[Plaintiff, Appellant]
[Defendant, Appellee] Korea Bus Transport Business Cooperative Federation (전국버스운송사업조합연합회) (Attorney Jeong Seong-heum, Counsel for the defendant)
[Judgment Below] Seoul Central District Court Judgment 2011Na16201, decided July 12, 2011
[Order]
The judgment below is reversed, and the case is remanded to the Panel Division of the Seoul Central District Court.
[Reasoning]
The grounds of appeal are examined.
1. Where Personal Injury Mutual Aid Coverage II of an automobile mutual aid (insurance) contract contains an exemption clause to the effect that "losses of a person who is an employee of a member with liability for compensation and who is entitled to receive accident compensation under the Industrial Accident Compensation Insurance Act (산업재해보상보험법, hereinafter the "Industrial Accident Compensation Insurance Act") shall not be compensated (provided that excess losses beyond the scope of compensation under the Industrial Accident Compensation Insurance Act shall be compensated)," the purport of such provision should be interpreted as follows: With respect to losses arising from an occupational accident occurring in the labor relationship between an employer and an employee, the Labor Standards Act, which governs labor relations, provides for various compensation liabilities of the employer, and the Industrial Accident Compensation Insurance Act establishes the industrial accident insurance system to secure such compensation liabilities. Accordingly, losses suffered by an injured employee due to a work-related automobile accident subject to industrial accident insurance should also be compensated through industrial accident insurance, and to the extent that such compensation is available through industrial accident insurance, it is reasonable to interpret that such losses are intended to be excluded from the scope of personal injury liability coverage under automobile insurance, whose purpose is to indemnify liability to third parties (see Supreme Court en banc Decision 2003Da2802, decided March 17, 2005).
Therefore, if there is a portion of the loss to be compensated by the mutual aid cooperative under the mutual aid contract that can be indemnified by industrial accident insurance benefits, such portion shall, absent special circumstances, be exempted from the cooperative's liability for damages pursuant to the above exemption clause and shall instead be indemnified through industrial accident insurance benefits. However, the burden of proving that the case falls under "a person who is an employee of a member with liability for compensation and who is entitled to receive accident compensation under the Industrial Accident Compensation Insurance Act," which is a requirement for the application of the exemption clause, lies with the mutual aid cooperative asserting the application of the exemption clause. Furthermore, even though it is not necessarily required that the compensation amount has actually been paid or that a decision to pay industrial accident insurance benefits has been made in order to deduct an amount equivalent to such compensation from the amount of damages on the ground that the case falls under a case where accident compensation may be received under the Industrial Accident Compensation Insurance Act, such deduction should not be made arbitrarily where whether such compensation will be paid is uncertain.
2. The court below, based on the evidence it adopted, found the following facts as stated in its reasoning: the deceased, an employee of Boyoung Unsu Co., Ltd. (hereinafter the "non-party company"), a member cooperative that had entered into the defendant's automobile mutual aid contract (hereinafter "the instant mutual aid contract"), died in a work-related traffic accident caused by the operation of a bus covered by the instant mutual aid contract, and the plaintiff is his heir; Personal Injury Mutual Aid Coverage II of the instant mutual aid contract contains an exemption clause to the effect that compensation shall not be paid where the case falls under "a person who is an employee of a member with liability for compensation and who is entitled to receive accident compensation under the Industrial Accident Compensation Insurance Act" (provided that excess losses beyond the scope of compensation under the Industrial Accident Compensation Insurance Act shall be compensated) (hereinafter "the instant exemption clause"); the deceased finished operating the bus at around 23:43 on the day of the instant accident, drove home on his own motorcycle around midnight after finishing work, and was struck and killed at around 00:05 the following day by a bus driven by another driver employed by the non-party company; the deceased had been commuting to and from work using his own motorcycle, and the non-party company did not provide any separate means of commuting transportation to its drivers, etc. Based on these findings, the court below held that the deceased's death due to the instant traffic accident constituted a work-related accident, and accordingly deducted from the amount of pecuniary damages to be compensated by the defendant the funeral expenses of KRW 3,000,000 and the survivor's benefits of KRW 137,750,600 (KRW 105,962 × 1,300 days), which fall within the scope of compensation that the deceased or the plaintiff may receive under the Industrial Accident Compensation Insurance Act.
However, according to the record, the following facts can be ascertained: the deceased joined the non-party company on September 1, 2006 and had worked as a standby driver; at the time of the instant accident, the deceased's residence was located approximately 3 km from his workplace; the plaintiff filed a claim with the Korea Workers' Compensation and Welfare Service for survivor's benefits and funeral expenses in connection with the deceased's death, but was notified by the Korea Workers' Compensation and Welfare Service to the effect that "the deceased's death does not constitute a work-related accident, and therefore survivor's benefits, etc. cannot be paid," after which the plaintiff filed the instant action for damages against the defendant; and whether the case falls under "a case where accident compensation may be received under the Industrial Accident Compensation Insurance Act," to which the instant exemption clause applies, has been disputed since the first instance of this case, and the first instance court rejected the defendant's assertion regarding the application of the instant exemption clause. In light of the legal principles set forth above, examining these facts, it is difficult to conclude, based solely on the circumstances cited by the court below, that the payment of industrial accident insurance benefits is certain, or that the requirements for the application of the instant exemption clause—namely, that the deceased falls under a person who is an employee of a member with liability for compensation and who is entitled to receive accident compensation under the Industrial Accident Compensation Insurance Act—have been sufficiently proven.
Nevertheless, the court below, based solely on the circumstances stated in its reasoning, accepted the defendant's argument and excluded from the amount of damages payable to the plaintiff the amount equivalent to industrial accident insurance benefits, such as survivor's benefits, the payment of which remains uncertain. Such determination by the court below is erroneous in that it misapprehended the legal principles concerning the burden of proof and the degree of proof required in applying an exemption clause of an automobile mutual aid contract, and thereby failed to exhaust the necessary examination. The ground of appeal pointing out this error is with merit.
3. Accordingly, without examining the remaining grounds of appeal, the judgment below is reversed, and the case is remanded to the court below for further hearing and determination, as set forth in the Order.
Justice Yang Chang-soo (Presiding Justice), Jeon Su-an (Justice in Charge), Lee Sang-hoon