2019.09.06

2018 (Ju) 1730

Minshu Vol. 73, No. 4

Judgment concerning the day on which delay damages started to accrue with regard to an obligation corresponding to the claim for compensation for loss or damage in tort that an association of medical care services for older senior citizens, which paid medical care benefits for older senior citizens under the Act on Assurance of Medical Care for Elderly People, has acquired by subrogation by reason of the payment of the medical care benefits for older senior citizens

Case seeking compensation for loss or damage

Judgment of the Second Petty Bench, partially quashed and remanded, partially dismissed

Sendai High Court, Judgment of August 3, 2018

If an association of medical care services for older senior citizens has paid medical care benefits for older senior citizens under the Act on Assurance of Medical Care for Elderly People, and the cause of payment of the benefits has arisen from a tort by a third party, the association is entitled to demand the third party to pay delay damages accrued from the day following the day on which the medical care benefits for older senior citizens were paid, with regard to the third party's obligation corresponding to the claim for compensation for loss or damage in tort that the association has acquired by subrogation by reason of the payment of the medical care benefits for older senior citizens.

Article 58 of the Act on Assurance of Medical Care for Elderly People, Articles 412 and 709 of the Civil Code

Act on Assurance of Medical Care for Elderly People
(Claim for Compensation for Loss or Damage)
Article 58 (1) If the cause of payment of benefits has arisen from an act of a third party, and an association of medical care services for older senior citizens has paid medical care benefits for older senior citizens (including payment of any amount of difference under the provisions of paragraph (2) of the preceding Article; the same applies hereinafter), the association acquires a claim for compensation for loss or damage held by the insured against the third party, up to the amount of the medical care benefits for older senior citizens thus paid (if the medical care benefits for older senior citizens are benefits for medical treatment, the amount calculated by deducting the amount equivalent to the co-payment to be borne by the insured in relation to the benefits for medical treatment from the amount of expenses required for the benefits for medical treatment; the same applies in paragraph (1) of the following Article).
(2) In the case referred to in the preceding paragraph, if a person entitled to receive medical care benefits for older senior citizens receives compensation for loss or damage from the third party due to the same cause, the association of medical care services for older senior citizens is released from the liability to pay medical care benefits for older senior citizens, up to the amount of the compensation thus received.
(3) An association of medical care services for older senior citizens may entrust the affairs concerning collection or receipt of damages based on the claim it has acquired pursuant to the provisions of paragraph (1), to a federation of national health insurance associations which is specified by Order of the Ministry of Health, Labour and Welfare.

Civil Code
(Time for Performance and Delay in Performance)
Article 412 (1) If any specified due date is assigned to the performance of an obligation, the obligor shall be responsible for the delay on and after the time of the arrival of such time limit.
(2) If any unspecified due date is assigned to the performance of a claim, the obligor shall be responsible for the delay on and after the time when he/she becomes aware of the arrival of such time limit.
(3) If no time limit is assigned to the performance of an obligation, the obligor shall be responsible for the delay on and after the time he/she receives the request for performance.

(Damages in Torts)
Article 709 A person who has intentionally or negligently infringed any right of others, or legally protected interest of others, shall be liable to compensate any damages resulting in consequence.

1. Of the judgment in prior instance, the part that dismissed the claim for payment of delay damages accrued on 2,877,298 yen for the period from August 25, 2010, to January 26, 2018, is quashed, and this case is remanded to the Sendai High Court with respect to the aforementioned part.
2. The remaining part of the final appeal filed by the appellant of final appeal is dismissed.
3. The costs of the final appeal concerning the preceding paragraph shall be borne by the appellant.

Concerning Reason I for a petition for acceptance of final appeal stated by the counsel for final appeal, ONODERA Masataka

1. In this case, the appellant, which is an association of medical care services for older senior citizens that paid benefits under the Act on Assurance of Medical Care for Elderly People (hereinafter referred to as the "Act"; such benefits are hereinafter referred to as "medical care benefits for older senior citizens") to a victim of a traffic accident, alleges that it has acquired by subrogation the claim held by the victim against the appellee, who caused that accident, to seek compensation for loss or damage in tort, and based on this allegation, the appellant demands the appellee to pay damages and delay damages accrued thereon for the period from the day of the accident until the completion of payment.

2. The outline of facts determined by the court of prior instance is as follows.

(1) On August 25, 2010, while walking across an intersection, B was hit by a standard passenger car driven by the appellee and was injured (hereinafter this accident is referred to as the "Accident").

In this Accident, B was at fault at 5% and the appellee was at fault at 95%.

(2) B received medical care benefits for older senior citizens regarding the abovementioned injury (hereinafter referred to as the "Medical Care Benefits"), the total amount of which was 3,028,735 yen.

(3) The appellant filed this action to seek payment of 3,452,757 yen as damages, as calculated by combining the total amount of the Medical Care Benefits minus the rate of B's fault of 5% (2,877,298 yen; a fraction of less than 1 yen dropped), and the amount equivalent to the legal fees (575,459 yen), with delay damages accrued on that amount of damages for the period from the day of the Accident (August 25, 2010) until the completion of payment.

3. Based on the facts mentioned above, the court of prior instance upheld the principal claim of this action to the extent to seek payment of the total amount of 3,177,298 yen, as calculated by combining 2,877,298 yen mentioned in 2(3) above and 300,000 yen as the amount equivalent to the legal fees. Furthermore, by determining that delay damages on that total amount of damages started to accrue on January 27, 2018, the day following the day of the service of the complaint, concerning which the appellant apparently demanded the appellee to pay the abovementioned damages, the court of prior instance upheld the incidental claim to the extent to seek payment of delay damages accrued for the period from that day until the completion of payment.

4. However, the abovementioned determination of the court of prior instance concerning the day on which delay damages started to accrue cannot be upheld for the following reasons.

The obligor assuming an obligation to compensate for a loss or damage in tort becomes responsible for the delay upon the occurrence of the loss or damage, without the need for the obligee to make a demand for the performance of the obligation (see 1959 (O) No. 117, the judgment of the Third Petty Bench of the Supreme Court of September 4, 1962, Minshu Vol. 16, No. 9, at 1834). Pursuant to the provisions of Article 58 of the Act, if the cause of payment of medical care benefits for older senior citizens has arisen from an act of a third party, and an association of medical care services for older senior citizens has paid medical care benefits for older senior citizens, the association acquires by subrogation a claim for compensation for loss or damage held by the insured against the third party, up to the amount of the medical care benefits for older senior citizens thus paid, and whenever the association has paid medical care benefits for older senior citizens, that claim for compensation for loss or damage is to be automatically transferred to the association of medical care services for older senior citizens (see 1994 (O) No. 651, the judgment of the First Petty Bench of the Supreme Court of September 10, 1998, Saibanshu Minji No. 189, at 819). However, since medical care benefits for older senior citizens paid in such case are considered to have a function to compensate for the principal of the loss or damage suffered by the insured but not to compensate for delay damages accrued on that principal, it should be said that the association of medical care services for older senior citizens acquires by subrogation a claim held by the insured against the third party for payment of the principal of damages, up to the amount of the medical care benefits for older senior citizens thus paid, but does not acquire by subrogation a claim for payment of delay damages accrued on the principal of damages (see 2009 (Ju) No. 1461 and No. 1462, the judgment of the First Petty Bench of the Supreme Court of February 20, 2012, Minshu Vol. 66, No. 2, at 742).

Accordingly, it should be said that if an association of medical care services for older senior citizens has paid medical care benefits for older senior citizens, and the cause of payment of the benefits has arisen from a tort by a third party, the association is entitled to demand the third party to pay delay damages accrued from the day following the day on which the medical care benefits for older senior citizens were paid, with regard to the third party's obligation corresponding to the claim for compensation for loss or damage in tort that the association has acquired by subrogation by reason of the payment of the medical care benefits for older senior citizens.

When this determination is applied to this case, the appellant is entitled to demand the appellee to pay delay damages accrued from the day following the day on which the Medical Care Benefits were paid, with regard to the total amount of the Medical Care Benefits, 2,877,298 yen (calculated by making a 5-percent reduction as mentioned in 2(3) above).

The determination of the court of prior instance that is contrary to this contains illegality that obviously affects the judgment. The counsel's arguments are well-grounded to the extent that they point out as above.

On the other hand, in light of the explanation stated above, the part of the appellant's claim for compensation for loss or damage which pertains to the amount equivalent to the legal fees is inappropriate, and therefore, the determination of the court of prior instance can be upheld for its conclusion that dismissed the claim for payment of delay damages accrued on that amount for the period until January 26, 2018, and the part of the counsel's arguments concerning that claim cannot be accepted.

5. For the reasons described above, the part of the judgment in prior instance that dismissed the claim for payment of delay damages accrued on 2,877,298 yen for the period from August 25, 2010, to January 26, 2018, should inevitably be quashed, and the Court remands the case to the court of prior instance to have it further examined in relation to issues such as the day on which the Medical Care Benefits were paid, while dismissing the remaining part of the final appeal due to lack of grounds.

Accordingly, the Court unanimously decides as set forth in the main text of the judgment. There is an opinion by Justice KUSANO Koichi.

The opinion by Justice KUSANO Koichi is as follows.

I am in agreement with the majority opinion in that a judgment as indicated in the main text should be handed down, but I slightly differ from the majority opinion in terms of the reason for this conclusion. While the majority opinion concludes that the appellant is not entitled to demand the appellee to pay delay damages for the period until the day on which the appellant paid medical care benefits for older senior citizens because a claim for payment of such delay damages is not included in the scope of claims that may be acquired by subrogation pursuant to Article 58 of the Act, I consider that delay damages have never accrued during that period, and hence, there is no possibility for the appellant to acquire any such delay damages. I explain the reason for my view.

In general, a victim of a tort starts to suffer various kinds of damage that become actual immediately after the commission of the tort, and (according to what the majority opinion called a case law doctrine) delay damages regarding a claim for compensation for such suffering of damage also start to accrue immediately after the commission of the tort. Under such circumstances, there is a positive meaning in considering that the scope of claims that may be acquired by subrogation pursuant to Article 58 of the Act and other equivalent provisions under the insurance law system covers only the principal of damages, and the judicial precedent cited by the majority opinion, i.e., the judgment of the First Petty Bench of the Supreme Court of February 20, 2012, presented the legal doctrine applicable to such type of case.

However, the loss or damage compensated for by medical care benefits for older senior citizens disputed in this case is not a loss or damage in general that the victim suffered due to the Accident, but it is a loss or damage related to a monetary obligation that the victim assumed due to having received medical care services from a specific medical institution during a specific period. It should be understood that with regard to the latter type of loss or damage, delay damages would not accrue until the loss or damage becomes actual. In this case, medical care benefits for older senior citizens were paid whenever this type of loss or damage became actual, and hence, there was no possibility for any delay damages to accrue before the day of each such payment.

I do not deny that there is a view that even with regard to a loss or damage that becomes actual upon the performance of a monetary obligation, delay damages should start to accrue retrospectively as of the time of commission of a tort. In fact, there is a judgment stating that with regard to a claim for compensation for the legal fees that are reasonably related to a tort, delay damages should start to accrue retrospectively as of the time of commission of the tort (see 1980 (O) No. 1113, the judgment of the Third Petty Bench of the Supreme Court of September 6, 1983, Minshu Vol. 37, No. 7, at 901; it should be noted that this judgment addressed the legal fees payable on condition that a judgment in favor of the claimant becomes final and binding (such legal fees are generally referred to as a "reward" or "contingent fee")).

However, if this theory is applied to any monetary obligation that a victim assumes to a third party, it would conflict with the concept of the "time value of money," which is an important element of the behavioral principles of people in modern society, and would lead to the tendency that the amount of compensation required for a loss or damage related to a monetary obligation that arises after a considerable time has passed since the time of the commission of a tort would become too much larger than the amount of loss or damage actually incurred.

In that case, it is reasonable to consider that the legal doctrine presented by the abovementioned Supreme Court judgment in 1983 does not apply at least to this case, and accordingly, no delay damages have arisen for the period before the day on which the appellant paid medical care benefits for older senior citizens, and therefore, I consider that there was no possibility for the appellant to acquire any such delay damages.

Justice YAMAMOTO Tsuneyuki

Justice KANNO Hiroyuki

Justice MIURA Mamoru

Justice KUSANO Koichi