570,000 yuan artificial limb compensation case
Court: Hefei Intermediate People’s Court of Anhui Province
Lawyer: Lawyer Xu
Law Firm: Beijing Times Jiuhe Law FirmAppellant (plaintiff in the first instance): Li X, driver.
Appellant (defendant in the first instance): Anhui Branch of China PA Property Co., Ltd.
Appellee (defendant in the first instance): Luo X, driver.
Appellee (defendant in the first instance): Yu X, driver.
Appellee (defendant in the first instance): Anhui XXX Building Materials Co., Ltd., domiciled in Hefei City.
Appellee (defendant in the first instance): Fuyang XXX Auto Transport Co., Ltd., domiciled in Fuyang City, Anhui Province.
Appellee (defendant in the first instance): Fuyang City Center Branch of China RS Property Co., Ltd.
Appellant Li In a motor vehicle traffic accident liability dispute involving China RS Property Insurance Co., Ltd. Fuyang City Center Branch (hereinafter referred to as RS Insurance Fuyang City Center Branch), the company refused to accept the civil judgment of the Baohe District People's Court of Hefei City, Anhui Province and appealed to this court. After this court accepted the case, it formed a collegial panel to hear the case in accordance with the law, and the trial has now been concluded.
The court of first instance found that at about 6:40 on January 7, 2014, Luo The front right part of the building first collided with the left rear part of the stone contained in the carriage of Wan K heavy-duty ordinary truck that Yu X had parked there in violation of regulations. Then the front part of the driving building of Wan A heavy special structure truck hit the pedestrian Li X who was on the left side of Wan K truck in front, causing damage to Wan A truck and Li X being injured. The Baohe Brigade of Hefei Traffic Police Detachment determined that Luo X should bear the main responsibility for the accident, Yu X should bear the secondary responsibility for the accident, and Li X had no responsibility.
After the accident, Li After admission, debridement and suturing of the right upper limb, amputation of the right lower limb and plaster external fixation of the left upper limb, open reduction and internal fixation of bilateral rib fractures, open reduction and internal fixation of comminuted fractures of the middle and lower left humerus + radial nerve exploration were performed under general anesthesia. When he was discharged from the hospital, the doctor recommended continued hospitalization, a three-month rest, enhanced nutrition, rehabilitation treatment, respiratory care, long-term bed rest care and dressing changes for the incision of the right lower limb, external fixation of the thoracolumbar segment for one month, and a reexamination after one month. Timely installation of a prosthesis on the right lower limb, follow-up, etc. Later, Li X went to the hospital for multiple check-ups and spent a total of 353,752.1 yuan in medical expenses during the treatment period. During Li X’s hospitalization, the building materials company paid 210,000 yuan in medical expenses for Li In February 2014, Li In March 2014, the court issued a civil ruling, ruling that PA Insurance Anhui Branch should pay Li X 70,000 yuan in advance, and RS Insurance Fuyang City Center Branch should pay Li X 50,000 yuan in advance. Later, PA Insurance Anhui Branch and RS Insurance Fuyang City Center Branch paid RMB 70,000 and RMB 50,000 respectively to Li X in accordance with the above ruling.
After Li On April 23, 2015, Nanjing Yingzhong Nai Prosthetics and Orthotics Co., Ltd. issued an opinion on the configuration of Li Service life and maintenance: The service life of the above-mentioned prostheses is related to the frequency of use. Under normal circumstances, the service life of the prostheses is a fixed service life. It is recommended to replace them according to the specified number of years. The patient's physical therapy and assembly training period is about 25 days, and one person is required to accompany him. Each replacement and adjustment time is about 5 days. Food and accommodation expenses are at your own expense. On April 24, 2015, the plaintiff installed the XXX magnesium alloy five-link high-power air pressure knee-moving ankle and foot prosthesis issued by Nanjing XXX Prosthetics and Orthotics Co., Ltd. in the above configuration opinion, and paid a fee of 50,000 yuan.
Li PA Insurance Anhui Branch applied to appraise the non-medical insurance drugs (including medical fees, inspection fees, steel plate materials, etc.) incurred by Li The court entrusted Anhui XXX Appraisal Center and Anhui XXXX Orthopedic Forensic Appraisal Institute to conduct judicial appraisals on the above-mentioned application matters in accordance with the law. The Anhui XXX Forensic Appraisal Center issued two judicial appraisal opinions in August 2015 and September 2015 respectively. They assessed that: Li The accident caused damage to the right lower limb, leaving the right lower limb missing above the knee joint, and was assessed as a level 5 disability due to a road traffic accident; Li It is a grade 8 disability caused by a road traffic accident; Li Tenth-level disability due to a traffic accident; Li In August 2015, Anhui Huaan Prosthetics XXX Judicial Appraisal Institute issued a judicial appraisal opinion. The appraisal opinion was: Li The maintenance cost is 16% of the price of the prosthesis; the initial and reassembly of the prosthetic limb and functional training time are about 15 days and 7 days respectively; the installation period of the compensation is stipulated by the people's court in accordance with relevant laws and regulations, generally starting from the month of disability determination to the average life expectancy of the population in Anhui Province (75 years old).
The owner of vehicle No. A in Anhui Province is a building materials company. The vehicle is insured by the Anhui Branch of PA Insurance with compulsory motor vehicle traffic accident liability insurance and commercial third-party liability insurance (the insurance limit is 500,000 yuan). If it is not insured, no deductible will be included. In addition, the terms of the commercial third-party liability insurance for Wan A vehicles state that if the vehicle is primarily responsible for the accident, the insurer's deductible rate is 15%. The accident in this case occurred during the insurance period. The actual owner of vehicle Wan K is Yu The vehicle identification code of the vehicle No. K in Anhui Province is stated as XXX, and the insurance policy of the vehicle also states that the driving number of the vehicle is XXX.
Because Li X's claim failed, he went to the court to request a ruling: 1. Luo X, Yu
The court of first instance held that the fact that Luo X drove vehicle No. A in Anhui and Yu X drove vehicle No. K in Anhui caused a road traffic accident that caused Li According to legal provisions, if a motor vehicle is involved in a traffic accident and causes damage, it shall be liable for compensation in accordance with the relevant provisions of the Road Traffic Safety Law. Luo X was at fault while driving and should bear liability for compensation according to the proportion of accident liability; the building materials company is the owner of Wan A vehicle and should jointly bear liability for compensation with Luo X according to the proportion of liability for the accident. Yu X was at fault while driving and was the actual owner of vehicle No. K in Anhui Province, so he should bear the liability for compensation in accordance with the proportion of liability for the accident; the automobile company was the registered owner of vehicle No. K in Anhui and should jointly bear liability for compensation with Yu X according to the proportion of liability for the accident. As the underwriter of Wan A vehicle compulsory traffic insurance and commercial third party liability insurance, PA Insurance Anhui Branch should bear the compensation liability by deducting the corresponding deductible rate within the insurance liability limit according to the accident liability ratio. RS Insurance Fuyang City Center Branch, as the underwriter of Wan K vehicle compulsory traffic insurance and commercial third party liability insurance, should bear compensation liability within the insurance liability limit according to the accident liability ratio.
RS Insurance Fuyang City Center Branch argued that the driving number of the Anhui vehicle No. K driven by Yu X that caused the accident did not match the driving number of its insured vehicle, and it should not be liable for compensation. The court held that the frame number of the insured vehicle stated in the insurance policy of RS Insurance Fuyang City Center Branch was consistent with the vehicle identification number stated in the driving license of the vehicle No. K in Anhui. The vehicle No. K was the insured vehicle stated in the insurance policy of RS Insurance Fuyang City Center Branch. The above-mentioned defense opinions of RS Insurance Fuyang City Center Branch have no factual and legal basis and will not be accepted. Therefore, after Li X’s losses were assessed in accordance with the compensation scope, items and standards stipulated in laws and regulations, PA Insurance Anhui Branch and RS Insurance Fuyang City Center Branch would compensate Li X within the liability limit of compulsory motor vehicle insurance; for losses exceeding the liability limit of compulsory motor vehicle insurance, Luo For the losses that Luo X and the building materials company should bear that exceed the liability limit of the compulsory motor vehicle insurance, PA Insurance Anhui Branch will deduct 15% of the deductible rate within the commercial third party liability insurance limit to compensate 85%, and Luo X and the building materials company will bear the liability for the shortfall. For losses that Yu X and the automobile company should bear that exceed the liability limits of the compulsory motor vehicle insurance, RS Insurance Fuyang City Center Branch will compensate them within the limits of commercial third party liability insurance.
Li 2. Hospitalization food subsidy is 1,170 yuan (30 yuan/day for 39 days of hospitalization). 3. The nutrition fee is 2,700 yuan (30 yuan/day, and the nutrition period is 90 days by Anhui XXX Judicial Identification Center). 4. Claiming a disability compensation of 337,810.4 yuan. The hospital believed that Li 5. It advocated that the follow-up treatment fee be 9,250 yuan. The hospital believed that according to the judicial appraisal opinion issued by the Anhui New Latic Forensic Authentication Center, the basic follow-up treatment cost for removal of the internal fixation of the left humeral fracture was about 8,250-9,250 yuan. The follow-up treatment fee was determined to be 9,000 yuan based on factors such as the injury. 6. Claiming that the fee for assistive devices for the disabled is RMB 68,610 (RMB 50,000 for prosthetic installation + RMB 16,000 for maintenance + RMB 2,610 for accompaniment). The hospital believes that based on the discharge records, the configuration opinion issued by Nanjing Yingzhong Nai Prosthetics and Orthotics Co., Ltd., and the plaintiff’s invoice for the cost of installing prosthetics, this claim has factual and legal basis and is supported. 7. Claiming that the follow-up fee for disability assistive devices is 191,086.8 yuan. The hospital believes that according to the opinions issued by Nanjing XXX Prosthetics and Orthotics Co., Ltd. and Anhui XXX Prosthetics and Orthotics Judicial Appraisal Institute, the magnesium alloy five-link high-power air pressure knee and ankle movement installed by Li The prosthetic limbs can be used for 4 years and will need to be replaced in 2019. Based on the average life expectancy of the population in Anhui Province (75 years old), Li X will need to replace the domestic common applicable skeletal pneumatic knee joint energy storage foot and thigh prostheses 6 times at a cost of 163,906 yuan. 8. It advocated a mental damage solatium of 54,400 yuan. The court believed that Li 9. The appraisal fee is 5,230 yuan, which will be determined based on the appraisal fee invoice. 10. The transportation fee is 1,800 yuan, which will be determined based on the injury and treatment conditions.
In summary, the total losses of Li Within the limit of the third party liability insurance, a 15% deductible rate will be deducted and compensation of 484,662 yuan will be made, and Luo
Accordingly, in accordance with Article 16 of the Tort Liability Law of the People's Republic of China, Articles 17, 18, 19, 20, 21, 22, 23, 24, 25, and 26 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Applicable Law in the Trial of Personal Damage Compensation Cases, and Article 16 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Applicable Law in the Trial of Road Traffic Accident Damage Compensation Cases. And the judgment of Article 8, paragraph 2 and Article 10 of the "Interpretation of the Supreme People's Court on Several Issues Concerning Determination of Liability for Mental Damage in Civil Torts":
1. PA Insurance Anhui Branch shall compensate Li X for losses of 594,662 yuan within the insurance limit within ten days from the date of the judgment (implementation method: after deducting the 80,000 yuan it has paid to Li
2. RS Insurance Fuyang City Center Branch shall compensate Li X for the loss of 354,367.3 yuan within the insurance limit within ten days from the date of the judgment (method of implementation: after deducting the 50,000 yuan it has paid to Li
3. Luo
4. Dismiss Li X’s other claims.
Li X appealed, claiming that the first-instance court determined that Li
PA Insurance Anhui Branch appealed and claimed that the first-instance court made an error in calculating the amount of compensation borne by PA Insurance Anhui Branch in commercial third party insurance. The calculation method should be commercial compensation = 500,000 (1-15%) (1-0%) = 425,000 yuan. The first-instance court calculated it as 484,662 yuan, an overcalculation of 59,662 yuan, and requested the second-instance court to change the judgment and reduce the compensation amount by 59,662 yuan.
In the second trial, the parties did not provide evidence. After a comprehensive review of the evidentiary materials and defense opinions provided by the parties in the first instance, this court confirmed the facts found in the first instance judgment.
This court held that: Based on the appeals and defense opinions of all parties, the focus of the dispute in the second instance of this case was mainly whether the first instance court’s determination of Li X’s subsequent disability assistive device fees and the amount of compensation that PA Insurance Anhui Branch should bear in commercial insurance was correct. Regarding Li X’s subsequent disability assistive device fees. According to the appraisal opinion, the calculation is based on the average life expectancy of the population in Anhui Province, and does not necessarily count until Li X is 75 years old. Taking into account Li X’s age and injury, the first-instance court determined that Li X still needs to replace the domestic common applicable skeletal pneumatic knee joint energy storage foot and thigh prostheses 6 times, which is not inappropriate. The cost is 163,906 yuan. Regarding the issue of the amount of compensation that PA Insurance Anhui Branch should bear in commercial insurance. The calculation method for the compensation amount stipulated in the commercial third party insurance insurance clause submitted by PA Insurance Anhui Branch is: compensation = compensation limit (1-accident liability deductible rate) (1-absolute deductible rate). PA Insurance Anhui Branch claims that based on the calculation method agreed in the insurance clause, the compensation for the commercial insurance part should be 425,000 yuan.
After review, it was found that the commercial third party insurance clauses submitted by PA Insurance Anhui Branch regarding the calculation method of the compensation amount were not bolded or marked clearly different from other clauses. That is, no reasonable method was used to draw the attention of the policy holder to the clause that exempts or limits its liability, nor was the clause explained. The court of first instance excluded the application of this clause and calculated the compensation amount in the commercial insurance of 484,662 yuan based on the total compensation amount of 570,190.2 yuan that the insured should bear in addition to the compensation limit of the compulsory traffic insurance, after deducting a 15% deductible rate. In summary, the appeal requests of Li X and PA Insurance Anhui Branch lack factual and legal basis, and this court will not support them. 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:
The appeal was dismissed and the original judgment was upheld.
This judgment is final.
May 16, 2016
Because the judgment involves the privacy of personal information, all names in the article are pseudonyms.