Everyone knows that the third party insurance is to compensate the third party. Similarly, the driver belongs to the person in the car and needs to purchase the passenger insurance separately. The insurance company does not compensate for the loss insurance for the person in the car. So under what circumstances can the driver be converted into a third party? In other words, can third parties and passengers change roles? Today, a brief analysis was conducted based on the second-instance civil judgment of the property loss insurance contract dispute between China People's Property Insurance Co., Ltd. Mengyin Branch, China Dadi Property Insurance Co., Ltd. Wuwei Central Branch, and Zhang Mouxiang.
1. The basic process of the case and court judgment
First instance court found facts: On June 25, 2019, the plaintiff Zhang Mouxiang purchased a compulsory motor vehicle traffic accident liability insurance for his dump truck No. LuQ××××× registered under the name of Mengyin Antong Transportation Co., Ltd. at the defendant Bao Mengyin Company. The insurance period will be from 12:00 on July 1, 2019 to 12:00 on July 1, 2020. The vehicle is also insured with a commercial motor vehicle insurance in Dadi Wuwei Company, of which the insurance amount for third-party liability insurance is 1,000,000 yuan, and the insurance type is not deductible for special insurance, etc.; the insurance period is from 0:00 on June 30, 2019 to 24:00 on June 29, 2020.
On March 4, 2020, the Zhangnan Branch of the Public Security Bureau of Zibo City issued a police certificate, which said: At around 21:00 on February 4, 2020, our bureau received a report that in the 14-share mine in the non-aluminum workshop of Shandong Aluminum Company Aluminum Oxide Factory, a truck with license plate number Lu Q×××× overturned while unloading, causing the driver to be injured. Later, it died after failed rescue at the Zibo Hospital of Peking University Medical. After investigation, the driver was Li Hao (resident ID code: 3703061978×××××××××).
On February 5, 2020, the plaintiff (Party B) signed a death compensation agreement with Li Yubin (Father of Li Hao), Li Yixuan and Li Jinyu's legal agent Xuan Yiran (Party A), and negotiated that Party B would compensate Party A for one-time compensation for death compensation, funeral expenses, living expenses of the dependents, transportation expenses, loss of work, mental damage compensation and all other expenses totaling one hundred and one hundred thousand yuan on February 5, 2020, and to the bank account designated by Party A. On the same day, B paid 1100,000 yuan to Party A's designated bank account.
also found that the Hejia Village Villagers Committee of Xidong Street, Zouping County, where Li Hao is located issued a certificate, recording: It is proved that Li Hao (ID card number: 3703061978×××××××), a villager in my village, died of a traffic accident on February 4, 2020. His kinship is: father: Li Yubin, ID card number: 3723301950×××××××××××; mother: Xia Cuixiang, ID card number: 3723301954××××××××××; eldest son: Li Jinyu (not listed on the household); eldest daughter: Li Yixuan, ID card number: 4109272008××××××××××; he had divorced Xuan Yiran at the time of the accident.
Plaintiff Zhang Mouxiang is the actual owner of the insured vehicle, and the insured vehicle has a qualified driving license. Li Hao is a driver he hired and was cremated on February 6, 2020; he holds a Type B driver's license and has the qualification to practice road transportation.
The first instance court held that the "third party" in motor vehicle third-party liability insurance refers to people other than the insured person and the person in the car who suffered personal injury or property losses due to an accident in an insured vehicle. The "car personnel" in the car personnel liability insurance refers to the person who is in the body of the insured vehicle or on the body of the vehicle at the moment of an accident. To determine whether the victim Li Hao is a person in the car or a third party, the specific time when the victim was injured and the mutual physical location of the insured vehicle should be used as the basis. The victim Li Hao was driving the insured vehicle to carry stone into the mine to unload the vehicle. The tractor injured Li Hao who was located under the vehicle, and then died after failed rescue. Therefore, the first instance court found that when Li Hao was injured, he had transformed from the "car person (driver)" in the insurance contract into a "third party".
Article 21 of the "Regulations on Compulsory Insurance for Motor Vehicle Traffic Accidents" stipulates that if a road traffic accident occurs in an insured motor vehicle, causing personal casualties and property losses to the personnel of the vehicle and victims other than the insured person, the insurance company shall compensate within the limit of the compulsory insurance liability for motor vehicle traffic accidents in accordance with the law. In view of the fact that the victim Li Hao was a third party in the accident and died due to the accident, the plaintiff’s lawsuit claim that the defendant Bao Mengyin Company’s insurance payment of insurance benefits within the limit of compulsory traffic insurance will be supported in accordance with the provisions and the compulsory insurance liability agreement for motor vehicle traffic accident liability.
The first instance court supports Li Hao’s death compensation of 790,980 yuan. Li Hao's son Li Jinyu (Birth Medical Certification Records: Mother Xuan Yiran, Father Li Hao, 13:12 on November 14, 2019), the accident occurred, and the 2 people were raising people; Li Hao's daughter Li Yixuan was born on November 6, 2008, and the 2 people were raising people; Li Hao's father Li Yubin (born November 10, 1950) and his mother Xia Cuixiang (born December 8, 1954), all have raising people. Article 28 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases" "If there are several dependents, the total annual compensation shall not exceed the per capita consumption expenditure of urban residents or the per capita annual living expenses of rural residents in the previous year." Therefore, the first instance court supported the four-person maintenance fee totaling 409,167 yuan. The above losses are included in the death compensation, so the first instance court supports the plaintiff's death compensation of 1200,147 yuan. The first instance court supported the plaintiff's funeral expenses of 37,562.50 yuan. The plaintiff's claim that the transportation and loss of work of the person handling the accident claimed by the plaintiff were 5,000 yuan each, which was too high, and the first instance court supported 2,000 yuan respectively. The mental damage compensation claimed by the plaintiff complies with the relevant provisions of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Determination of Liability for Mind Damage Compensation for Civil Torts", but the amount is too high, and the first instance court supports 10,000 yuan.
In summary, Li Hao's losses are: death compensation of 1200,147 yuan, funeral expenses of 37,562.50 yuan, loss of work for the accident personnel, transportation expenses of 2,000 yuan, and mental damage compensation of 10,000 yuan, totaling 1251,709.50 yuan. For the above losses, the plaintiff first reached a compensation agreement with Li Hao's relatives and actually paid 1100,000 yuan. Therefore, the defendant Bao Mengyin Company, who underwritten compulsory traffic insurance, will first compensate within the sub-item limit for the plaintiff, and the defendant Dadi Wuwei Company, who underwritten commercial third-party liability insurance, will first compensate within the insurance limit for the part exceeding the compulsory traffic insurance. The first instance court ruled: 1. The defendant Mengyin Branch of China People's Property Insurance Co., Ltd. paid the plaintiff Zhang Mouxiang 110,000 yuan in insurance after the judgment took effect. 2. After the judgment takes effect, the defendant, Wuwei Central Branch of China Dadi Property Insurance Co., Ltd., paid the plaintiff Zhang Mouxiang 990,000 yuan in insurance. If the obligation to pay money is not fulfilled within the period specified in the judgment, the debt interest for the delayed performance shall be paid doubled in accordance with Article 253 of the Civil Procedure Law of the People's Republic of China. The case acceptance fee is 14,700 yuan, and 7,350 yuan is charged at half-cut, with the plaintiff Zhang Mouxiang bearing 735 yuan, and the defendant Wuwei Central Branch of China Land Property Insurance Co., Ltd. bears 6,615 yuan.
In the second instance, the parties did not submit new evidence. The facts found in the second instance are consistent with the facts found in the original instance and are confirmed.
This court believes that there is a legal and valid insurance contract relationship between the appellant and the respondent, and both parties should perform it in accordance with the contract agreement. According to Article 168 of the Civil Procedure Law of the People's Republic of China on "the second instance people's court shall review the relevant facts and applicable laws of appeal requests", this court will only review the scope of appeal requests for PICC Mengyin Company and Dadi Wuwei Company during the second instance litigation process, and no disputes will not be reviewed. Li Hao was driving the insured vehicle to carry stone into the mine to unload the vehicle. The tractor injured Li Hao who was located under the vehicle, and then died after failed rescue. The Zhangnan Branch of Zibo Municipal Public Security Bureau issued a police proof to confirm it. Li Hao had already got off the car before the accident, and later he was injured and killed by the insured vehicle. He should be considered a third party.The appeal request from Mengyin Branch of People's Property Insurance Co., Ltd. and Wuwei Central Branch of China Dadi Property Insurance Co., Ltd. cannot be established and should be rejected; the first-instance judgment determines the facts clearly and the application of the law is correct, and should be upheld. In accordance with the provisions of Article 170, paragraph 1, item (1) of the Civil Procedure Law of the People's Republic of China, the judgment is as follows:
rejects the appeal and upholds the original judgment.
The second instance case acceptance fee is 14,700 yuan, the Mengyin Branch of the appellant People's Property Insurance Co., Ltd. shall bear 2,500 yuan, and the Wuwei Central Branch of China Dadi Property Insurance Co., Ltd. shall bear 12,200 yuan.
2. Analysis of the main legal basis and practical judgment
1. Motor vehicle third-party liability insurance is referred to as third-party liability insurance. It refers to the economic liability that the insured or his allowed driver has an accident during the use of the insured vehicle, causing the third party to suffer personal injury or direct damage to property. According to law, the insured shall bear the economic liability, and the insurance company shall be responsible for compensation. At the same time, if the insured incurs arbitration or litigation costs due to the written consent of the insurance company, the insurance company shall compensate outside the liability limit, but the maximum shall not exceed 30% of the liability limit. Most local governments list third-party liability insurance as a compulsory insurance type. If you don’t buy this insurance, you will not be able to get a license plate or have annual inspections.
2. Qualified driver allowed by the insured: There are two meanings here. One is the driver allowed by the insured, which refers to the insured person holding a driver's license, his spouse, their immediate relatives or employees of the insured, or the driver who uses the insured vehicle to have a commercial rental relationship with the driver who uses the insured vehicle during the period of performing the work assigned by the insured, or the insured has a commercial rental relationship with the driver who uses the insured vehicle. The second is qualification, which means that the above-mentioned driver must hold a valid driving license and that the vehicle being driven is consistent with the driving permit specified in the driving license. Only drivers who meet the two conditions "allowed" and "qualified" conditions will compensate the insurer if they suffer losses caused by an insurance accident when using the insured vehicle. If an insured vehicle is driven away by someone privately, or if the driver makes a private promise without the consent of the owner or the person in charge of the unit to which the insurance vehicle belongs, the person driving cannot be regarded as a "driver allowed by the insured". If such an accident occurs, the insurer will not compensate.
3. Process of using insurance vehicles: The entire process of using insurance vehicles as a tool, including driving and parking. For example, a safe crane fixes the wheels and performs a lifting and unloading operation, which can be called the "process of using the safe vehicle".
4. Third party: In the insurance contract, the insurer is the first party, also called the first party; the insured or the victim is the second party, also called the second party; except for the insured and the insured, the victim who suffers personal injury or property damage due to an accident in the insured vehicle is a third party, also called the third party.
4. Personal casualties: a person's body is injured or a person's life ends.
5. Direct damage: An accident occurred in an insurance vehicle, which directly caused actual damage to the existing property of others at the accident site.
6. The amount of compensation that should be paid by the insured according to law: the amount of compensation that should be paid for the accident liability borne by the insured or the qualified driver allowed by him in accordance with the provisions on road traffic accident handling and relevant laws and regulations.
In my country, traffic accidents are generally handled by the public security traffic management department. However, the public security traffic management department generally does not accept vehicle accidents that occur at off-highway locations. At this time, relevant departments of the local government in danger can be asked to study and handle the relevant departments of the local government in danger according to the regulations on handling road traffic accidents. Cases that have serious differences in handling opinions of the public security traffic management department or the relevant departments of the local government in danger can be submitted to the court for resolution.
7. The insurer shall provide compensation in accordance with the provisions of the insurance contract:
1. The provisions of the insurance contract: refers to the relevant provisions contained in the basic insurance terms, additional insurance terms, special agreements, and insurance approval forms.
2. The insurer does not unconditionally bear the "amount of compensation that the insured should pay in accordance with the law", and the non-compensation part stipulated in the insurance contract should also be excluded when making claims.
Compensation Handling Edit
3. Aftermath work: refers to matters that properly handle the accident other than civil compensation liability. For example: specific matters such as rescue, medical care, mediation, litigation, etc. involved in the insured vehicle causing harm to others.
4. When the insured claims, he shall provide the insurer with: (1) insurance policy; (2) valid identity certificate of the insured and the third party, insurance vehicle driving license, driver's license; (3) traffic accident liability certification issued by the traffic management department of the public security organ or relevant legal documents and other certificates issued by the court and other institutions; (4) third party property loss certificate or personal disability certificate, as well as related loss list and expense documents; (5) Insured person chooses to handle a traffic accident by self-negotiation method according to relevant laws and regulations, he shall provide an agreement to record the traffic accident situation in accordance with the "Traffic Accident Handling Procedures"; (6) Other proofs and materials that can confirm the nature, cause, degree of loss of the insurance accident, etc.
5. If the insured person does not have an insurance interest in the insured vehicle when an insurance accident occurs, he shall not request compensation from the insurer.
6. The insurer may directly compensate the third party for the damage caused to the insured to the third party in accordance with the provisions of the law or the agreement of the contract. If the insured causes damage to the third party and the insured shall determine the compensation liability of the insured to the third party, the insured shall directly compensate the insurance money to the third party according to the insured's request. If the insured fails to make a request, the third party has the right to directly request compensation from the insurer for the part of the compensation he should receive.
If the insured causes damage to a third party and the insured fails to compensate the third party, the insured shall not compensate the insured for the insurance money.
7. If an insured vehicle occurs in a road traffic accident, the insurer shall bear the corresponding compensation liability based on the proportion of the accident liability borne by the driver in the traffic accident. If the insured or the driver of the insured vehicle chooses to negotiate on its own basis or the traffic management department of the public security organ has not determined the proportion of the accident liability according to the following provisions: If the insured vehicle party bears all the accident liability, the proportion of the accident liability shall not exceed 100%; if the insured vehicle party bears the main accident liability, the proportion of the accident liability shall not exceed 70%; if the insured vehicle party bears the same accident liability, the proportion of the accident liability shall not exceed 50%; if the insured vehicle party bears the secondary accident liability, the proportion of the accident liability shall not exceed 30%; if the insured vehicle party has no accident liability, the insurer shall not bear the compensation liability.
8. According to the proportion of accident liability liability borne by the driver in the accident, this insurance implements the corresponding accident liability deductible:
In a traffic accident, if the driver of the insurance vehicle is fully responsible, the accident liability deductible rate is 20%; if the main responsibility is the accident liability deductible rate is 15%; if the same responsibility is the accident liability deductible rate is 10%; if the secondary responsibility is the accident liability deductible rate is 5%.
9. In the event of an insurance accident, if the relevant motor vehicle loading regulations in laws and regulations are violated, an absolute deductible of 10%.
10. If the actual driving area of the insured vehicle exceeds the scope of the insurance policy, an absolute deductible rate of 10% will be increased.
11. When taking out insurance, the insured can designate the driver or not, and execute the corresponding rate.
If a driver is designated, the insured shall truthfully inform the driver of the relevant information, including the driver's name, gender, age, vehicle model, the first time to obtain a driver's license, ID card or other valid ID number, etc.
If an insurance vehicle of a designated driver is not a designated driver, an insurance accident occurs when a vehicle is driven by an insurance vehicle, or the information of the designated driver provided by the policyholder is untrue, an absolute deductible rate of 10% will be increased when compensation is compensated.
12. After an insurance accident occurs, the insurer shall determine the compensation amount for personal casualties within the compensation limit stated in the insurance policy in accordance with the scope of compensation, items and standards stipulated by relevant national laws and regulations, as well as the provisions of this insurance contract, and in accordance with the clinical diagnosis and treatment guidelines for trauma of traffic accident personnel organized and formulated by the health authorities of the State Council and the national basic medical insurance standards.
13. If a third party’s property loss is caused by an insurance accident, it should be repaired as much as possible.Before repair, the insured must conduct inspections with the insurer and negotiate to determine the repair or replacement items, methods and costs. Otherwise, the insurer has the right to re-verify that the insurer shall not bear the liability for compensation for the part that cannot be determined due to the insured's reasons.
14. The insurer has the right to re-verify the amount of compensation that the insured promises or pays without the written consent of the insured. If the insurer does not fall within the scope of compensation or exceeds the amount of compensation to be compensated by the insurer, the insurer shall not bear the liability for compensation.
15. This insurance calculates the compensation amount according to the following methods: (1) When the insured should bear the compensation amount is higher than the compensation limit: compensation = compensation limit × (1-accident liability deductible) × (1-absolute deductible) (2) When the insured should bear the compensation amount is equal to or lower than the compensation limit: compensation = compensation amount × (1-accident liability deductible) × (1-absolute deductible) × (1-absolute deductible) The insured should bear the part of the part that the personal injury or property loss of a third party should be borne by the insured in accordance with the law, which exceeds the limit of each sub-item of compulsory motor vehicle insurance, multiplied by the accident liability ratio.
16. If a road traffic accident occurs in an insured motor vehicle, causing personal injury or property losses to the personnel of the vehicle and victims other than the insured person, the insurance company shall compensate within the limit of the compulsory insurance liability for motor vehicle traffic accident liability in accordance with the law. In view of the fact that the victim Li Hao was a third party in the accident and died due to the accident, the plaintiff’s lawsuit claim that the defendant Bao Mengyin Company’s insurance payment of insurance benefits within the limit of compulsory traffic insurance will be supported in accordance with the provisions and the compulsory insurance liability agreement for motor vehicle traffic accident liability.
17. The "third party" in motor vehicle third-party liability insurance refers to people other than the insured person and the person in the car who suffers personal injury or property losses due to an accident in an insured vehicle. The "car personnel" in the car personnel liability insurance refers to the person who is in the body of the insured vehicle or on the body of the vehicle at the moment of an accident. To determine whether the victim Li Hao is a person in the car or a third party, the specific time when the victim was injured and the mutual physical location of the insured vehicle should be used as the basis. The victim Li Hao was driving the insured vehicle to carry stone into the mine to unload the vehicle. The tractor injured Li Hao who was located under the vehicle, and then died after failed rescue. Therefore, the first instance court found that when Li Hao was injured, he had transformed from the "car person (driver)" in the insurance contract into a "third party".
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