2006.03.28

2005 (Ju) 1751

Minshu Vol. 60, No. 3

Judgment concerning whether or not, where a traffic accident occurred involving an unborn child of the named insured person under a special automobile insurance policy, giving rise to injuries to the child after birth that directly resulted in a disability in the child, insurance money may be claimed under the clause of the insurance policy on injury by an uninsured car

Case to seek damages

Judgment of the Third Petty Bench, dismissed

Nagoya High Court, Kanazawa Branch, Judgment of May 30, 2005

Where a traffic accident occurred involving an unborn child of the named insured person under a special automobile insurance policy, giving rise to injuries to the child after birth that directly resulted in a disability in the child, the child or his/her parents may claim insurance money, under the clause of the insurance policy on injury by an uninsured car, to compensate for the loss incurred by them due to both the injuries and disability, in the same manner as claiming insurance money to compensate for an injury and disability suffered by a "relative of the insured person who lives with the named insured person" who is in the category of the insured person under the said clause.

Articles 91 and 721 of the Civil Code

Article 91 of the Civil Code
(Manifestation of Intention Inconsistent with Default Rules)
If any party to a juristic act manifests any intention which is inconsistent with a provision in any laws and regulations not related to public policy, such intention shall prevail.

Article 721 of the Civil Code
(Legal capacity of an unborn child to hold the right to claim damages)
An unborn child shall, in respect of the right to claim damages, be deemed to have already been born.

The appeal to the court of the last resort shall be dismissed.
The appellant at the court of the last resort shall bear the costs of the appeal.

Concerning the reasons for the petition for acceptance of appeal to the court of the last resort argued by the appeal counsels KODAMA Yasuo and MATSUMURA Taro
1. The outline of the facts legally determined by the court of the second instance is as follows:
(1) Appellee X1 at the court of the last resort is the father of Appellee X2 at the court of the last resort, and Appellee X3 at the court of the last resort is the mother of Appellee X2.
(2) On January 5, 1999, around 10:00 a.m., at an intersection where traffic control was not in operation, a car crash occurred between the car driven by Appellee X3 (hereinafter referred to as the "victim's car") and the car driven by A (hereinafter referred to as the "perpetrator's car") (this car crash shall hereinafter be referred to as the "Accident").
The Accident arose from negligence on the part of A while driving the perpetrator's car.
(3) At the time of the Accident, Appellee X3 was 34 weeks pregnant. After the Accident, she was brought to a hospital and went through an emergency cesarean section operation, and on 12:58 p.m. of that day, she delivered Appellee X2.
Appellee X2 was born in a state of serious asphyxia, suffering hypoxic encephalopathy and epilepsy, and therefore stayed at the hospital and received medical treatment. On December 5, 2000, Appellee X2's symptoms became fixed, and severe psychomotor retardation (spastic quadriplegia) remained. The disability in Appellee X2 corresponds to Class 1, No. 3 in the appended table of the Order for Enforcement of the Automobile Liability Security Act (prior to the revision by Cabinet Order No. 419 of 2001).
The injuries and disability suffered by Appellee X2 (hereinafter referred to as the "Injuries and Disability") were caused by the Accident.
(4) Appellee X1 had acquired a special automobile insurance policy from the appellant at the court of the last resort, designating the victim's car as the insured car and Appellee X1 as the named insured person (this insurance policy shall hereinafter be referred to as the "Insurance Policy").
The terms of the Insurance Policy (hereinafter refereed to as the "Insurance Terms") contain a clause on injury by an uninsured car, stating as follows:
(a) The appellant shall pay insurance money to compensate for any loss incurred by the insured person or his/her parents, spouse or child due to the insured person's suffering of death or injury directly resulting in disability, which arose from the possession, use or management of an uninsured car, if there is any person who is liable to compensate for such loss.
(b) The insured person shall mean any of the following:
(A) The named insured person
(B) The spouse of the named insured person
(C) A relative of the named insured person, or his/her spouse, who lives with them
(D) An unmarried child of the named insured person, or his/her spouse, who lives separately from them
(E) Any other person who was seated on a standard riding device of the insured car or in its compartment where such devices are installed
(c) Where the other party's car (a car other than the insured car, which has caused death or injury to the insured person) is not covered by any liability insurance for personal injury (an insurance contract or mutual aid contract whereby insurance money or mutual aid money shall be paid to compensate for any loss incurred by a person who is legally liable for another person's suffering of death or injury that arose from the possession, use or management of a car; excluding liability insurance or liability mutual aid under the Automobile Liability Security Act), the other party's car shall be deemed to be an uninsured car.
(d) The amount of loss for which the appellant shall pay insurance money shall be determined based on the amount of damages legally payable by the liable person to compensate for the loss incurred by the insured person or his/her parents, spouse or child.
(5) The perpetrator's car falls under the category of "uninsured car" mentioned in (4)(c) above.

2. In this case, the appellees, under the clause on injury by an uninsured car, request that the appellant pay insurance money to compensate for the loss incurred by the appellees due to the Injuries and Disability suffered by Appellee X2, and delay damages thereon.

3. Under Article 721 of the Civil Code, an unborn child shall, in respect of the right to claim damages, be deemed to have already been born. According to this provision, it is construed that where a tort occurred involving an unborn child, giving rise to an injury in the child after birth and left a disability in the child, damages may be claimed from the perpetrator for the loss due to such injury and disability. According to the facts mentioned above, the Accident occurred involving Appellee X2 as an unborn child, and it gave rise to the Injuries and Disability in Appellee X2 after birth. Consequently, it is construed that the appellees may claim damages from the perpetrator for the loss due to the Injuries and Disability.
Under the Insurance Terms mentioned above, insurance money payable under the clause on injury by an uninsured car shall be paid to a person who has the legal right to claim damages, where the person is unlikely to be sufficiently compensated for loss on the grounds that the other party's car is not insured. Accordingly, it can be regarded that the payment of insurance money under this clause has the nature of compensation for loss on behalf of the liable person. Therefore, it is appropriate to construe that any loss for which the liable person is liable to pay damages (unless there is any reason for immunity) may be subject to the insurance payment under the Insurance Policy.
Since Appellee X2 is a child of the named insured person under the Insurance Policy, and as mentioned above, the appellees may claim damages from the perpetrator for the loss due to the Injuries and Disability, it is appropriate to construe that the appellees may claim insurance money to compensate for the loss due to the Injuries and Disability under the clause in the Insurance Terms on injury by an uninsured car, in the same manner as claiming insurance money to compensate for loss due to an injury and impairment suffered by a relative of the insured person who lives with him/her (1(4)(b)(C) above).
Consequently, the determination of the court of the second instance, which construed that the appellees may claim insurance money to compensate for the loss due to the Injuries and Disability under the clause in the Insurance Terms on injury by an uninsured car, can be affirmed as justifiable. The appellant's argument cannot be accepted.

Therefore, the judgment was rendered in the form of the main text by the unanimous consent of the Justices.

Justice FUJITA Tokiyasu
Justice HAMADA Kunio
Justice UEDA Toyozo
Justice HORIGOME Yukio