[Plaintiff, Appellant] Hyundai Marine & Fire Insurance Co., Ltd. (Attorneys Jang Han-gak and 1 other, Counsel for the plaintiff)
[Defendant, Appellee] Non-appealing Co-Defendant of the lower court 3 (Attorney Lim Sun-cheol, Counsel for the defendant)
[Judgment Below] Seoul District Court Decision 98Na24685 rendered October 23, 1998
[Order]
The judgment below is reversed, and the case is remanded to the Panel Division of the Seoul District Court.
[Reasoning]
The grounds of appeal are examined.
1. Summary of the Judgment of the Court of First Instance
According to the reasoning of the judgment of the court of first instance as cited by the court below, the court of first instance found the following facts: On May 20, 1994, the Plaintiff entered into an employer's liability insurance contract for industrial accident compensation (근로자재해보장책임보험) with non-party Hanyoung Comprehensive Construction Co., Ltd. (hereinafter "Hanyoung Construction"), under which the Plaintiff agreed to compensate for losses borne by Hanyoung Construction arising from occupational accidents suffered by Hanyoung Construction's employees at the urban railway construction site being constructed by Hanyoung Construction; Hanyoung Construction leased the crane at issue in this case, together with the operator, Co-Defendant of the lower court 1, who was an employee of Co-Defendant of the lower court Shinyang Heavy Equipment Co., Ltd. (hereinafter "Shinyang Heavy Equipment"), the named insured under a comprehensive automobile insurance policy covering the crane at issue as the insured vehicle, and used the crane while under such lease; on October 4, 1994, due to the concurrence of the negligence of Co-Defendant of the lower court 1, an employee of Shinyang Heavy Equipment, and the negligence of non-parties 1 and 2, employees of Hanyoung Construction, an accident occurred in which non-party 3, an employee of Hanyoung Construction, sustained injuries; the Plaintiff, as the insurer under the aforementioned employer's liability insurance for industrial accident compensation, subrogating Hanyoung Construction, paid and settled with non-party 3 the amount of KRW 20,000,000 for lost income damages and consolation money, after deducting the disability benefits paid under the Industrial Accident Compensation Insurance Act (산업재해보상보험법); and Article 10, Paragraph 2, Item 4 of the terms and conditions of the comprehensive automobile insurance policy at issue provides that "no compensation shall be paid where a person who is an employee of the insured bearing liability for compensation and who is entitled to receive accident compensation under the Labor Standards Act (근로기준법) dies or is injured." Based on these findings, the court of first instance rejected the Plaintiff's argument—that Shinyang Heavy Equipment, the employer of Co-Defendant of the lower court 1, and Hanyoung Construction, the employer of non-parties 1 and 2, were jointly liable as joint tortfeasors to non-party 3 for the accident, and that since the Plaintiff, subrogating Hanyoung Construction, paid non-party 3 the damages arising from the accident, the Plaintiff could, by way of insurer subrogation, exercise a right of indemnity against Shinyang Heavy Equipment, which likewise bore fault liability for the accident, for the portion of the jointly discharged damages attributable to Shinyang Heavy Equipment's share, and that the Defendant, as Shinyang Heavy Equipment's insurer, was obligated to pay the Plaintiff such indemnity—on the ground that Hanyoung Construction, having leased and used the crane from Shinyang Heavy Equipment, the named insured, constituted a consenting insured (승낙피보험자), and that the victim, non-party 3, fell under the category of "an employee of the insured who is entitled to receive accident compensation under the Labor Standards Act" under the terms of the comprehensive automobile insurance policy, such that the above exemption clause applied.
2. Determination
The clause in the general terms and conditions of comprehensive automobile insurance providing that "no compensation shall be paid where a person who is an employee of the insured bearing liability for compensation and who is entitled to receive accident compensation under the Labor Standards Act dies or is injured due to a bodily injury accident" is to be construed as prescribing the insurer's exemption from liability based on the personal relationship and compensation relationship existing between the insured bearing liability for compensation and the victim. Accordingly, where a single insured event gives rise to liability on the part of multiple insureds, in determining whether the above exemption clause applies, absent special circumstances, the existence of the personal relationship that constitutes the requirement for application of the exemption clause must be determined separately as to each insured, and the insurer's exemption from liability must be determined accordingly, even if the terms and conditions do not separately provide for individual application of the exemption clause as to each insured (see Supreme Court Decision 87Da2276 delivered on June 14, 1988; Supreme Court en banc Decision 97Da19403 delivered on April 23, 1998, etc.). This legal principle of individual application of the exemption clause also applies in cases where the insured event arose from the joint tort of multiple insureds, and where, after one insured (A) discharges another insured (B) from liability through A's own disbursement, A directly claims indemnity against the insurer for the portion of B's liability by way of exercising A's right of indemnity against B. In such a case, the existence of the personal relationship, which is the requirement for application of the exemption clause, must be determined by reference to the person who bears the obligation to pay the indemnity giving rise to the insurance claim, and the insurer's exemption from liability must be determined accordingly. Therefore, the insurer may not assert its exemption, based on the exemption clause applicable to insured A, against a claim for indemnity concerning the portion of liability borne by insured B.
In the present case, if the facts are as found by the court of first instance, then, although a personal relationship as prescribed under Article 10, Paragraph 2, Item 4 of the aforementioned terms and conditions existed between the victim non-party 3 and the consenting insured Hanyoung Construction, no such personal relationship existed between non-party 3 and Shinyang Heavy Equipment, the named insured who is the party obligated to pay indemnity; accordingly, no ground for exemption under the same item exists as to Shinyang Heavy Equipment vis-à-vis the Defendant. Therefore, with respect to the claim seeking payment from the Defendant of the indemnity corresponding to Shinyang Heavy Equipment's share of liability, asserting the application of the above exemption clause based on the personal relationship existing between non-party 3 and Hanyoung Construction contravenes the principle of individual application of the exemption clause and cannot be permitted.
Nevertheless, the court below, in upholding the judgment of the court of first instance which dismissed the Plaintiff's claim seeking payment from the Defendant of the indemnity corresponding to Shinyang Heavy Equipment's share of liability on the ground of the exemption clause based on the personal relationship between non-party 3 and Hanyoung Construction, erred by misapprehending the legal principle concerning the individual application of the exemption clause, and such error affected the conclusion of the judgment.
3. Accordingly, the judgment below is reversed, and the case is remanded to the court below for further hearing and determination, all Justices concurring in this opinion, and it is so decided as set forth in the Order.
Justice Cho Mu-je (Presiding Justice), Jeong Gwi-ho, Kim Hyeong-seon (Justice in charge), Lee Yong-hun