[introduction of the lawyer in this case] Geng LuHong, senior partner of Liaoning Tongfang law firm, head of criminal business department, legal adviser of Liaoning provincial government, and director of criminal Professional Committee of Liaoning Provincial Lawyers Association. The main business areas are criminal defense, major and complex civil and commercial dispute resolution, administrative litigation and other legal work. He has rich case handling experience and was awarded the excellent lawyer of Liaoning Province in 2012-2013.
[key points of judgment] the insurance company does not have the legal right of subrogation for the goods involved. When exercising the right of subrogation against the logistics company, the insurance company shall bear the burden of proof for the breach of contract by the logistics company in the performance of the transportation contract and the loss caused by the breach of contract according to the principle of "who claims and who provides evidence". If the insurance company is unable to prove that the logistics company has breached the contract, it shall bear the legal risk that the proof cannot be provided.
[basic case] on March 26, 2013, Guangzhou gongsuda Logistics Co., Ltd. entrusted Wanzai Yide Logistics Co., Ltd. to transport a total of 315 boxes of electronic products from Guangzhou to Shenyang. The next day, Wanzai Yide Logistics Co., Ltd. entrusted the goods to Shenyang Changheng Transportation Co., Ltd. for actual transportation. Wu Bin was the owner of the transportation vehicle and Li Chunpeng was the driver of the transportation vehicle. On March 30, 2013, Li Chunpeng's truck scraped with other vehicles in Cangzhou City, Hebei Province, causing damage to the goods in the vehicle container. Afterwards, Shenzhen gongsuda Logistics Co., Ltd. (the shareholder of Guangzhou gongsuda Logistics Co., Ltd.) reported insurance to Pacific Insurance Company as the applicant, but the insurance company did not conduct on-site survey according to law.
On April 5, 2013, entrusted by the Pacific Insurance Company, Guangzhou gauging bank insurance adjustment Co., Ltd. inspected the damaged goods at the factory of the owner of the goods and issued an adjustment report, which determined that the property loss in the accident was 185113.08 yuan. After that, the insurance company paid 185113.08 yuan to Shenzhen gongsuda company.
In August 2013, the insurance company sued Wanzai Yide Logistics Co., Ltd. to the people's Court of Wanzai County, Jiangxi Province on the basis of the dispute over the insurer's right of subrogation. Wanzai Yide Logistics Co., Ltd. did not appear in court to answer the lawsuit. In September 2013, Wanzai County People's Court issued (2013) Wanmin erchu Zi No. 76 civil judgment, which determined that Wanzai Yide Logistics Co., Ltd. paid 185113.08 yuan to the insurance company. After the judgment took effect, Wanzai County Court frozen the bank deposit of 191929.08 yuan of Wanzai Yide Logistics Co., Ltd.
On April 27, 2014, lawyer Geng LuHong accepted the entrustment of Wanzai Yide Logistics Co., Ltd. to sue Wu Bin, the owner of the actual carrier of the goods, and Shenyang Changheng Transportation Co., Ltd., the affiliated unit of the transport vehicle, to the people's Court of Xinmin City on the ground of the dispute over the freight agency contract. The court is requested to order the second defendant to pay the total economic loss of 205629.08 yuan to Wanzai Yide Logistics Co., Ltd. In the lawsuit, the other party raised an objection to the authenticity of one of the evidences issued by us, namely, the confirmation of traffic accident liability. Subsequently, the judge went to Wuqiao brigade of Cangzhou detachment of Hebei Provincial Highway Traffic Police Corps to investigate and verify the evidence and found that the evidence was forged.
On October 24, 2014, Wanzai Yide Logistics Co., Ltd. filed a retrial application with the people's Court of Wanzai County, Jiangxi Province, requesting the people's Court of Wanzai county to revoke the civil judgment (2013) wmerchu Zi No. 76 made by the court. On February 6, 2015, Wanzai county court made (2015) wmjz No. 1 civil ruling and tried the case again.
The people's Court of Wanzai county held in the retrial that: Guangzhou gongsuda insured the goods it carried with the Shenzhen Branch of Pacific Insurance, and both parties recognized the insurance contract. The insurance contract relationship between Guangzhou gongsuda and the Shenzhen Branch of Pacific Insurance was established. Although Pacific Insurance settled the insurance claim for the damage of the goods to Guangzhou gongsuda, However, the evidence provided by him is not sufficient to prove that Yide Logistics Co., Ltd. caused damage to the goods involved, nor is it sufficient to prove that the damaged goods surveyed by Guangdong measurement bank insurance assessment Co., Ltd. are the goods consigned by Yide Logistics Co., Ltd; At the same time, the evidence provided by the plaintiff Pacific Insurance in the original trial is not enough to prove that the owner Wu Bin actually transported the goods involved and caused damage to the goods; Shenzhen gongsuda, as one of the shareholders of Guangzhou gongsuda, the plaintiff Pacific Insurance Company in the original trial also failed to provide sufficient evidence to prove its participation in the transportation of goods involved in the case. To sum up, the judgment revokes (2013) Wanmin erchu Zi No. 76 civil judgment and rejects the claim of Shenzhen branch of China Taiping Ocean Property Insurance Co., Ltd., the plaintiff in the original trial. Subsequently, the Shenzhen Branch of China Pacific Property Insurance Co., Ltd. filed an appeal. The Yichun intermediate people's Court issued (2015) yzmzsz No. 10 civil judgment on November 6, 2015, which rejected the appeal and upheld the original judgment.
Now the people's Court of Wanzai county has returned the execution amount of 189149 yuan deducted to Wanzai Yide Logistics Co., Ltd.
[judgment result] in the first instance, Wanzai Yide Logistics Co., Ltd. paid 185113.08 yuan to the insurance company.
Retrial of the first instance: the company did not support the right of insurance subrogation of PICC Shenzhen Branch, and the judgment rejected its claim.
Second instance of retrial: the appeal was rejected and the civil judgment of Wanzai County People's Court (2015) Wanmin zaizi No. 1 was upheld.
[reason for judgment] the retrial court of second instance, the intermediate people's Court of Yichun City, Jiangxi Province, held that the second paragraph of Article 5 of the provisions of the Supreme People's Court on evidence in civil proceedings stipulates that if there is a dispute over the performance of the contract, the party with the obligation to perform shall bear the burden of proof. However, the dispute in this case is not whether the respondent Yide logistics has performed the transportation contract signed with Guangzhou gongsuda, It is whether the appellee Yide logistics has breached the contract by causing damage to the goods it carries. The appellant Pacific Property Insurance Shenzhen Branch has chosen the respondent Yide logistics to claim the insurer's right of subrogation against the appellant Yide logistics according to the insurance contract after settling the claim with Guangzhou gongsuda. According to the principle of "who claims, who provides evidence", the appellant shall bear the burden of proof for the respondent's breach of contract and the loss caused by the breach of contract. According to the evidence submitted by the appellant Pacific Financial Insurance Shenzhen Branch to the court, there is no detailed delivery list of Guangzhou gongsuda and the appellee Yide logistics, nor the delivery list entrusted by the appellee Yide logistics to Wu Bin for transportation, nor the rejection certificate of the goods by the consignee Anchuan Electric Co., Ltd., nor the relevant evidence of the appellant going to the collision site of the traffic accident to verify the damage of the goods, As a result, judging from the existing evidence submitted by it, it is difficult to confirm that the electronic base plate that sanhesheng Electronics Co., Ltd. airlifted back to Dongguan from Shenyang to accept the loss assessment by the insurance assessment company of Guangdong measurement bank is the electronic product that Guangzhou gongsuda received from sanhesheng electronics and then entrusted to Yide logistics for transportation. That is, whether the goods loss assessed in the assessment report was caused by the appellee Yide logistics in the performance of the transportation contract cannot be confirmed according to the existing evidence. To sum up, the appellant Pacific Financial Insurance Shenzhen Branch is unable to prove that the respondent Yide logistics has breached the contract, so it should bear the legal risk that it is unable to provide evidence. The law applied by Wanzai county court in the retrial of the first instance is not improper and should be maintained.
[relevant laws] Article 60 of the insurance law: if an insured accident is caused by the damage of a third party to the subject matter of the insurance, the insurer shall, from the date of making compensation to the insured, subrogate the insured to claim compensation from the third party within the compensation amount. If, after the occurrence of the insured event mentioned in the preceding paragraph, the insured has obtained damages from a third party, the insurer may deduct the amount of compensation obtained by the insured from the third party when making compensation. The exercise by the insurer of the right of subrogation to claim compensation in accordance with the provisions of the first paragraph of this article shall not affect the right of the insured to claim compensation from a third party for the part that has not been compensated.
Paragraph 2 of Article 5 of the provisions of the Supreme People's Court on evidence in civil proceedings: if there is a dispute over the performance of the contract, the party responsible for the performance of the contract shall bear the burden of proof. Item 1, paragraph 1, Article 170 of the Civil Procedure Law: (1) if the facts of the original judgment or written order are clear and the application of the law is correct, the appeal shall be rejected by way of judgment or written order, and the original judgment or written order shall be upheld;
[lawyer's opinion] i. whether the insurance company has the right of insurance subrogation against the goods involved:
Article 91 of the interpretation of the new civil procedure law stipulates that the parties claiming the existence of a legal relationship shall bear the burden of proof for the basic facts that generate the legal relationship.
Article 60 of the insurance law stipulates that if an insured accident is caused by the damage of a third party to the subject matter of the insurance, the insurer shall, from the date of making compensation to the insured, subrogate the right of the insured to claim compensation from the third party within the scope of compensation.
According to the above legal provisions, the insurance company shall bear the following burden of proof: there is an insurance contract relationship with Guangzhou gongsuda company and Guangzhou gongsuda company is the insured.
The open insurance policy for cargo transportation submitted by the insurance company in the court trial can prove that Shenzhen gongsuda company entered into an insurance contract with it. Although an additional list was submitted later, Guangzhou gongsuda company, as an independent enterprise legal person, did not affix its official seal on the list to confirm the establishment of an insurance contract relationship with the insurance company.
Article 11 of the insurance law stipulates that an insurance contract shall be concluded through consultation. Follow the principle of fairness to determine the rights and obligations of all parties. Unless insurance is required by laws and administrative regulations, insurance contracts shall be concluded voluntarily. This provision reflects the principle of insurance voluntariness, that is, the parties to the insurance legal relationship have the right to establish, change or terminate the insurance relationship according to their own wishes without interference from others. According to the provisions of this law, only the official seals of the insurance company and Shenzhen gongsuda company are stamped on the cargo transportation open insurance policy. Therefore, according to the principle of contract relativity, the insurance contract only binds the insurance company and the applicant Shenzhen gongsuda company. It cannot be proved that there is also an insurance contract relationship between the company and Guangzhou gongsuda. Therefore, the insurance company does not have the right of subrogation.
2、 Regarding whether Yide company is the qualified defendant of this case:
Article 60 of the insurance law stipulates that "if an insured accident is caused by the damage of a third party to the subject matter of the insurance, the insurer shall, within the scope of the compensation amount, exercise the right of the insured to claim compensation from the third party on behalf of the insured from the date of making compensation to the insured."
The second paragraph of Article 37 of the tort liability law stipulates that "if the act of a third party causes damage to others, the third party shall bear the tort liability."
According to the above-mentioned legal provisions, only the third party who has caused the actual loss of the goods shall be the one to be recovered. In this case, the loss caused by the goods was caused by the collision between the owner Wu Bin and other vehicles during the transportation, not during the transportation of Yide company. Therefore, Wanzai Yide company is not an infringing third party causing the goods damage. The insurance company's claim of subrogation against Wanzai Yide company according to article 60 of the insurance law has no factual and legal basis.
3、 Relevant doubts about whether the goods damage in this case really exists and the value of the goods damage:
1. The goods are packed in closed containers, and the vehicles carrying the containers are only scraped with other vehicles, not collided in the running. At that time, Wu Bin, the owner of the car, only asked the other driver for 3000 yuan of car damage. Obviously, the two cars were not scratched seriously.
2. If the two vehicles cause serious accidents, Wu Bin, as the owner of the vehicle, will certainly check whether the goods in the container are damaged, and will promptly inform the owner of the goods and Yide company; If the goods are seriously damaged, the insurance company will send people or entrust the insurance company in the place of the accident to the site to investigate and determine the damage. However, in fact, the insurance company not only did not send its own personnel or entrust the insurance company of the place where the accident occurred to the site for investigation, but also did not conduct any investigation and confirmation on whether the goods were damaged or damaged after the accident. After that, the insurance loss adjustment company was entrusted to conduct the so-called cargo loss adjustment based on the materials provided by the cargo owner, and then the claim was settled.
3. Under normal circumstances, if the goods are damaged in transit, the carrier shall also inform the consignee in time. After the arrival of the goods, the carrier and the consignee shall jointly inspect the goods and confirm the damage in writing. However, in this case, the receiving party did not provide any confirmation materials for the rejected goods or the loss of goods.
4. On the legality and authenticity of the loss amount of goods in the assessment report: the expenses for rescue and arrangement mentioned in the insurance claim settlement refer to additional expenses, not normal expenses. The loss amount in the assessment report is RMB 194855.88. Among them, the scrapped substrate is 137156.24 yuan, the manual sorting fee is 28717.06 yuan, and the equipment sorting fee is 8256 yuan. However, there is no other evidence to prove that the above labor and equipment selection fees are not expenses during normal working hours, so they should not be additional expenses and should not be within the scope of claim settlement.
5. The insurance company did not submit the relevant certificates for Guangzhou gongsuda company or Shenzhen gongsuda company to pay the insurance premium for the transportation of the goods involved. This case is concerned with the contractual relationship of cargo transportation insurance. Cargo transportation insurance refers to the insurance that the shipper of the goods pays the insurance premium to the insurer when delivering the goods to the carrier, and the insurer is responsible for compensating the loss of the goods in case of any loss agreed in the insurance contract. It is the insurance obligation of the applicant to pay the premium to the insurance company. It is beyond doubt that the insurance company cannot settle the claim when the applicant fails to pay the premium.
6. Determination of the insured value and insured amount of the goods involved. Article 7 of the cargo transportation open insurance policy submitted by the plaintiff stipulates that the transportation contract signed by the domestic transportation applicant shall be reported to the insurer for filing, and if approved by the insurer, it shall be determined according to the price in the reported contract. It can be seen that the insurance company shall have the contract of the insured (Shenzhen gongsuda company or Guangzhou gongsuda company) on the transportation of the goods involved, and the insurance value and insurance amount are determined according to the transportation contract reported. However, the insurance company did not submit the evidence to the court, so it can be concluded that the transportation contract involved in the case was not reported by the insurance company. It is obviously not in line with common sense for an insurance company to settle claims when the agreement on the insured value and the insured amount is unclear.
Article 90 of the interpretation of the new civil procedure law stipulates that the parties shall provide evidence to prove the facts on which their claims are based or the facts on which they refute the claims of the other party.
The evidence submitted by the insurance company in the court trial is insufficient to prove the following contents: there is an insurance contract relationship between the insurance company and Guangzhou gongsuda company; There is a principal-agent relationship between Guangzhou gongsuda company and Shenzhen gongsuda company. The insurance company's claim settlement to Shenzhen gongsuda company is equivalent to the claim settlement to Guangzhou gongsuda company; The actual damage of goods owned by sanhesheng company; The legitimacy of the value of loss settlement.
In conclusion, the insurance company has no legal right of subrogation against the goods involved; There is no factual and legal basis for the insurance company to exercise the right of subrogation against Wanzai Yide Logistics Co., Ltd. which did not cause actual damage to the goods; There are also many doubts about the legitimacy of insurance claims and their settlement value.
Finally, the two-level courts rejected the claim of the insurance company against Wanzai Yide Logistics Co., Ltd. through retrial.
When accepting the entrustment of the case, the party concerned, as the executee in the case of the dispute over the insurer's right of subrogation, had deducted 191929.08 yuan from the account by the people's Court of Wanzai county. With the evidence materials provided by the parties, we sued the owner of the vehicle transporting goods and the affiliated unit of the vehicle on the basis of the freight agency contract dispute. However, in the lawsuit, the Xinmin City Court verified that one of the evidences submitted by us, the road traffic accident liability determination statement, was forged
[key points of judgment] the insurance company does not have the legal right of subrogation for the goods involved. When exercising the right of subrogation against the logistics company, the insurance company shall bear the burden of proof for the breach of contract by the logistics company in the performance of the transportation contract and the loss caused by the breach of contract according to the principle of "who claims and who provides evidence". If the insurance company is unable to prove that the logistics company has breached the contract, it shall bear the legal risk that the proof cannot be provided.
[basic case] on March 26, 2013, Guangzhou gongsuda Logistics Co., Ltd. entrusted Wanzai Yide Logistics Co., Ltd. to transport a total of 315 boxes of electronic products from Guangzhou to Shenyang. The next day, Wanzai Yide Logistics Co., Ltd. entrusted the goods to Shenyang Changheng Transportation Co., Ltd. for actual transportation. Wu Bin was the owner of the transportation vehicle and Li Chunpeng was the driver of the transportation vehicle. On March 30, 2013, Li Chunpeng's truck scraped with other vehicles in Cangzhou City, Hebei Province, causing damage to the goods in the vehicle container. Afterwards, Shenzhen gongsuda Logistics Co., Ltd. (the shareholder of Guangzhou gongsuda Logistics Co., Ltd.) reported insurance to Pacific Insurance Company as the applicant, but the insurance company did not conduct on-site survey according to law.
On April 5, 2013, entrusted by the Pacific Insurance Company, Guangzhou gauging bank insurance adjustment Co., Ltd. inspected the damaged goods at the factory of the owner of the goods and issued an adjustment report, which determined that the property loss in the accident was 185113.08 yuan. After that, the insurance company paid 185113.08 yuan to Shenzhen gongsuda company.
In August 2013, the insurance company sued Wanzai Yide Logistics Co., Ltd. to the people's Court of Wanzai County, Jiangxi Province on the basis of the dispute over the insurer's right of subrogation. Wanzai Yide Logistics Co., Ltd. did not appear in court to answer the lawsuit. In September 2013, Wanzai County People's Court issued (2013) Wanmin erchu Zi No. 76 civil judgment, which determined that Wanzai Yide Logistics Co., Ltd. paid 185113.08 yuan to the insurance company. After the judgment took effect, Wanzai County Court frozen the bank deposit of 191929.08 yuan of Wanzai Yide Logistics Co., Ltd.
On April 27, 2014, lawyer Geng LuHong accepted the entrustment of Wanzai Yide Logistics Co., Ltd. to sue Wu Bin, the owner of the actual carrier of the goods, and Shenyang Changheng Transportation Co., Ltd., the affiliated unit of the transport vehicle, to the people's Court of Xinmin City on the ground of the dispute over the freight agency contract. The court is requested to order the second defendant to pay the total economic loss of 205629.08 yuan to Wanzai Yide Logistics Co., Ltd. In the lawsuit, the other party raised an objection to the authenticity of one of the evidences issued by us, namely, the confirmation of traffic accident liability. Subsequently, the judge went to Wuqiao brigade of Cangzhou detachment of Hebei Provincial Highway Traffic Police Corps to investigate and verify the evidence and found that the evidence was forged.
On October 24, 2014, Wanzai Yide Logistics Co., Ltd. filed a retrial application with the people's Court of Wanzai County, Jiangxi Province, requesting the people's Court of Wanzai county to revoke the civil judgment (2013) wmerchu Zi No. 76 made by the court. On February 6, 2015, Wanzai county court made (2015) wmjz No. 1 civil ruling and tried the case again.
The people's Court of Wanzai county held in the retrial that: Guangzhou gongsuda insured the goods it carried with the Shenzhen Branch of Pacific Insurance, and both parties recognized the insurance contract. The insurance contract relationship between Guangzhou gongsuda and the Shenzhen Branch of Pacific Insurance was established. Although Pacific Insurance settled the insurance claim for the damage of the goods to Guangzhou gongsuda, However, the evidence provided by him is not sufficient to prove that Yide Logistics Co., Ltd. caused damage to the goods involved, nor is it sufficient to prove that the damaged goods surveyed by Guangdong measurement bank insurance assessment Co., Ltd. are the goods consigned by Yide Logistics Co., Ltd; At the same time, the evidence provided by the plaintiff Pacific Insurance in the original trial is not enough to prove that the owner Wu Bin actually transported the goods involved and caused damage to the goods; Shenzhen gongsuda, as one of the shareholders of Guangzhou gongsuda, the plaintiff Pacific Insurance Company in the original trial also failed to provide sufficient evidence to prove its participation in the transportation of goods involved in the case. To sum up, the judgment revokes (2013) Wanmin erchu Zi No. 76 civil judgment and rejects the claim of Shenzhen branch of China Taiping Ocean Property Insurance Co., Ltd., the plaintiff in the original trial. Subsequently, the Shenzhen Branch of China Pacific Property Insurance Co., Ltd. filed an appeal. The Yichun intermediate people's Court issued (2015) yzmzsz No. 10 civil judgment on November 6, 2015, which rejected the appeal and upheld the original judgment.
Now the people's Court of Wanzai county has returned the execution amount of 189149 yuan deducted to Wanzai Yide Logistics Co., Ltd.
[judgment result] in the first instance, Wanzai Yide Logistics Co., Ltd. paid 185113.08 yuan to the insurance company.
Retrial of the first instance: the company did not support the right of insurance subrogation of PICC Shenzhen Branch, and the judgment rejected its claim.
Second instance of retrial: the appeal was rejected and the civil judgment of Wanzai County People's Court (2015) Wanmin zaizi No. 1 was upheld.
[reason for judgment] the retrial court of second instance, the intermediate people's Court of Yichun City, Jiangxi Province, held that the second paragraph of Article 5 of the provisions of the Supreme People's Court on evidence in civil proceedings stipulates that if there is a dispute over the performance of the contract, the party with the obligation to perform shall bear the burden of proof. However, the dispute in this case is not whether the respondent Yide logistics has performed the transportation contract signed with Guangzhou gongsuda, It is whether the appellee Yide logistics has breached the contract by causing damage to the goods it carries. The appellant Pacific Property Insurance Shenzhen Branch has chosen the respondent Yide logistics to claim the insurer's right of subrogation against the appellant Yide logistics according to the insurance contract after settling the claim with Guangzhou gongsuda. According to the principle of "who claims, who provides evidence", the appellant shall bear the burden of proof for the respondent's breach of contract and the loss caused by the breach of contract. According to the evidence submitted by the appellant Pacific Financial Insurance Shenzhen Branch to the court, there is no detailed delivery list of Guangzhou gongsuda and the appellee Yide logistics, nor the delivery list entrusted by the appellee Yide logistics to Wu Bin for transportation, nor the rejection certificate of the goods by the consignee Anchuan Electric Co., Ltd., nor the relevant evidence of the appellant going to the collision site of the traffic accident to verify the damage of the goods, As a result, judging from the existing evidence submitted by it, it is difficult to confirm that the electronic base plate that sanhesheng Electronics Co., Ltd. airlifted back to Dongguan from Shenyang to accept the loss assessment by the insurance assessment company of Guangdong measurement bank is the electronic product that Guangzhou gongsuda received from sanhesheng electronics and then entrusted to Yide logistics for transportation. That is, whether the goods loss assessed in the assessment report was caused by the appellee Yide logistics in the performance of the transportation contract cannot be confirmed according to the existing evidence. To sum up, the appellant Pacific Financial Insurance Shenzhen Branch is unable to prove that the respondent Yide logistics has breached the contract, so it should bear the legal risk that it is unable to provide evidence. The law applied by Wanzai county court in the retrial of the first instance is not improper and should be maintained.
[relevant laws] Article 60 of the insurance law: if an insured accident is caused by the damage of a third party to the subject matter of the insurance, the insurer shall, from the date of making compensation to the insured, subrogate the insured to claim compensation from the third party within the compensation amount. If, after the occurrence of the insured event mentioned in the preceding paragraph, the insured has obtained damages from a third party, the insurer may deduct the amount of compensation obtained by the insured from the third party when making compensation. The exercise by the insurer of the right of subrogation to claim compensation in accordance with the provisions of the first paragraph of this article shall not affect the right of the insured to claim compensation from a third party for the part that has not been compensated.
Paragraph 2 of Article 5 of the provisions of the Supreme People's Court on evidence in civil proceedings: if there is a dispute over the performance of the contract, the party responsible for the performance of the contract shall bear the burden of proof. Item 1, paragraph 1, Article 170 of the Civil Procedure Law: (1) if the facts of the original judgment or written order are clear and the application of the law is correct, the appeal shall be rejected by way of judgment or written order, and the original judgment or written order shall be upheld;
[lawyer's opinion] i. whether the insurance company has the right of insurance subrogation against the goods involved:
Article 91 of the interpretation of the new civil procedure law stipulates that the parties claiming the existence of a legal relationship shall bear the burden of proof for the basic facts that generate the legal relationship.
Article 60 of the insurance law stipulates that if an insured accident is caused by the damage of a third party to the subject matter of the insurance, the insurer shall, from the date of making compensation to the insured, subrogate the right of the insured to claim compensation from the third party within the scope of compensation.
According to the above legal provisions, the insurance company shall bear the following burden of proof: there is an insurance contract relationship with Guangzhou gongsuda company and Guangzhou gongsuda company is the insured.
The open insurance policy for cargo transportation submitted by the insurance company in the court trial can prove that Shenzhen gongsuda company entered into an insurance contract with it. Although an additional list was submitted later, Guangzhou gongsuda company, as an independent enterprise legal person, did not affix its official seal on the list to confirm the establishment of an insurance contract relationship with the insurance company.
Article 11 of the insurance law stipulates that an insurance contract shall be concluded through consultation. Follow the principle of fairness to determine the rights and obligations of all parties. Unless insurance is required by laws and administrative regulations, insurance contracts shall be concluded voluntarily. This provision reflects the principle of insurance voluntariness, that is, the parties to the insurance legal relationship have the right to establish, change or terminate the insurance relationship according to their own wishes without interference from others. According to the provisions of this law, only the official seals of the insurance company and Shenzhen gongsuda company are stamped on the cargo transportation open insurance policy. Therefore, according to the principle of contract relativity, the insurance contract only binds the insurance company and the applicant Shenzhen gongsuda company. It cannot be proved that there is also an insurance contract relationship between the company and Guangzhou gongsuda. Therefore, the insurance company does not have the right of subrogation.
2、 Regarding whether Yide company is the qualified defendant of this case:
Article 60 of the insurance law stipulates that "if an insured accident is caused by the damage of a third party to the subject matter of the insurance, the insurer shall, within the scope of the compensation amount, exercise the right of the insured to claim compensation from the third party on behalf of the insured from the date of making compensation to the insured."
The second paragraph of Article 37 of the tort liability law stipulates that "if the act of a third party causes damage to others, the third party shall bear the tort liability."
According to the above-mentioned legal provisions, only the third party who has caused the actual loss of the goods shall be the one to be recovered. In this case, the loss caused by the goods was caused by the collision between the owner Wu Bin and other vehicles during the transportation, not during the transportation of Yide company. Therefore, Wanzai Yide company is not an infringing third party causing the goods damage. The insurance company's claim of subrogation against Wanzai Yide company according to article 60 of the insurance law has no factual and legal basis.
3、 Relevant doubts about whether the goods damage in this case really exists and the value of the goods damage:
1. The goods are packed in closed containers, and the vehicles carrying the containers are only scraped with other vehicles, not collided in the running. At that time, Wu Bin, the owner of the car, only asked the other driver for 3000 yuan of car damage. Obviously, the two cars were not scratched seriously.
2. If the two vehicles cause serious accidents, Wu Bin, as the owner of the vehicle, will certainly check whether the goods in the container are damaged, and will promptly inform the owner of the goods and Yide company; If the goods are seriously damaged, the insurance company will send people or entrust the insurance company in the place of the accident to the site to investigate and determine the damage. However, in fact, the insurance company not only did not send its own personnel or entrust the insurance company of the place where the accident occurred to the site for investigation, but also did not conduct any investigation and confirmation on whether the goods were damaged or damaged after the accident. After that, the insurance loss adjustment company was entrusted to conduct the so-called cargo loss adjustment based on the materials provided by the cargo owner, and then the claim was settled.
3. Under normal circumstances, if the goods are damaged in transit, the carrier shall also inform the consignee in time. After the arrival of the goods, the carrier and the consignee shall jointly inspect the goods and confirm the damage in writing. However, in this case, the receiving party did not provide any confirmation materials for the rejected goods or the loss of goods.
4. On the legality and authenticity of the loss amount of goods in the assessment report: the expenses for rescue and arrangement mentioned in the insurance claim settlement refer to additional expenses, not normal expenses. The loss amount in the assessment report is RMB 194855.88. Among them, the scrapped substrate is 137156.24 yuan, the manual sorting fee is 28717.06 yuan, and the equipment sorting fee is 8256 yuan. However, there is no other evidence to prove that the above labor and equipment selection fees are not expenses during normal working hours, so they should not be additional expenses and should not be within the scope of claim settlement.
5. The insurance company did not submit the relevant certificates for Guangzhou gongsuda company or Shenzhen gongsuda company to pay the insurance premium for the transportation of the goods involved. This case is concerned with the contractual relationship of cargo transportation insurance. Cargo transportation insurance refers to the insurance that the shipper of the goods pays the insurance premium to the insurer when delivering the goods to the carrier, and the insurer is responsible for compensating the loss of the goods in case of any loss agreed in the insurance contract. It is the insurance obligation of the applicant to pay the premium to the insurance company. It is beyond doubt that the insurance company cannot settle the claim when the applicant fails to pay the premium.
6. Determination of the insured value and insured amount of the goods involved. Article 7 of the cargo transportation open insurance policy submitted by the plaintiff stipulates that the transportation contract signed by the domestic transportation applicant shall be reported to the insurer for filing, and if approved by the insurer, it shall be determined according to the price in the reported contract. It can be seen that the insurance company shall have the contract of the insured (Shenzhen gongsuda company or Guangzhou gongsuda company) on the transportation of the goods involved, and the insurance value and insurance amount are determined according to the transportation contract reported. However, the insurance company did not submit the evidence to the court, so it can be concluded that the transportation contract involved in the case was not reported by the insurance company. It is obviously not in line with common sense for an insurance company to settle claims when the agreement on the insured value and the insured amount is unclear.
Article 90 of the interpretation of the new civil procedure law stipulates that the parties shall provide evidence to prove the facts on which their claims are based or the facts on which they refute the claims of the other party.
The evidence submitted by the insurance company in the court trial is insufficient to prove the following contents: there is an insurance contract relationship between the insurance company and Guangzhou gongsuda company; There is a principal-agent relationship between Guangzhou gongsuda company and Shenzhen gongsuda company. The insurance company's claim settlement to Shenzhen gongsuda company is equivalent to the claim settlement to Guangzhou gongsuda company; The actual damage of goods owned by sanhesheng company; The legitimacy of the value of loss settlement.
In conclusion, the insurance company has no legal right of subrogation against the goods involved; There is no factual and legal basis for the insurance company to exercise the right of subrogation against Wanzai Yide Logistics Co., Ltd. which did not cause actual damage to the goods; There are also many doubts about the legitimacy of insurance claims and their settlement value.
Finally, the two-level courts rejected the claim of the insurance company against Wanzai Yide Logistics Co., Ltd. through retrial.
When accepting the entrustment of the case, the party concerned, as the executee in the case of the dispute over the insurer's right of subrogation, had deducted 191929.08 yuan from the account by the people's Court of Wanzai county. With the evidence materials provided by the parties, we sued the owner of the vehicle transporting goods and the affiliated unit of the vehicle on the basis of the freight agency contract dispute. However, in the lawsuit, the Xinmin City Court verified that one of the evidences submitted by us, the road traffic accident liability determination statement, was forged
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