[Key words] right to life, defendant, additional defendant, contract, lease, employment
[introduction to the lawyer of this case] Liu Kai, a practicing lawyer of Liaoning Tongfang law firm, is mainly engaged in civil and commercial litigation.
[key points of judgment] 1. The defendant's construction company hired the defendant Wang to engage in hoisting construction. 2. Due to the improper operation of the driver employed by the defendant Wang Mou Da, i.e. the defendant Jia Mou Dong, the steel pipe hoisted fell off and injured Liu Mou Yin (the deceased) who was working at the construction site involved in the case, resulting in his death due to his excessive injury.
[basic case] at about 15:40 on September 4, 2017, the defendant Jia Yidong, employed by the defendant Wang Yida, operated the Liao aexxxx crane actually owned by the defendant Wang Yida at the construction site of "XX pumping station" in Shashan street, Heping District, Shenyang City to lift the rack pipe. During the operation, the crane overturned, causing the lifted rack pipe to fall off and hurt Liu Yiyin, who was under construction, and causing head and neck injuries. On June 27, 2018, during the trial of this case, Liu died due to his severe injury.
[judgment result] i. the defendant Shenyang Branch of PICC Property Insurance Co., Ltd. shall compensate the plaintiff Liu Jie, Liu He, Gao E, Liu Jian and Li Jun for 291267.19 yuan of insurance compensation within 10 days from the date of this judgment;
2、 The defendant Shenyang Branch of PICC Property Insurance Co., Ltd. shall compensate the defendant Shenyang Construction Engineering Co., Ltd. for the insurance compensation of 903732.81 yuan within 10 days from the date of this judgment;
3、 The defendant Shenyang Construction Engineering Co., Ltd. shall, within ten days from the effective date of this judgment, compensate the plaintiff Liu Jie, Liu He, Gao E, Liu Jian and Li Jun for the delay in work, nursing expenses, transportation expenses, death compensation, appraisal fees and accommodation expenses, totaling 65605.31 yuan;
4、 The defendant Wang Mou DA and the defendant Shenyang XX cargo transportation Co., Ltd. shall be jointly and severally liable for the compensation in the third paragraph above;
5、 Other claims of the plaintiffs Liu Jie, Liu He, Gao E, Liu Jian and Li Jun were rejected.
The case acceptance fee was 19014 yuan, which was borne by the defendant Shenyang certain Construction Engineering Co., Ltd. (paid in full), Wang Yida and Shenyang certain goods transportation Co., Ltd.
[reason for judgment] in this case, the defendant Wang Mou Da was employed by a construction company to engage in hoisting construction. The driver employed by Wang Mou Da, namely the defendant Jia Mou Dong, fell off the hoisting steel pipe due to improper operation, and injured Liu Mou Yin who was working on the construction site involved in the case, resulting in his death. The crane is a special operation vehicle. The operation state is normal and the driving state is abnormal.
[relevant laws] Article 6, paragraph 1 of the tort liability law of the people's Republic of China, where the actor infringes upon the civil rights and interests of others due to his fault, he shall bear the tort liability.
Article 65 of the insurance law of the people's Republic of China, the insurer may directly compensate the third party for the damage caused by the insured of liability insurance in accordance with the provisions of the law or the contract. If the insured of liability insurance causes damage to the third party, and the liability of the insured to the third party is determined, the insurer shall, at the request of the insured, directly compensate the third party for the insurance money. If the insured is negligent in claiming, the third party has the right to directly claim the insurance money from the insurer for the part of compensation that should be paid. If the insured of liability insurance causes damage to a third party and the insured fails to compensate the third party, the insurer shall not compensate the insured for the insurance money. Liability insurance refers to the insurance whose subject matter is the liability of the insured to the third party according to law. Article 21 in the event of a traffic accident of an insured motor vehicle, which causes personal injury or death or property loss to the injured person other than the insured and the insured, the insurance company shall make compensation within the scope of the liability limit of the compulsory insurance for motor vehicle traffic accident liability according to law. The insurance company shall not compensate for the loss caused by the road traffic accident intentionally caused by the victim. Paragraph 1 of Article 9 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, where an employee causes damage in his employment activities, the employer shall be liable for compensation; If an employee causes damage to others due to intentional or gross negligence, he shall bear joint and several liability with the employer. If the employer bears joint and several liability for compensation, he may claim compensation from the employee. Article 17 Where the victim suffers personal injury, the compensation obligor shall make compensation for the expenses incurred due to medical treatment and the income reduced due to missing work, including medical expenses, missing work expenses, nursing expenses, transportation expenses, accommodation expenses, hospitalization food subsidies and necessary nutrition expenses.
If the victim is disabled due to injury, the necessary expenses incurred due to the increase of living needs and the loss of income due to the loss of working ability, including disability compensation, disability assistive equipment fees, living expenses of the dependants, and the necessary rehabilitation fees, nursing fees and follow-up treatment fees actually incurred due to rehabilitation care and continuous treatment, and compensation
The obligor shall also compensate. Article 19 the medical expenses shall be determined according to the medical expenses, hospitalization expenses and other collection vouchers issued by the medical institutions, in combination with medical records, diagnosis certificates and other relevant evidences. If the compensation obligor disagrees with the necessity and rationality of treatment, it shall bear the corresponding burden of proof. The amount of compensation for medical expenses shall be determined according to the amount actually incurred before the end of the debate in the court of first instance. For the necessary rehabilitation fees, appropriate cosmetic surgery fees and other follow-up treatment fees for organ function recovery training, the compensation right holder may file a separate lawsuit after the actual occurrence. However, the necessary expenses are determined according to the medical certificate or the appraisal conclusion,
It can be compensated together with the medical expenses incurred. Article 20 the delay fee shall be determined according to the time and income of the victim. The time of missing work shall be determined according to the certificate issued by the medical institution where the victim receives treatment. If the victim continues to miss work due to injury and disability, the time of missing work can be counted to the day before the disability determination date. If the victim has a fixed income, the delay fee shall be calculated according to the actual reduced income. If the victim has no fixed income, it shall be calculated according to the average income of the victim in the last three years; If the victim is unable to provide evidence to prove the average income of the victim in the last three years, it may be calculated by reference to the average wages of employees in the same or similar industries in the place where the court is located in the previous year. Article 21 the nursing fee shall be determined according to the income status of nursing personnel, the number of nursing personnel and the duration of nursing. If the nursing staff has income, it shall be calculated with reference to the provisions of work delay fee; If the nursing personnel have no income or employ nursing workers, it shall be calculated according to the labor remuneration standard of local nursing workers engaged in the same level of nursing. In principle, the number of nursing personnel is one, but if the medical institution or appraisal institution has clear opinions, the number of nursing personnel can be determined by reference.
The nursing period shall be calculated until the victim recovers his ability to take care of himself. If the victim is unable to recover his / her ability to take care of himself / herself due to his / her disability, a reasonable nursing period may be determined according to his / her age, health status and other factors, but the maximum period shall not exceed 20 years. The level of nursing for the disabled shall be determined according to the degree of nursing dependence and the preparation of disability AIDS. Article 22 the transportation expenses shall be calculated according to the actual expenses incurred by the victims and their necessary accompanying personnel due to medical treatment or hospital transfer. Transportation fees shall be based on official bills; The relevant credentials shall be consistent with the place, time, number and frequency of medical treatment. Article 23 the first paragraph of the hospitalization food subsidy may be determined by reference to the travel food subsidy standard of the general staff of the local state organs. Article 24 the nutrition fee shall be determined according to the disability of the victim and the opinions of the medical institution. Article 29 the death compensation shall be calculated for 20 years according to the per capita disposable income of urban residents or the per capita net income of rural residents in the previous year in the place where the court is located. However, for those over 60 years of age, the age shall be reduced by one year for each year of increase; Those over the age of 75 shall be counted as five years.
Article 3 of the interpretation of the Supreme People's Court on Several Issues concerning the application of laws in the trial of cases of road traffic accident damage compensation Article 3 the damage caused by a traffic accident of a motor vehicle engaged in road transport business activities in the form of affiliation belongs to the responsibility of the motor vehicle party. If the parties request that the affiliator and the affiliated person bear joint and several liability, the people's court shall support it.
Paragraph 1 of Article 64 of the Civil Procedure Law of the people's Republic of China, the parties shall have the responsibility to provide evidence for their own claims.
Article 65 paragraph 1 the parties shall provide evidence in time for their claims.
The Supreme People's Court on the application of the Civil Procedure Law of the people's Republic of China
Article 90 a party shall provide evidence to prove the facts on which his claim is based or the facts on which he refutes the other party's claim, unless otherwise provided by law.
Before the judgment is made, if the parties fail to provide evidence and the evidence is not enough to prove their factual claims, the party bearing the burden of proof shall bear the adverse consequences.
[lawyer's opinion] in this case, the plaintiff sued each defendant for tort liability and compensation, but did not sue a construction company that employed him. After accepting the entrustment of the defendant Wang Mou Da (the owner of the crane), the agent found that a construction company had paid the defendant Wang Mou Da several times for the rental of the crane according to the facts of the case and guiding the parties to collect evidence. After the vehicle accident, the legal representative of a construction company signed an agreement with the defendant Wang Mou DA in his personal name to repair the crane for the defendant Wang Mou da. Accordingly, the agent claims to add a construction company as the defendant of the case.
In this case, a construction company hired the defendant Wang to reach its contracted site "XX pump station" for hoisting construction. According to the business habits of the crane industry, this behavior should be crane leasing, but the two parties have not signed a lease contract. The agent studied the case and went to the crane industry to understand and analyze the situation, and collected relevant cases from various parties. Based on this, the agent excluded the contracting relationship between the Lin construction company and the defendant Wang Mou Da, and confirmed that a construction company and Wang Mou Da had an employment or lease relationship. And put forward the following agency opinions:
1、 The plaintiff claims that the division of responsibility for the accident is unclear, and the lessee or the employer of the crane shall bear the main responsibility for the accident. According to relevant laws, regulations and rules, the crane shall be operated by the crane crew with the ground commander. The cranes owned by Wang Mou DA were first commanded by unqualified ground Commanding Personnel arranged by a Construction Engineering Co., Ltd. in Shenyang. In the later period, a construction company did not provide ground Commanding Personnel for crane operation, and such actions were all improper operations. Therefore, as of the time of the infringement accident in this case, a construction company has the actual right of use, control and command of the accident crane, and has major negligence in the accident, and it shall bear the main responsibility for the accident.
2、 The injured person and his / her subordinate units shall bear certain responsibilities. Although Liu Yiyin (the deceased) is the infringed, he is also responsible for the accident. Liu, as a worker working on the construction site, should receive safety education before entering the construction site. As a common sense, "no person is allowed to stand under the jib of the crane during operation". In the event of an accident, the respondent still works under the jib of the crane under the condition that the crane owned by the respondent has a clear warning sign "no person is allowed to stand under the jib". Liu Yiyin (the deceased) and his subordinate units have unshirkable responsibility for the accident.
3、 The cause of death of Liu Yiyin (the deceased) is unknown, and it cannot be proved that there is a direct causal relationship with the accident. In this case, Liu Yin filed a lawsuit to the people's Court of Heping District of Shenyang on November 29, 2017, and submitted an application for disability identification and nursing dependency level identification to the court on March 16, 2018. The application stated that at that time, "the injury was stable, the treatment was ended, and there was no need for follow-up treatment". It can be seen that although he was disabled at that time, his condition was stable and there was no life-threatening. According to Liu's death certificate and relevant evidence, he died at home on June 27, 2018 with an unknown cause.
In this case, as the agent of the defendant Wang, he comprehensively analyzed the case, understood the trading habits in the industry, and provided satisfactory legal services for the parties. After the trial of the second instance, the judgment result of the first instance was still maintained, which was praised by the parties.
[introduction to the lawyer of this case] Liu Kai, a practicing lawyer of Liaoning Tongfang law firm, is mainly engaged in civil and commercial litigation.
[key points of judgment] 1. The defendant's construction company hired the defendant Wang to engage in hoisting construction. 2. Due to the improper operation of the driver employed by the defendant Wang Mou Da, i.e. the defendant Jia Mou Dong, the steel pipe hoisted fell off and injured Liu Mou Yin (the deceased) who was working at the construction site involved in the case, resulting in his death due to his excessive injury.
[basic case] at about 15:40 on September 4, 2017, the defendant Jia Yidong, employed by the defendant Wang Yida, operated the Liao aexxxx crane actually owned by the defendant Wang Yida at the construction site of "XX pumping station" in Shashan street, Heping District, Shenyang City to lift the rack pipe. During the operation, the crane overturned, causing the lifted rack pipe to fall off and hurt Liu Yiyin, who was under construction, and causing head and neck injuries. On June 27, 2018, during the trial of this case, Liu died due to his severe injury.
[judgment result] i. the defendant Shenyang Branch of PICC Property Insurance Co., Ltd. shall compensate the plaintiff Liu Jie, Liu He, Gao E, Liu Jian and Li Jun for 291267.19 yuan of insurance compensation within 10 days from the date of this judgment;
2、 The defendant Shenyang Branch of PICC Property Insurance Co., Ltd. shall compensate the defendant Shenyang Construction Engineering Co., Ltd. for the insurance compensation of 903732.81 yuan within 10 days from the date of this judgment;
3、 The defendant Shenyang Construction Engineering Co., Ltd. shall, within ten days from the effective date of this judgment, compensate the plaintiff Liu Jie, Liu He, Gao E, Liu Jian and Li Jun for the delay in work, nursing expenses, transportation expenses, death compensation, appraisal fees and accommodation expenses, totaling 65605.31 yuan;
4、 The defendant Wang Mou DA and the defendant Shenyang XX cargo transportation Co., Ltd. shall be jointly and severally liable for the compensation in the third paragraph above;
5、 Other claims of the plaintiffs Liu Jie, Liu He, Gao E, Liu Jian and Li Jun were rejected.
The case acceptance fee was 19014 yuan, which was borne by the defendant Shenyang certain Construction Engineering Co., Ltd. (paid in full), Wang Yida and Shenyang certain goods transportation Co., Ltd.
[reason for judgment] in this case, the defendant Wang Mou Da was employed by a construction company to engage in hoisting construction. The driver employed by Wang Mou Da, namely the defendant Jia Mou Dong, fell off the hoisting steel pipe due to improper operation, and injured Liu Mou Yin who was working on the construction site involved in the case, resulting in his death. The crane is a special operation vehicle. The operation state is normal and the driving state is abnormal.
[relevant laws] Article 6, paragraph 1 of the tort liability law of the people's Republic of China, where the actor infringes upon the civil rights and interests of others due to his fault, he shall bear the tort liability.
Article 65 of the insurance law of the people's Republic of China, the insurer may directly compensate the third party for the damage caused by the insured of liability insurance in accordance with the provisions of the law or the contract. If the insured of liability insurance causes damage to the third party, and the liability of the insured to the third party is determined, the insurer shall, at the request of the insured, directly compensate the third party for the insurance money. If the insured is negligent in claiming, the third party has the right to directly claim the insurance money from the insurer for the part of compensation that should be paid. If the insured of liability insurance causes damage to a third party and the insured fails to compensate the third party, the insurer shall not compensate the insured for the insurance money. Liability insurance refers to the insurance whose subject matter is the liability of the insured to the third party according to law. Article 21 in the event of a traffic accident of an insured motor vehicle, which causes personal injury or death or property loss to the injured person other than the insured and the insured, the insurance company shall make compensation within the scope of the liability limit of the compulsory insurance for motor vehicle traffic accident liability according to law. The insurance company shall not compensate for the loss caused by the road traffic accident intentionally caused by the victim. Paragraph 1 of Article 9 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, where an employee causes damage in his employment activities, the employer shall be liable for compensation; If an employee causes damage to others due to intentional or gross negligence, he shall bear joint and several liability with the employer. If the employer bears joint and several liability for compensation, he may claim compensation from the employee. Article 17 Where the victim suffers personal injury, the compensation obligor shall make compensation for the expenses incurred due to medical treatment and the income reduced due to missing work, including medical expenses, missing work expenses, nursing expenses, transportation expenses, accommodation expenses, hospitalization food subsidies and necessary nutrition expenses.
If the victim is disabled due to injury, the necessary expenses incurred due to the increase of living needs and the loss of income due to the loss of working ability, including disability compensation, disability assistive equipment fees, living expenses of the dependants, and the necessary rehabilitation fees, nursing fees and follow-up treatment fees actually incurred due to rehabilitation care and continuous treatment, and compensation
The obligor shall also compensate. Article 19 the medical expenses shall be determined according to the medical expenses, hospitalization expenses and other collection vouchers issued by the medical institutions, in combination with medical records, diagnosis certificates and other relevant evidences. If the compensation obligor disagrees with the necessity and rationality of treatment, it shall bear the corresponding burden of proof. The amount of compensation for medical expenses shall be determined according to the amount actually incurred before the end of the debate in the court of first instance. For the necessary rehabilitation fees, appropriate cosmetic surgery fees and other follow-up treatment fees for organ function recovery training, the compensation right holder may file a separate lawsuit after the actual occurrence. However, the necessary expenses are determined according to the medical certificate or the appraisal conclusion,
It can be compensated together with the medical expenses incurred. Article 20 the delay fee shall be determined according to the time and income of the victim. The time of missing work shall be determined according to the certificate issued by the medical institution where the victim receives treatment. If the victim continues to miss work due to injury and disability, the time of missing work can be counted to the day before the disability determination date. If the victim has a fixed income, the delay fee shall be calculated according to the actual reduced income. If the victim has no fixed income, it shall be calculated according to the average income of the victim in the last three years; If the victim is unable to provide evidence to prove the average income of the victim in the last three years, it may be calculated by reference to the average wages of employees in the same or similar industries in the place where the court is located in the previous year. Article 21 the nursing fee shall be determined according to the income status of nursing personnel, the number of nursing personnel and the duration of nursing. If the nursing staff has income, it shall be calculated with reference to the provisions of work delay fee; If the nursing personnel have no income or employ nursing workers, it shall be calculated according to the labor remuneration standard of local nursing workers engaged in the same level of nursing. In principle, the number of nursing personnel is one, but if the medical institution or appraisal institution has clear opinions, the number of nursing personnel can be determined by reference.
The nursing period shall be calculated until the victim recovers his ability to take care of himself. If the victim is unable to recover his / her ability to take care of himself / herself due to his / her disability, a reasonable nursing period may be determined according to his / her age, health status and other factors, but the maximum period shall not exceed 20 years. The level of nursing for the disabled shall be determined according to the degree of nursing dependence and the preparation of disability AIDS. Article 22 the transportation expenses shall be calculated according to the actual expenses incurred by the victims and their necessary accompanying personnel due to medical treatment or hospital transfer. Transportation fees shall be based on official bills; The relevant credentials shall be consistent with the place, time, number and frequency of medical treatment. Article 23 the first paragraph of the hospitalization food subsidy may be determined by reference to the travel food subsidy standard of the general staff of the local state organs. Article 24 the nutrition fee shall be determined according to the disability of the victim and the opinions of the medical institution. Article 29 the death compensation shall be calculated for 20 years according to the per capita disposable income of urban residents or the per capita net income of rural residents in the previous year in the place where the court is located. However, for those over 60 years of age, the age shall be reduced by one year for each year of increase; Those over the age of 75 shall be counted as five years.
Article 3 of the interpretation of the Supreme People's Court on Several Issues concerning the application of laws in the trial of cases of road traffic accident damage compensation Article 3 the damage caused by a traffic accident of a motor vehicle engaged in road transport business activities in the form of affiliation belongs to the responsibility of the motor vehicle party. If the parties request that the affiliator and the affiliated person bear joint and several liability, the people's court shall support it.
Paragraph 1 of Article 64 of the Civil Procedure Law of the people's Republic of China, the parties shall have the responsibility to provide evidence for their own claims.
Article 65 paragraph 1 the parties shall provide evidence in time for their claims.
The Supreme People's Court on the application of the Civil Procedure Law of the people's Republic of China
Article 90 a party shall provide evidence to prove the facts on which his claim is based or the facts on which he refutes the other party's claim, unless otherwise provided by law.
Before the judgment is made, if the parties fail to provide evidence and the evidence is not enough to prove their factual claims, the party bearing the burden of proof shall bear the adverse consequences.
[lawyer's opinion] in this case, the plaintiff sued each defendant for tort liability and compensation, but did not sue a construction company that employed him. After accepting the entrustment of the defendant Wang Mou Da (the owner of the crane), the agent found that a construction company had paid the defendant Wang Mou Da several times for the rental of the crane according to the facts of the case and guiding the parties to collect evidence. After the vehicle accident, the legal representative of a construction company signed an agreement with the defendant Wang Mou DA in his personal name to repair the crane for the defendant Wang Mou da. Accordingly, the agent claims to add a construction company as the defendant of the case.
In this case, a construction company hired the defendant Wang to reach its contracted site "XX pump station" for hoisting construction. According to the business habits of the crane industry, this behavior should be crane leasing, but the two parties have not signed a lease contract. The agent studied the case and went to the crane industry to understand and analyze the situation, and collected relevant cases from various parties. Based on this, the agent excluded the contracting relationship between the Lin construction company and the defendant Wang Mou Da, and confirmed that a construction company and Wang Mou Da had an employment or lease relationship. And put forward the following agency opinions:
1、 The plaintiff claims that the division of responsibility for the accident is unclear, and the lessee or the employer of the crane shall bear the main responsibility for the accident. According to relevant laws, regulations and rules, the crane shall be operated by the crane crew with the ground commander. The cranes owned by Wang Mou DA were first commanded by unqualified ground Commanding Personnel arranged by a Construction Engineering Co., Ltd. in Shenyang. In the later period, a construction company did not provide ground Commanding Personnel for crane operation, and such actions were all improper operations. Therefore, as of the time of the infringement accident in this case, a construction company has the actual right of use, control and command of the accident crane, and has major negligence in the accident, and it shall bear the main responsibility for the accident.
2、 The injured person and his / her subordinate units shall bear certain responsibilities. Although Liu Yiyin (the deceased) is the infringed, he is also responsible for the accident. Liu, as a worker working on the construction site, should receive safety education before entering the construction site. As a common sense, "no person is allowed to stand under the jib of the crane during operation". In the event of an accident, the respondent still works under the jib of the crane under the condition that the crane owned by the respondent has a clear warning sign "no person is allowed to stand under the jib". Liu Yiyin (the deceased) and his subordinate units have unshirkable responsibility for the accident.
3、 The cause of death of Liu Yiyin (the deceased) is unknown, and it cannot be proved that there is a direct causal relationship with the accident. In this case, Liu Yin filed a lawsuit to the people's Court of Heping District of Shenyang on November 29, 2017, and submitted an application for disability identification and nursing dependency level identification to the court on March 16, 2018. The application stated that at that time, "the injury was stable, the treatment was ended, and there was no need for follow-up treatment". It can be seen that although he was disabled at that time, his condition was stable and there was no life-threatening. According to Liu's death certificate and relevant evidence, he died at home on June 27, 2018 with an unknown cause.
In this case, as the agent of the defendant Wang, he comprehensively analyzed the case, understood the trading habits in the industry, and provided satisfactory legal services for the parties. After the trial of the second instance, the judgment result of the first instance was still maintained, which was praised by the parties.
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