurance amount for the death of a disease.” Accordingly, the insurance amount for the death of a disease shall be construed as paying the insurance amount of the 80% disability under the 1st Disability Classification Table.

Therefore, in this case where the payment rate of the defendant's disability is 50% only, the above special terms and conditions of death do not apply to the defendant. Thus, the defendant's claim for the payment of the death insurance on the premise that the above terms and conditions are applied is without merit without further review.

C. Sub-committee

According to Article 33(1) of the Insurance Terms and Conditions of this case, the Plaintiff is obligated to pay insurance money to the Defendant within three business days after the insured claims insurance money. Accordingly, the Plaintiff is obligated to pay the Defendant the insurance money at each rate of KRW 7.8 million per annum under the Civil Act from October 24, 2013 to October 24, 2013, which is the date of the ruling of the first instance where it is deemed reasonable to dispute as to the existence or scope of the obligation of the Plaintiff’s performance, and damages for delay at each rate of KRW 20% per annum under the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings until the day of full payment, etc., and there is no excess of the above amount due to the accident of this case against the Defendant, and as long as the Defendant claims the confirmation of the interest of the Plaintiff.

4. Conclusion

Therefore, the plaintiff's main claim and the defendant's counterclaim are justified within the scope of each recognition, and each remaining claim is dismissed as it is without merit. Since part of the part against the plaintiff in the judgment of the court of first instance differs from this conclusion, it is unfair to accept part of the plaintiff's appeal and to revise the judgment of the court of first instance as above, it is so decided as per Disposition.

[Attachment]

Judges Kim Sang-sung (Presiding Judge)

1) According to the disability classification table (A) where Nonparty 1 wishes to fall under “when five fingers of five fingers are seriously disabled,” it shall not exceed 1/2 of the area of normal exercise. In this case, the exercise area shall be measured by hand as the area of light physical exercise; b) Nonparty 1’s degree of disability on the left-hand side of the first instance court’s appraisal (in addition, Nonparty 1’s degree of disability beyond 3 degree; 2 degree of disability in front and beyond 1/2 degree of light; 3 degree of disability in front and above; 1% degree of disability in front and above; 2 degree of disability in front and above; 3 degree of disability in front and above; however, Nonparty 1 appears to fall under the category of disability in front and above; 2 degree of disability in front and below 1/2 degree of disability in front and below the left-hand side of the second instance court’s appraisal opinion. However, even if Nonparty 1’s opinion on the fact-finding, it is reasonable that the degree of disability in front and below 2 degree of disability in Seoul.

Note 2) One of the unique symptoms of climatic climatic climatic climatic cliffs, such as weakening the hands of hand, bad natural knife and an abnormal sense of sense, is as seen earlier.

(3) In Supreme Court Decision 2011Da68302 Decided November 10, 2011, supra, the Supreme Court held to the effect that “The above interpretation theory is in a relationship ordinarily derived from a new boundary disorder due to an unfashal damage by an unfagromatic damage, so it is reasonable to view that only the highest payment rate of the latter disability should be applied to the payment rate for the latter disability of three thalves, after calculating all the payment rates of the new boundary disorder due to an unfagal damage and the subsequent disability due to an unfagical damage, and that such interpretation theory also conforms to the objective and uniform interpretation principle of the terms and conditions.”

Note 4) Five and six days are Saturdays and Sundays, and thus, on December 10, 2009, the damages for delay shall be the initial date.