2018.09.27

2017 (Ju) 659

Minshu Vol. 72, No.4

Judgment concerning whether the harmed person is allowed to receive payment of the amount of damages prior to the government, if the total amount which sums up the amount of a claim under Article 16, paragraph (1) of the Act on Securing Compensation for Automobile Accidents exercised by the harmed person and the amount of the aforementioned claim transferred to and exercised by the government pursuant to Article 12-4, paragraph (1) of the Industrial Accident Compensation Insurance Act exceeds the amount of automobile liability insurance

Case claiming insurance

Judgment of the First Petty bench, partially dismissed and partially quashed and remanded by the Supreme Court

Tokyo High Court, Judgment of December 22, 2016

1. When a person who was harmed in a traffic accident exercises a claim under Article 16, paragraph (1) of the Act on Securing Compensation for Automobile Accidents for damage which are not yet covered even after the harmed person receives benefits under the Industrial Accident Compensation Insurance Act, the harmed person is allowed to receive payment of the damages from an insurance company of automobile liability insurance, up to the limit of the amount of automobile liability insurance, prior to the government, even if the aforementioned claim transferred to the government pursuant to Article 12-4, paragraph (1) of the Industrial Accident Compensation Insurance Act is exercised and the total amount which sums up the amount of the aforementioned claim held by the harmed person and the amount of the aforementioned claim transferred to the government exceeds the aforementioned amount of the insurance.
2. “The period necessary to look into the accident caused by the operation of the automobile subject to the claim and verify the amount of damages” referred to in Article 16-9, paragraph (1) of the Act on Securing Compensation for Automobile Accidents means a reasonable period necessary for an insurance company to conduct an investigation which is required for looking into an accident subject to a claim of payment of the amount of damages exercised by a harmed person and verifying the amount of the damages. Moreover, it is required to decide a length of the period, considering concrete circumstances of an individual case, including contents of documents which are related to the accident or the amount of the damages and obtained by the insurance company and a time when the documents are obtained, presence or absence of arguments on the amount of the damages and their contents, progress of negotiation etc. between the harmed person and the insurance company.

(Concerning 1.) Article 16, paragraph (1) of the Act on Securing Compensation for Automobile Accidents, and Article 12-4, paragraph (1) of the Industrial Accident Compensation Insurance Act
(Concerning 2.) Article 16-9, paragraph (1) of the Act on Securing Compensation for Automobile Accidents

Act on Securing Compensation for Automobile Accidents
(Filing a Claim with the Insurer for Damages)
Article 16 (1) If a person in possession becomes liable to compensate for damage as under Article 3, the injured party may file a claim with insurer for the insurer to pay the injured party damages of up to the amount of insurance coverage, pursuant to Cabinet Order.
(Due Date for Performance as Regards Payment of Damages under Article 16, Paragraph (1))
Article 16-9 (1) An insurer is not liable for delays following receipt of a claim for the payment of damages under Article 16, paragraph (1), until the necessary period of time has passed to look into the accident caused by the operation of the automobile subject to the claim and verify the damages.
Industrial Accident Compensation Insurance Act
(Accident Arisen from an Act by a Third Party)
Article 12-4　(1)　When the government pays insurance benefits for an accident which is a cause of payment of insurance benefits and arises from an act by a third party, the government shall acquire a claim for damages held by a person who receives the insurance benefits against the third party, up to the limit of the amount of the benefits paid.

1. The final appeal made by the defendant at first instance is dismissed.
2. Of the judgment in prior instance, the part dismissing a claim for payment of delay damages for 3,440,000 Japanese yen which cover a period from February 20, 2015 to a day before a day when this judgment becomes final and binding is quashed and remanded to the Tokyo High Court.
3. The rest of the final appeal made by the plaintiff at first instance is dismissed.
4. The cost of the final appeal pertaining to the first paragraph shall be borne by the defendant at first instance and the cost of the final appeal pertaining to the preceding paragraph shall be borne by the plaintiff at first instance.

I. Outline of the case
1. This is a case in which the plaintiff at first instance, who was harmed as a result of a collision accident, makes a claim against the defendant at first instance, who is an insurance company of automobile liability insurance (hereinafter referred to as “auto liability insurance”) covering an offending automobile as an insured automobile, for payment of the amount of damages of up to the amount of insurance coverage and delay damages for payment of the above damages which cover a period from a day following a complaint service date to complete payment of the above damages, in accordance with Article 16, paragraph (1) of the Act on Securing Compensation for Automobile Accidents.
2. The outline of facts etc. related to the case which duly became final and binding in the judgment in prior instance is as described below:
(1) On September 8, 2013, while driving a medium-sized truck as a truck driver, the plaintiff at first instance collided head-on with the offending automobile that crossed a center line from an opposite traffic lane and entered a lane where the plaintiff at first instance was driving due to its driver’s negligence, such as driving without gazing forward etc. (hereinafter, this accident shall be referred to as the “Accident”). Due to the Accident, the plaintiff at first instance suffered injuries, such as a rotator cuff tear in the left shoulder, and then was left with residual disabilities, such as dysfunction in the left shoulder joint.
(2) At the time of the Accident, a contract of the auto liability insurance, an insurance company of which was the defendant at first instance, had been concluded for the offending automobile.
(3) The government approved that the Accident fell under the category of employment injuries arisen from an act by a third party and paid to the plaintiff at first instance medical compensation benefits, temporary absence from work compensation benefits and disability compensation benefits as benefits under the Industrial Accident Compensation Insurance Act (hereinafter, the benefits shall be referred to as “industrial accident insurance benefits” and the Act shall be referred to as the “Industrial Accident Insurance Act”) by February 2015. Thus, the claim for payment of the amount of the damages pertaining to the Accident held by the plaintiff at first instance against the defendant at first instance under Article 16, paragraph (1) of the Act on Securing Compensation for Automobile Accidents (hereinafter referred to as a “direct claim”) was transferred to the government up to the limit of the amount of the aforementioned industrial accident insurance benefits, pursuant to Article 12-4, paragraph (1) of the Industrial Accident Insurance Act.
(4) The amount of damage pertaining to the Accident, which is not yet covered even after the plaintiff at first insurance received the aforementioned industrial accident insurance benefits, is 3,035,476 Japanese yen for the injuries and 2,900,000 Japanese yen for the residual disabilities. In addition, the amount of auto liability insurance (hereinafter referred to as the “amount of auto liability insurance”) pertaining to the Accident is 1,200,000 Japanese yen for the injuries and 2,240,000 Japanese yen for the residual disabilities.
(5) In February 2015, the plaintiff at first instance filed this lawsuit, arguing that the amount of auto liability insurance pertaining to the Accident was 1,200,000 Japanese yen for the injuries and 4,610,000 Japanese yen for the residual disabilities.
3. The court of prior instance upheld the claim exercised by the plaintiff at first instance, to the extent of payment of 3,440,000 Japanese yen that was a sum total of the amount of auto liability insurance as described above in 2. (4) and delay damages for the above damages which covered a period from a day when the judgment in prior instance became final and binding to complete payment of the above damages.
II. Concerning the reasons for the petition for acceptance of final appeal argued by the counsels for the appellant of 2017 (Ju) 660, OGATA Akihito and AOYAMA Yuichi:
1. The appellant argues to the effect that, if the total amount which sums up the amount of a direct claim held by a person whose life or body is harmed by operation of an automobile (hereinafter referred to a “harmed person”) and the amount of the direct claim that is transferred to the government pursuant to Article 12-4, paragraph (1) of the Industrial Accident Insurance Act exceeds the amount of auto liability insurance, the harmed person receives payment of the amount of damages up to the limit of the amount of auto liability insurance prorated under a ratio of the amount of the direct claim to the aforementioned total amount.
2. However, it is appropriate to construe that, when a harmed person exercises a direct claim for compensation for damage which are not yet covered even after the harmed person receives industrial accident insurance benefits (hereinafter referred to as “uncovered damage”), the harmed person is allowed to receive payment of the damages from an insurance company of auto liability insurance in accordance with Article 16, paragraph (1) of the Act on Securing Compensation for Automobile Accidents up to the limit of the amount of auto liability insurance, prior to the government, even if the direct claim transferred to the government pursuant to Article 12-4, paragraph (1) of the Industrial Accident Insurance Act is exercised and the total amount which sums up the amount of the direct claim held by the harmed person and the amount of the direct claim transferred to the government exceeds the amount of auto liability insurance. The reasons are as follows:
(1) The purpose of Article 16, paragraph (1) of the Act on Securing Compensation for Automobile Accidents is to protect a harmed person by securing compensation for the harmed person at least up to the limit of the amount of auto liability insurance, when liability for damages held by a person in possession under Article 3 of the Act arises (see Article 1 of the Act). Therefore, it is against the purpose of Article 16, paragraph (1) of the Act if the harmed person does not receive payment of the entire amount of auto liability insurance although the amount of uncovered damage exceeds the amount of auto liability insurance.
(2) Article 12-4, paragraph (1) of the Industrial Accident Insurance Act provides that, when the government pays industrial accident insurance benefits for an accident which arises from an act by a third party, a claim for damages held by a person eligible to receive the benefits against the third party is transferred to the government, up to the limit of the amount of the benefits paid. It should be construed that the paragraph is included in the Act because, if a part of damage incurred by a person eligible to receive industrial accident insurance benefits is covered by the benefits, it should not be allowed for the person to make another claim for compensation for the damage already covered against the third party and, on the other hand, there is no ground for the third party liable for the damage to be exempted from the liability for the damage already covered. In light of the purpose of the Act, such as insurance benefits being paid in order to provide immediate and fair protection for workers’ injuries etc., it should not be construed that the main purpose of the paragraph is to cover the amount of industry accident insurance benefits paid by the government by a claim for damages transferred to the government. Therefore, it should be said that it is inconsistent with the purpose of the paragraph if a harmed person’s direct claim for uncovered damage is prevented from being exercised as a result of the direct claim transferred to the government pursuant to the paragraph being exercised.
3. For the reasons stated above, the determination of the court of prior instance that is consistent with this conclusion is acceptable as justifiable. The appellant's argument is not acceptable.
III. Concerning the reason III for the petition for acceptance of final appeal argued by the counsel for the appellant of 2017 (Ju) 659, IDA Yoshinori:
1. The court of prior instance made the following determination under the aforementioned facts and determined that a claim for payment of delay damages which cover a period until a day before a day when the judgment in prior instance becomes final and binding should be dismissed.
If a harmed person exercises a direct claim in a lawsuit, the court should calculate damages without using the criteria of payment provided in Article 16-3, paragraph (1) of the Act on Securing Compensation for Automobile Accidents and render a judgment ordering payment of the damages. In this case, the insurance company cannot confirm the amount of the damages until the aforementioned judgment becomes final and binding. Thus, it should be construed that, in this case, “the period necessary to look into the accident caused by the operation of the automobile subject to the claim and verify the amount of damages” referred to in Article 16-9, paragraph (1) of the Act means a period until the aforementioned judgment becomes final and binding unless there are special circumstances, such as the insurance company making the lawsuit retarded. Therefore, in the current case, as to which no special circumstance is recognized, the defendant at first instance is not liable for delay in performing liability to pay the damages until the judgment in prior instance becomes final and binding.
2. However, the aforementioned determination of the court of prior instance is not acceptable. The reasons are as follows:
Article 16-9, paragraph (1) of the Act on Securing Compensation for Automobile Accidents provides to the effect that the insurance company is not liable for delay in performing liability to pay damages under Article 16-1, paragraph (1) of the Act until a period necessary to look into an accident caused by operation of an automobile subject to a claim of payment of the damages and verify the amount of the damages passes. It should be construed that, because the insurance company cannot make a payment for auto liability insurance unless it conducts a necessary investigation on an event for which the amount of the damages is to be paid, this provision provides, as a special provision to Article 412, paragraph (3) of the Civil Code, to the effect that the insurance company is not liable for delay in performing liability to pay the damages until a period required to conduct the investigation passes after a claim of payment is made. On the other hand, it should be also construed that this provision limits what should be verified by the investigation to the minimum and gives consideration to a request for immediate payment.
Thus, it should be construed that “the necessary period of time has passed to look into the accident caused by the operation of the automobile subject to the claim and verify the damages” referred to in Article 16-9, paragraph (1) of the Act on Securing Compensation for Automobile Accidents means a reasonable period necessary for an insurance company to conduct an investigation required for looking into an accident subject to a claim of payment of the amount of damages made by a harmed person and verifying the amount of the damages. Moreover, it is appropriate to decide a length of the period, considering concrete circumstances of an individual case, including contents of documents which are related to the accident or the amount of the damages and obtained by the insurance company and a time when the documents are obtained, presence or absence of arguments on the amount of the damages and their contents, progress of negotiation between the harmed person and the insurance company. This shall apply even in a case in which a harmed person exercises a direct claim in a lawsuit.
Therefore, in the current case in which the plaintiff at first instance exercised a direct claim in a lawsuit, it should not be immediately determined that the defendant at first instance is not liable for delay in performing liability to pay the amount of the damages until the judgment in prior instance becomes final and binding, even if there is no special circumstance, such as the defendant at first instance making the lawsuit retarded.
3. The determination of the court of prior instance that is inconsistent with the above opinion is illegal in that its illegality obviously affects the judgment. The appellant’s argument is well-grounded in that it is consistent with the above opinion.
IV. Conclusion
Based on the grounds as described above, the Court dismisses the final appeal made by the defendant at first instance. Of the judgment in prior instance, the part dismissing a claim for payment of delay damages for 3,440,000 Japanese yen which cover a period from February 20, 2015, which is the day following the complaint service date, to a day before a day when this judgment becomes final and binding should be inevitably quashed. The Court remands this part to the Tokyo High Court in order to have it further and fully hear the case as to when the defendant at first instance becomes liable for delay in performing liability to pay the amount of the damages. In addition, as to the part of the final appeal pertaining to all other claims made by the plaintiff at first instance, the Court dismisses the part since the corresponding reasons for the petition for acceptance of final appeal were excluded in the order to accept the final appeal.
Accordingly, the Court unanimously decides as set forth in the main text.

Justice KOIKE Hiroshi
Justice IKEGAMI Masayuki
Justice KIZAWA Katsuyuki
Justice YAMAGUCHI Atsushi
Justice MIYAMA Takuya