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No.2 of Model Cases Involving China (Shanghai) Pilot Free Trade Zone Tried by the People's Court of Pudong New Area, Shanghai Municipality: Sales Department of China Continent Insurance Co., Ltd. v. Chen and Shanghai Master An Auto Services Co., Ltd. (case about dispute over the insurer's exercise of subrogation)
上海市浦东新区人民法院涉自贸试验区典型案例之二:中国大地财产保险股份有限公司营业部与上海安师傅汽车驾驶服务有限公司、陈良元保险人代位求偿权纠纷案
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No.2 of Model Cases Involving China (Shanghai) Pilot Free Trade Zone Tried by the People's Court of Pudong New Area, Shanghai Municipality: Sales Department of China Continent Insurance Co., Ltd. v. Chen and Shanghai Master An Auto Services Co., Ltd. (case about dispute over the insurer's exercise of subrogation)
(case about dispute over the insurer's exercise of subrogation)
上海市浦东新区人民法院涉自贸试验区典型案例之二:中国大地财产保险股份有限公司营业部与上海安师傅汽车驾驶服务有限公司、陈良元保险人代位求偿权纠纷案
[Key Terms]
subrogation right ; paid designated driver ; legal status of the insured
[核心术语]
代位求偿权;有偿代驾人;被保险人的法律地位
[Disputed Issues]
The insurer is entitled to exercise the subrogation right in respect of the vehicle damage insurance against the paid designated driver.
[争议焦点]
保险人有权向有偿代驾人行使车辆损失保险的代位求偿权
[Case Summary]
If an insurance accident occurs due to a third party's damage to the insured subject matter, the insurer shall, from the date of compensating the insured insurance money, subrogate the insured to claim against the third party within the scope of compensation. As a legal driver permitted by the insured, the paid designated driver does not have the legal status of "the insured" and is not one of the objects from which the compensation cannot be claimed as prescribed by law. Therefore, the insurer shall be entitled to exercise the subrogation right in respect of the vehicle damage insurance against the paid designated driver.
[案例要旨]
因第三者对保险标的的损害而造成保险事故的,保险人自向被保险人赔偿保险金之日起,在赔偿金额范围内代位行使被保险人对第三者请求赔偿的权利。有偿代驾人作为被保险人允许的合法驾驶人,不具有“被保险人”的法律地位,且不属于法定不允许追偿的对象。因此,保险人有权向有偿代驾人行使车辆损失保险的代位求偿权。
No.2 of Model Cases Involving China (Shanghai) Pilot Free Trade Zone Tried by the People's Court of Pudong New Area, Shanghai Municipality: Sales Department of China Continent Insurance Co., Ltd. v. Chen and Shanghai Master An Auto Services Co., Ltd. (Case about dispute over the insurer's exercise of subrogation) 上海市浦东新区人民法院涉自贸试验区典型案例之二:中国大地财产保险股份有限公司营业部与上海安师傅汽车驾驶服务有限公司、陈良元保险人代位求偿权纠纷案
--The insurer has the right to exercise subrogation for vehicle loss insurance against the paid designated driver. --保险人有权向有偿代驾人行使车辆损失保险的代位求偿权
(1) Basic Facts 一、基本案情
Tao covered the family car loss insurance for the vehicle he owned at China Continent Insurance Co., Ltd. (hereinafter referred to as “CCIC”). According to the insurance contract, during the period of insurance, the insurer should be responsible for compensating losses to the insured vehicle caused by the insured or the legal driver he permitted in the use of the insured vehicle. When Tao's father surnamed Qian drove the insured vehicle to dine out, due to alcohol drinking, he needed a designated driver. Shanghai Master An Auto Services Co., Ltd. (hereinafter referred to as “Master An Company”) designated a driver surnamed Chen to drive the vehicle home for him. On the way, the insured vehicle had a traffic accident, which caused the vehicle loss of CNY26,500 and other losses, and Chen was fully responsible for the traffic accident. CCIC paid Tao CNY26,500 for the vehicle loss insurance compensation. CCIC held that it has paid the insured the vehicle loss insurance compensation and legally obtained the insurer's subrogation. Therefore, it required that Chen and Master An Company should jointly and severally pay the aforesaid insurance compensation. Chen and Master An Company held that the designated driver surnamed Chen was a legal driver permitted by the insured and Chen had the legal status of the insured, and thus CCIC had no right to file a claim for recovery against Chen. 陶某为其所有的车辆向大地保险公司投保家庭自用汽车损失保险,约定:保险期间内,被保险人或其允许的合法驾驶人在使用被保险机动车过程中造成的被保险机动车的损失,保险人依照保险合同的约定负责赔偿。陶某的父亲钱某驾驶投保车辆外出就餐,因饮酒需代驾,安师傅公司指派代驾司机陈某驾驶,途中投保车辆发生交通事故,造成车损26,500元及其他损失,陈某负全责。大地保险公司赔付陶某车辆损失保险金26,500元。大地保险公司认为其已向被保险人赔付车辆损失保险金,依法取得保险人代位求偿权,要求陈某、安师傅公司连带支付前述保险理赔款。陈某、安师傅公司认为代驾司机陈某属于被保险人允许的合法驾驶人,具有被保险人的法律地位,大地保险公司无权向其进行追偿。
(2) Adjudication你怀了我的猴子 二、裁判结果
In the view of the Court, although the paid designated driver was a “legal driver permitted by the insured” as prescribed in the contract, the insurer still had the right to exercise subrogation against the paid designated driver. First, the insured (namely, the owner of the vehicle) had the right to claim compensation from the paid designated driver and the insurance company had the basic right to exercise subrogation. Second, if an accident took place, the “legal driver permitted by the insured” may be compensated, which was the definition of the scope of insurance liability. It may not be inferred conversely that such “legal driver permitted by the insured” was the “insured.” Third, the paid designated driver did not enjoy the vehicle loss insurance interest of the insured vehicle and he did not have the status of the insured; the paid designated driver was not a member of the insured and should not be incorporated into the scope of statutory limited recovery; the paid designated driver drove the vehicle for his own interest other than purely for the interest of the insured, and the interest of the paid designated driver was not consistent with that of the insured. Therefore, the paid designated driver had no right against the recovery of the insurer. Different from the uncompensated use or uncompensated designated driving by a relative or friend of the insured, the paid designated driving aimed at seeking profits. The business operator of the designated driving company should take operation risks on its own, which was more suitable for fair allocation of social responsibility. The Court finally rendered a judgment that Master An Company should compensate CCIC CNY26,500 for the insurance compensation loss. 法院认为,有偿代驾人虽然系合同约定的“被保险人允许的合法驾驶人”,但保险人仍有权对其行使代位求偿权。第一,被保险人即车主对有偿代驾人享有赔偿请求权,保险公司存在可代位求偿的基础权利。第二,“被保险人允许的合法驾驶人”发生事故予以赔偿,系对保险责任范围的界定,不可反推其系“被保险人”。第三,有偿代驾人对保险车辆不具有车辆损失保险的保险利益,不享有被保险人之地位;有偿代驾人不属于被保险人的组成人员,不应纳入法定限制追偿的范围;有偿代驾人系为自身利益代驾,而非纯粹为被保险人之利益,与被保险人不具有利益一致性,无权对抗保险人之追偿,且与亲友无偿借用或无偿代驾不同,有偿代驾以营利为目的,由经营者自担经营风险更符合社会责任的公正分配。法院最终判决安师傅公司赔偿大地保险公司保险金损失26,500元。
(3) Significance 三、典型意义我不休息我还能学
This is the first case about an insurance company's recovery against a designated driver company within China (Shanghai) Pilot Free Trade Zone and even in Shanghai Municipality. As the “legal driver permitted by the insured,” a paid designated driver drives an insured vehicle and causes vehicle losses. The vehicle loss insurance incorporates such vehicle losses into the scope of insurance liability. After the insurance company pays the insured the insurance compensation based thereon, can such insurance company exercise subrogation against the paid designated driver? This issue is rarely involved in the existing judicial practice and there are different judgments. In this case, the scope of liabilities of the insurance company and the designated driver company in the vehicle loss insurance has been clarified. First, it helps promote designated driving companies to conduct strict examination of qualifications of designated drivers and constraint on designated driving activities, promote the sound and orderly development of the designated driving industry, remind the designated driving companies to voluntarily cover designated driving liability insurance and other commercial insurance to disperse operation risks; second, it promotes insurance companies to make innovations on insurance business in light of practice, research and develop comprehensive insurance products related to designated driving, disperse risks of designated driving, and provide guarantee for the development of the designated driving industry; third, as the first case, through elaborate and strong legal and factual analysis, it has provided references and thoughts for the handling of this type of cases in future. 本案系上海自贸试验区乃至本市首例保险公司向代驾公司进行追偿的案件。有偿代驾人作为“被保险人允许的合法驾驶人”,驾驶投保车辆造成车辆损失,车辆损失保险将此纳入保险责任范围,保险公司基于此向被保险人支付保险金后,能否再向作为有偿代驾人行使代位求偿权?该问题在现有的司法实践鲜有涉及,且存在相异判决。本案明晰了车辆损失保险中保险公司和代驾公司的责任范围。第一,有助于推动代驾公司对代驾司机资质的严格审查和代驾行为的约束,促进代驾行业的健康有序发展,提示代驾公司应自行投保代驾责任险等商业保险,分散经营风险;第二,促进保险公司结合实践进行保险业务创新,研究开发代驾相关的综合保险,分散代驾风险,为代驾行业的发展提供保障;第三,作为首例案件,通过详尽、有力的法律和事实分析,为后续该类案件的处理提供了借鉴和思路。
     
     
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