In the case of the case, the insurance company shall bear the insurance liability if it knows that the insured meets the deductible.

Published:

2021-11-25

[brief case]] A machinery company leased the wheel loader it purchased to a company in Zhanjiang Port, and at the request of a company in Zhanjiang Port, insured the Guangzhou branch of a financial insurance company with third party liability insurance. When an employee of a machinery company communicated with a salesman of a financial insurance company Guangzhou branch about the insurance, he informed that the equipment was used for rental and the customer specified the amount of insurance compensation. Later, because the loader caused the death of others in the rental process, a machinery company to a financial insurance company Guangzhou branch claim. The Guangzhou branch of a financial insurance company refused to pay compensation on the grounds that the contract stipulated that the subject matter of insurance caused liability for damages to a third party during the lease and loan period, and the insurer was not responsible for compensation. The people's court held that the Guangzhou branch of a financial insurance company, knowing that the loader involved in the case was leased, that is, in line with the deductible, still underwrote it, and did not fulfill the obligation to prompt the exemption, and should be regarded as agreeing to compensate the third party for the damage caused by the lessee's lease of the loader involved in the case. focus of controversy] Whether the Guangzhou branch of a financial insurance company should bear the responsibility of paying insurance benefits. The court of first instance held that] A financial insurance company Guangzhou branch issued a "comprehensive insurance policy for engineering machinery and equipment" to a machinery company, and the legal relationship between the two parties was established. According to Article 16 of the the People's Republic of China Insurance Law, an insurance accident refers to an accident within the scope of insurance liability as stipulated in the insurance contract. In this case, a machinery company and a financial insurance company Guangzhou branch have a dispute over whether the accident involved constitutes an insurance accident stipulated in the comprehensive insurance of construction machinery and equipment plus the third party liability insurance clause. The main points of the dispute are as follows: 1. the right boundary of the three liability insurance of construction machinery and equipment; 2. whether a machinery company has fulfilled the obligation of disclosure of qualified insured to Guangzhou branch of a financial insurance company; 3. whether a machinery company has the obligation to pay work injury claims to the actual user of construction machinery. 1. on the right boundary of the three liability insurance of construction machinery and equipment. The "People's Property Insurance Company of China Construction Machinery and Equipment Comprehensive Insurance Additional Third Party Liability Insurance Clauses" stipulates that during the insurance period, the insured or its permitted user has an accident in the process of using the subject matter of the insurance, causing a third party If the party suffers personal injury or death or direct property damage, the insured shall be liable for economic compensation in accordance with the law, and the insurer shall be responsible for compensation in accordance with the additional insurance contract. In the following cases, the insurer shall not be liable for compensation for damages to third parties caused by the subject matter of insurance for any reason: during the period of theft, robbery, robbery, rental, loan, or transfer to another person. According to the second paragraph of Article 17 of the the People's Republic of China Insurance Law, for the clauses in the insurance contract that exempt the insurer from liability, the insurer shall, when concluding the contract, make provisions sufficient to attract the attention of the applicant on the insurance policy, insurance policy or other insurance certificates, and make a clear explanation of the content of the clause to the applicant in written or oral form; if there is no prompt or clear explanation, the clause shall have no effect. In this case, a machinery company claimed that the Guangzhou branch of a financial insurance company refused to compensate because of the insurance accident of loader 39 involved during the rental period. since the Guangzhou branch of a financial insurance company had no proof to prove that it had served the additional three insurance clauses for construction machinery and equipment to a machinery company, the Guangzhou branch of a financial insurance company had no right to refuse to compensate on the grounds of applying the exemption clause. However, in the absence of a reminder or express statement of the exemption clause under the aforementioned law, only the exemption clause does not have legal effect, and the definition of the concept of insurance accident and the boundary of rights in the insurance clause is not included here. Therefore, the exemption clause is not applicable in this case, and whether the Guangzhou branch of a financial insurance company makes a claim to a machinery company depends on whether the accident in question constitutes an insurance accident as defined in the "Comprehensive Insurance Clause for Construction Machinery and Equipment of the people's property Insurance Company of China. 2. the question of whether a machinery company has fulfilled its disclosure obligations to the Guangzhou branch of a financial insurance company. The insured involved in the case was a machinery company, and the actual user of the No. 39 loader involved and the person responsible for the accident were both a company in Zhanjiang Port. A machinery company claimed to have informed the Guangzhou branch of a financial insurance company that "several loaders to be insured are for rental use" and submitted a "notarial certificate" to the court of first instance, which confirmed the fact. Although Guangzhou Branch of a financial insurance company knows that the loader No. 39 involved in the case is for rental use, on the premise that the owner and the user can be the insured, the insurance policy issued by Guangzhou Branch of a financial insurance company shall be subject to the intention of a machinery company. A machinery company has not proved that it has made a clear intention to Guangzhou Branch of a financial insurance company to use a company in Zhanjiang Port as the insured, no evidence was submitted to prove that changes were made to the insured after the insurance policy was issued. It shall be deemed that a machinery company has not fully fulfilled its obligations of information disclosure and clear notification, and the liability arising therefrom shall be borne by a machinery company of the insured. According to daily life experience and trading habits, the insured should be independently confirmed by the insured. The insured does not take the initiative to propose, and the insurer has no way to know. A machinery company claims that the insured is determined by a financial insurance company Guangzhou Branch in accordance with relevant laws and regulations. The claim that it is not determined by the personal wishes of a machinery company lacks factual basis, and the court of first instance will not accept it. 3. on the question of whether a machinery company should settle claims to the actual user of loader 39 involved in the case. According to the "Road Traffic Accident Investigation Report", Chen Mou, the driver of loader 39 involved in the case, did not put up the funnel belt feeding and guiding pipe in advance according to the "Safety Technical Operation Regulations for 404 Berth Head Moving Elevated Hopper" during the process of driving the loader to move the funnel, causing the guiding pipe to collide with the cement frame of the conveyor belt nearby, and the guiding pipe fell off and hit the commander, causing the safety accident of the death of the branch. There is a direct legal causal relationship between Chen's illegal operation and Zhi's injury and death. The drainage pipe of loader 39 involved in the case is only the instrumental motivation of Zhi's death. The substantive motivation lies in Chen's negligence and illegal operation. In production, he failed to fulfill the duty of careful attention and the responsibility of ensuring the safety of others' lives, and he was responsible for the death of Zhi. From the perspective that Chen Mou is a staff member of a labor service company stationed in a company in Zhanjiang Port in the form of labor dispatch and Zhi Mou is a staff member of a company in Zhanjiang Port, in accordance with the provisions of the second paragraph of Article 34 of the the People's Republic of China Tort Liability Law (now Article 191 of the Civil Code), during labor dispatch, the dispatched staff member causes damage to others due to the performance of work tasks, the employer receiving the labor dispatch shall bear the tort liability; in accordance with the first paragraph of Article 11 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases, the employer shall be liable for compensation if the employee suffers personal injury in the course of employment activities. Therefore, a company in Zhanjiang Port, whether as an employer receiving labor dispatch or an employer in employment activities, shall bear tort liability for the legal consequences of the death of a work-related injury, which is the nature of the employer's liability rather than the "third party liability" in the third party liability insurance ". According to the fourth paragraph of Article 65 of the the People's Republic of China Insurance Law, liability insurance refers to insurance that is the subject of insurance based on the liability of the insured to a third party in accordance with the law. The aforementioned "third party" refers to the subject other than the insured and its related parties as stipulated in the liability insurance policy, which has no direct related interest and has the right to claim compensation from the insured. In the practice of liability insurance, the boundaries of insurance according to liability are very clear, and the liability of employees for personal injury belongs to the scope of employer liability insurance rather than third party liability insurance. In this case, a company in Zhanjiang Port is not the insured involved. According to the Agreement on Renewing the Lease of Four Longgong Long Arm Loaders signed between a machinery company and a company in Zhanjiang Port, a machinery company only needs to bear the third party liability insurance obligation with the purchase amount of not less than 200000 yuan. In addition, there is no other legal or agreed compensation obligation to a company in Zhanjiang Port, A machinery company claimed that the evidence of the obligation to pay compensation for the death of a third party caused by the loading vehicle within the scope of the three liability insurance for the construction machinery and equipment involved in the case was insufficient, and the court of first instance did not accept it. To sum up, the accident involved does not constitute a liability insurance accident for construction machinery and equipment. A machinery company's claim for compensation of 500000 yuan and interest from a financial insurance company Guangzhou Branch lacks factual and legal basis, and the court of first instance will not support it. The court of second instance held that] The focus of the dispute in the second instance of this case is whether the Guangzhou branch of a financial insurance company should bear the responsibility of paying insurance benefits. First of all, although the insured of the third party liability insurance contained in the insurance policy is a machinery company, but a machinery company has clearly informed the Guangzhou branch of a financial insurance company that the loader involved is for rental use, and also clearly informed that it is insured at the request of the customer, therefore, a financial insurance company Guangzhou branch is in the knowledge that the case involved in the loader is not a machinery company's actual use of the circumstances still agreed to a machinery company as the insured to be insured. However, from the "China People's Property Insurance Co., Ltd. Construction Machinery and Equipment Comprehensive Insurance Additional Third Party Liability Insurance Clause" submitted by a financial insurance company Guangzhou Branch, it can be seen that the insurance liability stipulates that "the insured shall bear the economic liability according to law, and the insurer shall be responsible for compensation according to the agreement of the additional insurance contract", and stipulates that the insurance subject is liable for damages to the third party during the lease and loan period, the insurer is not responsible for compensation. If, in accordance with the terms of the insurance, a machinery company, although insured, but ultimately can not get any compensation, this situation is obviously contrary to the original intention of a machinery company to insure third party liability insurance. Guangzhou Branch of a financial insurance company did not prompt a machinery company in good faith, but after the accident, it refused to pay compensation on the grounds of equipment rental, which was against integrity. Therefore, the Guangzhou branch of a financial insurance company, knowing that the loader involved in the case was leased, should be regarded as agreeing to compensate for the damage caused to a third party during the lease of the loader involved in the case. Secondly, a machinery company did not sign the insurance policy at the time of insurance, and a financial insurance company Guangzhou branch did not submit evidence to prove that it had served the insurance terms of third party liability insurance to a machinery company. Therefore, the Guangzhou branch of a financial insurance company did not inform a machinery company of the contents of the contract and the exemption clause, and did not fulfill the obligation of prompting. According to the provisions of the second paragraph of Article 17 of the the People's Republic of China Insurance Law, the clause exempting the Guangzhou branch of a financial insurance company from liability has no effect on a machinery company. Therefore, a financial insurance company Guangzhou branch claims not to bear the liability, lack of contract basis. Thirdly, according to the agreement on renewing the lease of four long arm loaders signed by a machinery company and a company in Zhanjiang port and the statement made by a machinery company when it insured the Guangzhou branch of a financial insurance company, a machinery company is responsible for handling the third party liability insurance for the loaders involved in the rental case and providing a copy of the insurance contract for the record. The purpose of this agreement between a company in Zhanjiang Port and a machinery company is to reduce losses by settling claims to the insurance company in the event of an accident involving a loader, otherwise the agreement will have no practical significance. As a machinery company is insured with a limit of 500000 yuan for third party liability insurance, a company in Zhanjiang port, after compensating the family members of the deceased, claimed the insurance compensation amount of 500000 yuan to a machinery company, which is in line with the contract purpose of the agreement on renewing the lease of four long arm loaders for third party liability insurance. A company in Zhanjiang Port has received compensation from a machinery company through rent deduction and said that a machinery company has claimed compensation from the Guangzhou branch of a financial insurance company. Therefore, it should be determined that a machinery company because of the accident to bear the economic liability, a machinery company has insurance interests, can claim insurance money to a financial insurance company Guangzhou branch. Lawyer Advice] In this case, the court held that the insurance company did not prompt the insured in good faith to meet a certain exemption reason when accepting the insurance, but refused to pay compensation on the basis of the exemption after the occurrence of the insurance accident, which was obviously contrary to good faith, and finally ruled that the insurance company should bear the insurance liability. Through this case, it is recommended that the insurance company perform its statutory obligations when accepting insurance, and the business management personnel should have a certain degree of professional sensitivity and careful review of the relevant information stated by the policyholder, especially in the case that the subject matter of the insurance stated by the policyholder is obviously In accordance with the exemption of the insurance contract, the policyholder should be promptly prompted and clearly explained, and attention should be paid to the retention of relevant evidence during the process, to prevent insurance claims disputes and adverse risks in the case of legal deductibles.

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