[Plaintiff, Appellee] Korea Workers' Compensation & Welfare Service
[Defendant, Appellant] Samsung Fire & Marine Insurance Co., Ltd. (Attorneys Moon Tap-seung and 1 other, Counsel for the defendant)
[Judgment Below] Busan High Court Decision 2015Na55113 decided April 21, 2016
[Order]
The judgment below is reversed, and the case is remanded to the Busan High Court.
[Reasoning] The grounds of appeal are examined.
1. Where an industrial accident occurs due to the joint tort of an insured and a third party, in light of the principle of litigation economy aimed at preventing circular indemnity litigation and the principle of good faith, the Korea Workers' Compensation & Welfare Service (근로복지공단) may not claim indemnity from the third party for the amount corresponding to the insured's proportion of fault. Rather, it must first deduct from the insurance benefit amount the portion corresponding to the insured's proportion of fault out of the damages to be compensated to the injured worker (provided that, since the amount that may be claimed by way of indemnity is limited to whichever is smaller between the insurance benefit amount and the amount of damages, where the injured worker's damages are less than the insurance benefit amount, the insured's proportion of fault must be deducted from that amount of damages), and may claim indemnity from the third party only for the remaining difference, if any (see Supreme Court en banc Decision 2000Da62322 decided March 21, 2002; Supreme Court Decision 2007Da82059 decided May 13, 2010, etc.).
This legal principle applies equally where an industrial accident occurs due to the joint tort of an employee of the insured and a third party, and the insured bears employer's liability under Article 756 of the Civil Act (민법) as the employer of that employee for the damages arising therefrom. In such a case, the Korea Workers' Compensation & Welfare Service may not claim indemnity from the third party for the portion borne by the insured corresponding to the employee's proportion of fault.
2. According to the reasoning of the judgment below and the evidence duly adopted by the court below, the following facts may be found.
(1) The Plaintiff is a corporation entrusted by the Minister of Employment and Labor with the administration of industrial accident compensation insurance business pursuant to the Industrial Accident Compensation Insurance Act (산업재해보상보험법). Non-party 1 (hereinafter "the victim") and Non-party 2 are employees of Hyundai Heavy Industries Co., Ltd. (hereinafter "Hyundai Heavy Industries"), an insured under the industrial accident compensation insurance. The Defendant is the comprehensive insurer of the 1-ton truck bearing license plate number (vehicle number 1 omitted) (hereinafter "the offending vehicle").
(2) At around 08:50 on September 21, 2012, Non-party 3, while driving the offending vehicle, proceeded straight through the intersection in front of Yangsan Gigong, located in Jeonggwan-myeon, Gijang-gun, Busan, heading from the direction of Gomnae Tunnel toward Ilgwang, in violation of the traffic signal, and collided with an Avante passenger vehicle bearing license plate number (vehicle number 2 omitted) (hereinafter "the victim vehicle"), which was being driven by Non-party 2, who was making a left turn in accordance with the signal from the direction of Ilgwang toward Jeonggwan Industrial Complex, thereby causing the accident (hereinafter "the instant accident").
(3) At the time of the instant accident, the victim was riding in the front passenger seat of the victim vehicle, and as a result of the instant accident sustained injuries including diffuse cerebellar injury, intraventricular and intracerebral hemorrhage, pelvic fracture, and traumatic subdural hemorrhage.
(4) The main cause of the instant accident was Non-party 3's violation of the duty to obey traffic signals and to drive safely as the driver of the offending vehicle; however, Non-party 2's negligence, as the driver of the victim vehicle, in failing to check whether vehicles in the opposing lane had stopped, also contributed to the occurrence of the instant accident and the expansion of the damages.
(5) The Plaintiff recognized the instant accident as an occupational accident and accordingly paid the victim medical care benefits (treatment expenses) of KRW 47,983,870, temporary disability benefits of KRW 53,141,450, and a lump-sum disability compensation of KRW 115,808,150.
(6) The "cause and circumstances of the accident" section of the application for industrial accident medical care benefits (Exhibit A No. 2-1) states as follows: "While on a domestic business trip for education on Busan Kongsberg DP System Maintenance (September 17 to September 21), on September 21 (Friday), while riding in Non-party 2's passenger vehicle en route to Kongsberg's headquarters in Jeonggwan, at around 08:40, while making a left turn at the Jeonggwan Industrial Complex intersection, a Porter (1-ton) vehicle proceeding straight ahead in violation of the signal collided with the front passenger seat, causing injury."
3. Examining these facts in light of the legal principles set forth above:
The instant accident occurred due to the concurrence of negligence between Non-party 2, an employee of Hyundai Heavy Industries, and Non-party 3, a third party. Since it is difficult to find that Hyundai Heavy Industries, the insured, engaged in conduct having a related joint character, Hyundai Heavy Industries does not bear joint tort liability with respect thereto. However, if Non-party 2's tortious act was, in objective appearance, related to the execution of the business of his employer, Hyundai Heavy Industries, then, absent any assertion or proof that Hyundai Heavy Industries exercised due care in the selection and supervision of Non-party 2, Hyundai Heavy Industries bears employer's liability. In such a case, the Plaintiff may not claim indemnity from the Defendant, the insurer of Non-party 3, for the portion borne by Hyundai Heavy Industries corresponding to Non-party 2's proportion of fault.
Nevertheless, the court below, without examining whether Hyundai Heavy Industries bears employer's liability, determined that the Plaintiff could claim indemnity from the Defendant for the entire amount of insurance benefits paid to the victim (however, since the amount of the victim's damages for treatment expenses is less than the insurance benefit amount, for that amount of damages instead), solely on the ground that the instant accident did not arise from the joint tort of Hyundai Heavy Industries and Non-party 3.
Such determination by the court below contains an error of failing to exhaust its examination by misapprehending the legal principles concerning the scope of the Korea Workers' Compensation & Welfare Service's right of indemnity against a third party.
4. Therefore, without determining the remaining grounds of appeal, the judgment below is reversed, and the case is remanded to the court below for further hearing and determination. This judgment is rendered with the unanimous consent of the participating Justices as set forth in the Order.
Justice Min Yu-sook (Presiding Justice), Kim Chang-seok, Cho Hee-dae (Justice in charge), Kim Jae-hyung