The insurer shall be liable for the loss of insured property caused by the insurance accident in a timely manner in accordance with the law.

Published:

2021-12-24

[brief case]] On December 9, 2014, a company submitted an "insurance policy" to a financial insurance Linyi branch company to insure comprehensive property insurance. Article 5 of the "Insurance Policy" stipulates that "during the insurance period, the insurer shall be responsible for compensation in accordance with the provisions of this insurance contract for the loss of the subject matter insured due to the following reasons: (ii)..., blizzard,..." Article 7 stipulates that "after the occurrence of an insurance accident, the insured shall pay the necessary and reasonable expenses to prevent or reduce the loss of the subject matter insured, the insurer is also responsible for compensation in accordance with this insurance contract." Article 26 stipulates that "after knowing the occurrence of an insurance accident, the insured shall (I) try his best to take necessary and reasonable measures to prevent or reduce the loss, otherwise, the insurer shall not be liable for compensation for the extended loss; the insurer shall (II) immediately notify the insurer ......; (III) protect the scene of the accident......". From the night of November 23 to 24, 2015, a sudden snowstorm in Pingyi County caused a company's steel structure warehouse to collapse, smashing some cans, soaking the outer package and shell of some cans, and damaging some cans in cold weather. On November 24, 2015, a financial insurance Linyi branch company sent personnel to the scene to check and inspect after receiving the report. On November 28, 2015, a company and a financial insurance Linyi branch jointly commissioned ocean assessment Jinan company to carry out insurance assessment for the accident. Dayang Public Estimation Jinan Company, together with the entrusting parties, conducted a survey of the accident site and inventory of canned goods in stock. During this period, it also checked and verified the accounting books and custody accounts of a company. Due to the dispute over the scope and amount of insurance compensation, a company sued a financial insurance Linyi branch company to the court. focus of controversy] How to determine the loss in this case, whether there is an extended loss, and if there is an extended loss, how to determine the amount and liability. The court of first instance held that] A company to a financial insurance Linyi branch company submitted the "insurance policy" to insure the property comprehensive insurance and paid the premium in accordance with the contract, the insurance company issued the "insurance policy", the insurance contract was established and effective. Documents such as the Insurance Policy, the Insurance Policy and the Insurance Clauses are valid legal documents, and both parties shall enjoy rights and assume obligations in accordance with the principle of maximum good faith in accordance with the contract. How to determine the loss in this case, whether there is an extended loss, and if there is an extended loss, how to determine the amount and liability. The parties have no dispute over the average price of $6500 per ton set by the public assessor, only over the actual amount of loss. Therefore, the actual amount of canned losses should be identified before determining the amount of the loss. In this case, both parties and the assessor agreed during the on-site inspection that there were three types of canned losses in the accident, which are described below. 1. The first category is crushing deformation and crushing. During the site survey, the three parties agreed that the deformed part of the iron tank was presumed to be a total loss. The 314.916 tons were found to be a total loss. 2. The second type of loss is the water-wet type. Water wet cans total 1319.637 tons. At the time of the inspection, the insurer believed that the cans were stored in multiple layers, with the outer layer of the cans being wet but not the inner layer. A company holds the opposite view, arguing that such water-wet cans should actually be a total loss. This kind of loss is determined by the assessor to be 1319.637 × 50%= 659.82 tons when determining the loss. The court of first instance held that at the time of the accident, the loss of water and moisture was 50%, which was more objective. However, when the plaintiff filed a lawsuit, because the cans were not disposed of in time, the presumption of total loss was more in line with the objective situation, and recognized the plaintiff's claim of a company in accordance with total loss. 3. The third category is the part that was in good condition at the time of the on-site inspection but the plaintiff claimed the loss of freezing. On page 7 of the Assessment Report, the survey quantity of cans stored in the new warehouse at the accident site with good appearance is recorded, totaling 839.189 tons. On pages 8 to 13 of the Assessment Report, it is recorded that the total number of cans transferred to the bonded area warehouse for storage is 1562.508 tons. The canned food stored in the above two places is 2401.70 tons. According to the evidence submitted by the plaintiff, on September 6, 2016, according to the requirements of the environmental protection department, the plaintiff disposed of 598.43 tons of canned 581 tons without the consent of the defendant. For the plaintiff's own disposal of 598.43 tons of canned 581, the defendant was not notified in the disposal process, and the consequences of the responsibility should be borne by the plaintiff himself. According to the on-site inspection records of the intact parts in the assessment report, it can be confirmed that the original and the defendant only carried out appearance identification for the disaster-stricken cans with intact appearance, and no quality inspection has been carried out for the internal quality problems of the disaster-stricken cans. On September 9, 2016, the plaintiff once again reported damage to the aforementioned cans with good appearance. The appraiser also only fixed the damage to the expansion tank part with doubtful appearance according to the proportion of 3% of the total amount of the part. The court held that the storage, custody and quality requirements for cans were different from those for ordinary products. When the plaintiff filed the lawsuit, one year and three months had passed since the accident, and these cans had rotted and deteriorated and should be presumed to be total loss. However, the plaintiff has not submitted evidence to prove the category of the corresponding three types of cans, I .e. 598.43 tons of cans 581 disposed of by the plaintiff, and the plaintiff shall bear the adverse consequences for its disposal without notifying the defendant. Considering the above three types of losses, the actual losses of the plaintiff should fall within the scope of compensation: 3437.823 tons (314.916 tons +1319.637 tons +2401.70 tons -598.43 tons), of which 2391.039 tons (1319.637 tons × 50% +2401.70 tons -598.43 tons -72.05 tons) belong to the expanded losses. With regard to the issue of expanding liability for losses, the court held that the defendant insurance company did not allow the plaintiff to dispose of damaged canned products, and the decay and deterioration of canned products caused by long-term storage was an important reason for the expansion of losses, but as a manufacturer, the plaintiff knew that canned products had strict requirements for storage and shelf life, and did not inform the insurance company of the relevant requirements, and he also had an unshirkable responsibility for expanding losses, both parties are liable for fault. The difficulty of this case is whether the calculation of claims for expanded losses applies to insufficient insurance. The court held that the expanded losses are losses caused by fault on the basis of losses caused by normal disasters, mainly expanded losses caused by human factors, which are caused by fault of both parties, not losses caused by normal disasters. The calculation method of insufficient insurance should not be applied, but should be directly based on the fault principle, calculate the fault liability that both parties should bear. The court of second instance held that] On how to determine the expansion of the loss and how to settle the claim. The components of the expanded losses determined by the court of first instance were the losses caused by the failure to deal with the products involved in the case in time after the snow disaster. Although this part of the product was transferred to another place after the disaster, it has not been treated for a long time and has deteriorated and damaged. The recording of the manager of Tianan Company submitted by a company also confirmed that Tianan Company required that the cans that could not be moved should not be processed. According to the on-site inspection records of the intact parts in the assessment report, it can be confirmed that both parties have only carried out appearance identification for the disaster-stricken cans with intact appearance, and have not carried out quality inspection for the inherent quality problems of the disaster-stricken cans. On September 9, 2016, a company reported another damage to the aforementioned cans with good appearance. The appraiser also only fixed the damage to the expansion tank part with doubtful appearance according to the proportion of 3% of the total amount of the part. For canned storage, storage and quality requirements are different from the general product, in a company filed a lawsuit, from the accident has been between one year and three months, these cans have been rotten deterioration, should be presumed to be a total loss. This loss is a financial insurance Linyi branch company does not allow a company to dispose of, resulting in long-term storage decay and deterioration, is the cause of the loss, should be an insurance accident. In addition, a company disposed of 598.43 tons of canned food, which was confirmed by the decision of Pingyi County Environmental Protection Bureau to order correction of illegal acts and the certificate issued by Pingyi County Lu Kang Cleaning Co., Ltd., which should be recognized as the expanded loss. The above for the expansion of the loss, a financial insurance Linyi branch company also did not provide evidence to prove that a company did not take the necessary measures, so the loss should be settled in accordance with the insurance contract. The retrial court held that] In accordance with the provisions of the first paragraph of Article 23 of the Insurance Law, the insurer shall, after receiving the request for compensation or payment of insurance benefits from the insured or beneficiary, make an approval in a timely manner; if the situation is complicated, the approval shall be made within 30 days, unless otherwise agreed in the contract. The insurer shall notify the insured or the beneficiary of the result of the verification; if it is an insurance liability, it shall perform the obligation of compensation or payment of insurance benefits within 10 days after reaching an agreement with the insured or beneficiary on compensation or payment of insurance benefits. According to the above-mentioned legal provisions, after receiving the insured or beneficiary's claim for insurance payment, the insurer shall fulfill the three obligations of verification, notification and payment in accordance with the law, and there is a logical relationship between the three. As far as this case is concerned, after the insured property involved in the case has suffered a snow disaster, in addition to the respondent's active rescue, the applicant, as an insurer, should also timely check and verify the insured property loss caused by the insurance accident according to the characteristics of the insured property. If the insurer fails to perform the aforementioned legal obligations in time according to law, the insurer shall bear corresponding responsibilities for the expanded losses caused thereby. The insured property involved in the case is canned food that cannot be stored for a long time, especially after the snow disaster, the applicant should take active measures to take corresponding derogation measures to properly deal with the damaged food. The case was found in the original trial. Although the insured property involved in the case was transferred to another place after the snow disaster, it was not dealt with for a long time, which caused the product to deteriorate and caused the property loss to be enlarged. The expansion of the loss was related to the applicant's failure to perform the aforementioned insurance law in accordance with the law. The original judgment that the applicant was responsible for the expanded loss of the product involved has factual and legal basis. Lawyer Advice] After the occurrence of an insurance accident, it is the legal obligation of the insurer to approve the request for compensation or payment of insurance benefits by the insured or beneficiary in a timely manner in accordance with the law. In this case, although the insurance contract for the "expansion of loss" agreed to an exemption clause, the insurer also gave a reminder of the exemption clause, but the exemption clause does not exempt the insurer for failure to perform the statutory obligations for the expansion of the loss of the corresponding liability. Through this case, it is suggested that after the occurrence of an insurance accident, the insurance company should, in accordance with the characteristics of the insured property, timely approve the loss of the insured property caused by the insurance accident in accordance with the law, so as to avoid the corresponding liability due to the existence of performance negligence.

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