Samsung Fire Insurance Co., Ltd. (Attorney Shin Jae-hun et al., Counsel for the plaintiff-appellant)

DB Insurance Co., Ltd. and one other (Law Firm Hank, Attorneys Jeon Young-young, Counsel for the plaintiff-appellant)

April 26, 2018

1. The Defendants jointly pay to the Plaintiff 105,276,263 won and 35,099,418 won with interest rate of 5% per annum from April 25, 2017 to May 10, 2018, and 15% per annum from June 29, 2017 to May 10, 2018.

2. The plaintiff's remaining claims against the defendants are dismissed.

3. Of the litigation costs incurred between the Plaintiff and the Defendants, 50% is assessed against the Plaintiff, and the remainder is assessed against the Defendants, respectively.

4. Paragraph 1 can be provisionally executed.

The Defendants shall pay to each Plaintiff 230,423,79 won and 50,142,027 won with 15% interest per annum from April 25, 2017, and from June 29, 2017 to the date of full payment.

1. Basic facts

(a) The relationship of each insurance contract;

1) The Plaintiff, who operates △△△△△△△△△△△△△, made Nonparty 2 and the insured as Nonparty 2, was an insurer who entered into an insurance contract with the term of insurance from July 1, 2016 to July 1, 2021 (hereinafter “non-dividend 2-related insurance”). The subject matter of insurance, such as the building located in Daegu Seo-gu ( Address 1 omitted), and the amount of insurance coverage are as follows.

30,000,000 won in total, in 30,000 won in 30,000 won in 30,000,000 won in total, together with the household fixtures 1 in the 3 movable property marks of 30,000,000 won in the 3 movable property list of 1st and 30,000,000 won in the 3 movable property list of 1st and in the 1st of 1st of the building, 1st of the 3th of the building in the aggregate of the insurance coverage amount of the building;

2) The Plaintiff is an insurer that entered into an insurance contract for Undividend Samsung Fire and Property Insurance Co., Ltd. (hereinafter referred to as “Japan-si”) with the insured as the first class insurance company and the insurance company as the first class insurance company from November 13, 2013 to November 13, 2018 (hereinafter referred to as “the first class insurance contract”). The subject matter of insurance, such as the building located in Daegu-gu ( Address 2 omitted), and the amount of insurance coverage are as follows:

Total inventory assets of KRW 100,000,000 in total, 200,000,000,000 for 1,000,000 won for 1,000,0000 square meters for 2,000 square meters for 3,000 square meters for 3,000 square meters for 1,00 reinforced concrete building

3) Meanwhile, Defendant 2 entered into an insurance contract with Defendant DB Insurance Co., Ltd. (hereinafter “Defendant Company”) and the aforementioned △ Industries Co., Ltd. as the subject matter of insurance on the 2nd floor of Daegu-gu ( Address 3 omitted) with the insurance period from December 16, 2013 to December 16, 2018, the term “non-dividend professional fire indemnity insurance 1312” as the insurance period from December 16, 2013 to December 16, 2018. The instant insurance contract includes the maximum amount of 300,000,000 won for fire liability.

(b) Occurrence of a fire;

On February 26, 2017, at around 12:10, the second floor of the △△△△△△△△△△△, a corporation, etc., which was adjacent to the factory in this case, was destroyed by a fire in the second floor of the △△△△ (hereinafter referred to as the “instant fire”). A fire accident, which was transferred to a non-party 2’s non-party 2’s building, was occurred (hereinafter referred to as the “instant fire”).

C. Relevant damages and the Plaintiff’s insurance payment

1) The damages suffered by Nonparty 2 due to the instant fire were assessed as KRW 50,142,027, totaling KRW 30,669,540 relating to the building, KRW 11,590,487 relating to the aggregate of KRW 7,882,00 pertaining to movable property, and KRW 50,142,027 pertaining to the said fire. On April 24, 2017, the Plaintiff paid KRW 50,142,027 as insurance money to Nonparty 2.

2) The instant fire was assessed as KRW 80,281,772 in relation to the building and KRW 194,980,545 in relation to movable property. On June 28, 2017, the Plaintiff paid KRW 180,281,772 in relation to the instant fire.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 4, 5, 6, 8, and Eul evidence No. 1, the purport of the whole pleadings

2. Determination

A. Summary of the plaintiff's assertion

Since the fire of this case occurred due to the defect in the installation and preservation of the facilities inside the factory of this case possessed by Defendant 2, Defendant 2, the occupant of the factory of this case, pursuant to Article 758(1) of the Civil Act, is liable to compensate for the damages caused by the fire of this case. Therefore, Defendant 2 and the insurer of this case are jointly liable to compensate for the damages caused by the fire of this case. Accordingly, Defendant 2 and the insurer of this case are liable to compensate for the damages caused by the fire of this case to the Plaintiff, who is the insurer subrogated to Nonparty 2 and

B. Determination

1) Whether Defendant 2 is liable for damages

A) The defect in the installation and preservation of a structure under Article 758(1) of the Civil Act refers to a state in which a structure does not have safety ordinarily in accordance with its purpose of use. In determining whether such safety is satisfied, the determination shall be based on whether the installer and custodian of the structure in question has fulfilled his/her duty to take protective measures to the extent generally required by social norms in proportion to the risk of the structure (see, e.g., Supreme Court Decision 2010Da71318, Mar. 28, 2013). The burden of proving the existence of a defect lies in the burden of proving the existence of the victim, but as long as the existence of a defect is recognized as a group of defects, even if the existence of another fact is recognized as competing with the victim, such defect may not be exempted unless it proves or proves that the possessor did not exercise due care necessary for the prevention of damage.

B) Considering the above facts and the overall purport of Gap evidence Nos. 3, 6, and 9-1 through 14, Eul evidence Nos. 1, 2, and 3 as well as the overall purport of arguments and arguments, it is reasonable to view that the color straws installed at the factory of this case at the time of the fire of this case were in a state of not having ordinary protective measures or safety in accordance with social norms. It is recognized that the fire was burned to the building and movable property of non-party Nos. 3, 6, and 9-1 to No. 14, and Eul evidence Nos.

① The first area of the fire in this case is the color studs installed on the second floor of the factory in this case. In the part designated as the first area of the fire extinguishment, the characteristics of the electric sprink were identified at the end of one electric wire at the same end.

② CCTV is installed on the 1st and second floors of the instant factory. On February 25, 2017, the day before the fire occurred, a person who entered the 2nd floor of the instant factory after leaving the o’clock. On February 25, 2017, it was confirmed that around February 26, 2017, the second floor door door door of the instant factory was opened, and that the two floors door door door door door was opened, and that the factory of this case was operated by the guard company. There was no fact that the intrusion warning was operated.

③ According to the manual of the factory of this case, in the event that the electric power supply was not obstructed without using the color tag, it is stated that the luminous power source was operated by the luminous power source and all of it was cut off after the maximum of 140 minutes. However, at the time of the fire of this case, it was confirmed that the electric power was in the color tag at the time of the fire and the luminous power was operated for about 20 hours.

④ At the factory inside of the instant plant, paintings, shoess, etc., other than various connective machines, hand tools, etc., have been installed.

⑤ Police completed internal investigation on the ground that the instant fire is presumed to have been electricity generated from the second floor book room of the instant plant.

(6) On the other hand, Defendant 2 did not neglect to pay attention necessary to prevent damage caused by the instant fire, or did not at all assert and prove that the instant fire was caused by force majeure, such as natural disasters.

C) Therefore, under Article 758(1) of the Civil Act, Defendant 2, as the occupant of the instant plant, is obligated to pay the insurance money for the damages incurred by Nonparty 2 and the first class action, and to pay the damages to the Plaintiff who vicariously executes his claim for damages, barring any special circumstance. Defendant 2, the insurer of Defendant 2’s liability for damages, is obligated to pay the damages jointly with Defendant 2.

2) Scope of liability for damages

A) Limitation of liability or reduction of damages

The aforementioned evidence and the overall purport of oral argument as follows: (i) it is difficult to recognize that there was Defendant 2’s gross negligence in the event of the instant fire; (ii) it appears that Defendant 2 would also be liable for damages to four companies other than Nonparty 2 and Japan; (iii) Defendant 2 seems to have suffered substantial damages, such as de facto removal of its plant; (iii) Nonparty 2 appears to have been likely to have been in contact with the instant plant, and it appears to have been very high possibility of combustion; and (iv) movable property among the subject matter of insurance was a kimchi-related building stored in a low temperature storage; (iv) it was used as a distribution center in Japan, and there were many buildings used as collateral; and (v) it appears that Defendant 2 could not have reduced the amount of damages by taking account of the following factors: (v) it appears that Defendant 2 had a high risk of burning, such as giving rise to fire or other inflammable substances, and (v) it appears that there were many relevant factors such as fire or inflammable substances to the extent that the victim would have suffered considerable damages.

B) Damages

As acknowledged earlier, the damages suffered by Nonparty 2 due to the instant fire are KRW 30,69,540 related to the building, KRW 11,590,487 related to the aggregate of KRW 7,82,00 related to movable property, KRW 50,142,027 related to movable property, and KRW 80,281,772 related to the building and KRW 194,980,545 related to movable property. The damages suffered by Nonparty 2 due to the instant fire are KRW 80,281,72 related to the building and KRW 194,980,545 related to movable property.

C) Whether to restrict the exercise of the Plaintiff’s right to indemnity

The Defendants asserted that, in cases where an insurer paid part of the insurance proceeds to be compensated by the insurer pursuant to the proviso of Article 682(1) of the Commercial Act, the rights may be exercised to the extent that it does not infringe on the rights of the insured, and that, as the Plaintiff paid only a part of the insurance proceeds, the amount of damages to the first-class insured worker due to the instant fire in KRW 275,262,317 should be restricted from exercising the Plaintiff’s right

The insured may claim against a third party for the performance of his/her liability to compensate for any remaining losses without compensating for the insurance proceeds received from the insurer (However, the liability within the scope limited by comparative negligence, etc.). If the total amount of damages remains more than the amount of the third party’s liability for damages, the insured may claim against the third party for the full amount of his/her liability to compensate for the damages. If the remainder amount of damages is less than the amount of the third party’s liability for damages, the insurer may claim against the third party for the remainder amount of damages (see Supreme Court Decision 2014Da46211, Jan. 22, 2015).

As seen earlier, the amount of damages related to the subject matter of insurance suffered by Schlage as a result of the instant fire is KRW 80,281,772 relating to the building; KRW 194,980,545 relating to movable property; KRW 275,262,317 relating to movable property; KRW 80,281,772 pertaining to the building; KRW 100,000 pertaining to movable property; and KRW 100,000 pertaining to movable property, KRW 94,980,545 pertaining to the amount of damages incurred by the instant fire. Therefore, the amount of damages remaining after being compensated as insurance proceeds from the damages suffered by Schlage as a result of the instant fire is KRW 165,157,390 pertaining to the Defendant’s responsibility. Accordingly, the Plaintiff’s portion of damages remaining as the insurer’s right is limited to the insurer’s right to do so within the scope of KRW 165,262,317 x 0.6,00).5

D) Sub-determination

Therefore, Defendant 2 and its insurer, the tort against Nonparty 2 and Japan, the Defendant Company, jointly paid to Nonparty 2 to the Plaintiff, 35,099,418 (won 50,142,027 x less than KRW 0.7 x less than KRW 845 105,276,263 and 35,09,418 out of these 35,09,418 won, from April 25, 2017, which is the day following the day the Plaintiff paid the insurance money to Nonparty 2, and the day following the day the Plaintiff paid the insurance money to the Plaintiff, shall be 105% of the annual damages for delay calculated from June 29, 2017 to the day following the day the Plaintiff paid the insurance money to Nonparty 2, and from June 29, 2017, which shall be 15% of the annual damages for delay from the day following the day the Defendant paid the insurance money to Nonparty 2 to the day of full payment.

3. Conclusion

Therefore, the plaintiff's claim against the defendants is justified within the scope of the above recognition, and each of the remaining claims is dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Young-sung