[Plaintiff, Appellee] Korea Workers' Compensation & Welfare Service
[Defendant, Appellant] Dongbu Fire & Marine Insurance Co., Ltd. (Litigation representative: Law Firm Gwangjang, Attorneys Jang Chan-ik and one other)
[Judgment Below] Daegu High Court Decision 2008Na5449 rendered on November 18, 2009
[Order]
The part of the judgment below concerning the defendant's loss on the claim for reimbursement of temporary disability benefits and disability benefits is reversed, and this part of the case is remanded to the Daegu High Court. The remainder of the appeal is dismissed.
[Reasoning]
The grounds of appeal are examined.
1. As to the grounds of appeal concerning the existence of the obligation to reimburse
Article 54(1) of the former Industrial Accident Compensation Insurance Act (공 산업재해보상보험법) (before its full amendment by Act No. 8373 on April 11, 2007; hereinafter the "Industrial Accident Compensation Insurance Act") (identical to Article 87(1) of the current Industrial Accident Compensation Insurance Act) provides: "Where the Service has paid insurance benefits for an accident caused by the act of a third party, the Service shall be subrogated to the right to claim damages against the third party held by the person who received the benefits, to the extent of the amount of such benefits: Provided, That this shall not apply where two or more business owners who are insured persons separately conduct one business at the same place, and an accident occurs due to the act of an employee of a business owner other than the employer of the injured employee." Here, a "third party" means a person, other than the insurer, the insured person (business owner), and the relevant beneficiary, who has no direct or indirect industrial accident compensation insurance relationship with the injured employee together with the insured business owner, and who bears liability for damages to the injured employee under tort law, the Guarantee of Automobile Accident Compensation Act (자동차손해배상 보장법), the Civil Act, or the State Compensation Act. Furthermore, in order to be a person eligible for insurance benefits under the provisions of the Industrial Accident Compensation Insurance Act, one must have been an employee under the Labor Standards Act (근로기준법) at the time of the accident, and in determining whether a person constitutes an employee under the Labor Standards Act, the determination must be made based on whether the person, in substance, provided labor to an employer in a subordinate relationship for the purpose of earning wages in a business or workplace, regardless of whether the form of the contract is an employment contract or a contract for work under the Civil Act (see, e.g., Supreme Court Decision 2006Da27093, decided May 15, 2008).
Based on the evidence it adopted, the court below found the following facts: that Nonparty 1, after completing business registration under the trade name "○○ Crane," had been engaged in the business of leasing the truck at issue in this case, which he owned; that Myeongseong Sanup Development Co., Ltd., which had received a subcontract for construction work from Kumho Industrial Co., Ltd., entered into a lease agreement with Nonparty 1 on October 4, 2005, for the lease of the truck at issue; that Nonparty 1, while operating the truck at issue at the construction site in accordance with the said lease agreement, caused the accident at issue in this case, injuring Nonparty 2, an employee of Myeongseong Sanup Development Co., Ltd. Based on these facts, the court below determined that Nonparty 1 did not provide labor in a subordinate relationship for the purpose of earning wages, and that since Nonparty 2 was injured due to Nonparty 1's operation of the truck at issue, Nonparty 1 had no direct or indirect industrial accident compensation insurance relationship with the injured employee, Nonparty 2; and accordingly held that the defendant, who had entered into a comprehensive automobile insurance contract with Nonparty 1, was obligated to respond to the plaintiff's claim for reimbursement. In light of the legal principles set forth above and the record, this determination by the court below is proper, and there is no error of misunderstanding the legal principles concerning "third party" under the main text of Article 54(1) of the Industrial Accident Compensation Insurance Act, as alleged in the grounds of appeal.
Furthermore, even though it may be consistent with the social insurance or liability insurance character of industrial accident compensation insurance to hold that the Korea Workers' Compensation & Welfare Service should bear the ultimate compensation liability for an occupational accident arising from the realization of a risk inherent in the workplace, such as the risk of machinery or equipment within the workplace, as noted above, Nonparty 1 did not provide labor in a subordinate relationship with the same business owner as the injured employee for the purpose of earning wages, and thus did not have, directly or indirectly, an industrial accident compensation insurance relationship with the injured employee. Moreover, the accident in this case arose from the operation of the truck at issue, which falls within the scope of risk assumed by the defendant through the conclusion of the insurance contract. In addition, the meaning that the plaintiff bears the ultimate compensation liability for industrial accidents is merely to establish, within the scope of application of industrial accident compensation insurance, the party ultimately liable in order to prevent a vicious cycle of reimbursement and re-reimbursement claims; it does not mean that the plaintiff compensates for or assumes the risk of any loss arising from an accident occurring at a single workplace regardless of the circumstances, cause, or perpetrator thereof. Therefore, the determination of the court below, which recognized the defendant's obligation to reimburse on the premise that the accident in this case constitutes "an accident caused by a third party" as provided in Article 54(1) of the Industrial Accident Compensation Insurance Act, is correct, and there is no error of misunderstanding the legal principles concerning "accident caused by a third party" as alleged in the grounds of appeal.
2. As to the grounds of appeal concerning the scope of the obligation to reimburse
Where the Korea Workers' Compensation & Welfare Service has paid to an injured employee who suffered an accident caused by the act of a third party temporary disability benefits exceeding the actual lost income during the period of absence from work, even if the sum of such temporary disability benefits and disability benefits falls within the scope of the injured employee's passive damages, since temporary disability benefits correspond to the lost income during the period of absence from work, they should be deducted only from the amount of damages corresponding to the lost income during the period of absence from work for which they were paid. Moreover, if the temporary disability benefits exceed the employee's actual lost income during the period of absence from work, the excess amount, having been paid in excess of the actually incurred damages in order to guarantee the minimum living standard of an employee undergoing medical treatment due to an injury or illness caused by occupational reasons, should, by its nature, be ultimately borne by the Korea Workers' Compensation & Welfare Service. In light of these considerations, the Korea Workers' Compensation & Welfare Service may not be subrogated to the injured employee's right to claim damages against a third party with respect to the portion of temporary disability benefits exceeding the lost income during the period of absence from work (see Supreme Court Decision 2002Da46867, decided December 10, 2002; Supreme Court Decision 2004Da48768, decided September 28, 2006). Furthermore, where an industrial accident occurs due to the joint tort of the insured person and a third party, in light of the principle of good faith and the ideal of judicial economy aimed at preventing circular reimbursement litigation, the Korea Workers' Compensation & Welfare Service must be deemed unable to seek reimbursement from the third party for the amount corresponding to the insured person's proportion of fault. Accordingly, the Korea Workers' Compensation & Welfare Service may, after deducting from the amount of damages to be compensated to the victim the amount corresponding to the insured person's proportion of fault, seek reimbursement from the third party only for the remaining difference, if any, between the insurance benefit amount and such deducted amount (see Supreme Court en banc Decision 2000Da62322, decided March 21, 2002; Supreme Court Decision 2002Da36303, decided September 24, 2002; Supreme Court Decision 2004Da68250, decided March 11, 2005; Supreme Court Decision 2005Da54463, decided November 25, 2005).
However, the court below, on the ground that the sum of the temporary disability benefits of 26,035,750 won and the disability benefits of 46,513,359 won, totaling 72,549,109 won, paid by the plaintiff to the injured employee Nonparty 2, was less than 92,496,018 won, which is the amount of Nonparty 2's total lost income damages excluding Nonparty 2's portion of fault, calculated the amount of the reimbursement claim based on the entire temporary disability benefits; and, in deducting the amount corresponding to the fault proportion of the insured person, Kumho Industrial Co., Ltd., deducted the amount corresponding to the insured person's fault proportion based on the insurance benefit amount rather than based on the amount of damages to be compensated to Nonparty 2, thereby calculating the amount of the reimbursement claim in this manner, and partially granted the plaintiff's claim for reimbursement.
However, in light of the legal principles set forth above, such determination by the court below is difficult to accept as it stands. The court below should have specifically calculated, among Nonparty 2's total lost income damages, the amount corresponding to the lost income during the period for which the temporary disability benefits were paid (which, upon calculation, appears to be less than the amount of temporary disability benefits paid by the plaintiff), and then, after determining whether the temporary disability benefits paid by the plaintiff fall within the scope of the amount to be compensated to Nonparty 2, should have calculated, on that basis, the amount of the reimbursement claim relating to the payment of temporary disability benefits. Furthermore, in deducting the amount corresponding to the insured person's fault proportion, the court below should have calculated the amount of the reimbursement claim relating to the payment of the temporary disability benefits and disability benefits by deducting the amount corresponding to the insured person's fault proportion based on the amount of damages to be compensated to Nonparty 2, rather than based on the insurance benefits. Meanwhile, since the scope of such right of reimbursement is a matter that the plaintiff must assert and prove, and the manner in which the amount of the reimbursement claim is to be calculated based on the plaintiff's assertions and evidence is left to the determination of the court, the fact that the defendant did not make any particular argument regarding such calculation method in the court below does not mean that an error in the calculation method cannot be raised as a ground of appeal.
Nevertheless, the court below partially granted the plaintiff's claim for reimbursement through the calculation method set forth above, and thus the judgment below contains an error of misunderstanding the legal principles concerning the scope of reimbursement under Article 54(1) of the Industrial Accident Compensation Insurance Act, and it is clear that such error affected the outcome of the judgment.
3. Conclusion
Therefore, the part of the judgment below concerning the defendant's loss on the claim for reimbursement of temporary disability benefits and disability benefits is reversed, and this part of the case is remanded to the court below for further deliberation and determination, and the remainder of the appeal is dismissed. This Judgment is rendered by the unanimous opinion of the Justices participating in the ruling, as set forth in the Order.
Justice Cha Han-seong (Presiding Justice), An Dae-hee (Justice in charge), Shin Young-cheol