Lawyer Cai Huiqiang

【Basic Case】

Dexing Company was established on July 20, 2010 as a Mercedes Benz 4S store in the Wenling area. As the owner of the target vehicle Zhejiang JFQ755 for this small passenger car. On September 25, 2010, Dexing Company purchased Zhejiang JFQ755 Mercedes Benz minibus from a third party due to business development needs. On October 8, 2010, Dexing Company purchased compulsory traffic insurance, vehicle loss insurance, designated repair shop insurance, and non deductible insurance from PICC Road and Bridge Company for the target vehicle. The insurance period was from October 10, 2010 to October 9, 2011. On the evening of September 29, 2011, strong thunderstorm weather occurred in Wenling area, and the urban road area was heavily flooded. When Liu Xiangping was driving the target vehicle near the intersection of Wanchang Road and Shuguang Road in Wenling, the engine was flooded and flamed out. On September 30, 2011, the car was towed to Taizhou Star Automobile Sales and Service Co., Ltd. for inspection and repair. Dexing Company also spent 304662 yuan on maintenance fees for this. Later Dexing Company has repeatedly requested that Renbao Road and Bridge Company compensate for vehicle repair costs within the scope of vehicle loss insurance, but Renbao Road and Bridge Company refused to compensate. Therefore, Dexing Company applied for arbitration to the Taizhou Arbitration Commission on November 21, 2011. At present, the case has been adjudicated.

【Proxies】

Dear Chief Arbitrator, Arbitrator:

With regard to the case of insurance contract dispute between the applicant Taizhou Dexing Automobile Co., Ltd. (hereinafter referred to as "Dexing Company") and the respondent PICC Property and Casualty Co., Ltd. Taizhou Road and Bridge Branch (hereinafter referred to as "PICC Road and Bridge Company"), we, as the agent of the applicant Dexing Company, are now elaborating our views around the focus of the dispute summarized by the arbitral tribunal, and please consider it when making the award:

1.  Whether the accident in this case belongs to the rainstorm risk liability scope of vehicle damage insurance.

Through the trial, The view of PICC Road and Bridge Company is: "There is no dispute about the fact of the accident, but the accident does not fall within the scope of rainstorm risk liability of vehicle damage insurance, but falls within the scope of special engine loss insurance of additional insurance; Dexing Company does not cover special engine loss insurance, so the insurance company is not responsible for compensation; even if it falls within the scope of vehicle damage insurance liability, it is exempted from Article 7, Item 10, according to vehicle damage insurance liability The insurance company is not responsible for compensating for engine damage caused by water ingress into the engine. In this regard, we believe that "the accident in this case is within the scope of rainstorm risk liability of vehicle damage insurance, and the special engine loss insurance is not applicable". The specific reasons are as follows:

(1) Understanding of the risk of "rainstorm".

Meteorologically, the 24-hour precipitation of 50 mm constitutes a "rainstorm". As a meteorological disaster, the main harm of "rainstorm" is the resulting flood. Therefore, we believe that the losses caused by "rainstorm" not only include the direct losses caused by a large amount of rainwater scouring and soaking, but also the losses caused by road water caused by rainstorm. According to the Reply of the Supreme People's Court on How to Determine the rainstorm Problem in the Trial of Insurance Contract Dispute Cases: "In view of the fact that the rainfall on August 24, 1985 (i.e. from 20:00 on August 23 to 20:00 on August 24, 1985) reached the standard of rainstorm, if the subject matter of insurance suffered losses due to the rainfall on that day, the insurer should bear the corresponding liability for compensation." Our understanding is in line with the spirit of the judicial interpretation of the Supreme Court.

(2)Rainstorm is the "proximate cause" of the accident.

The term 'proximate cause' does not refer to the cause that is closest to the loss in time or space, but rather to the most direct, effective, dominant or dominant cause that causes the loss. Article 18 of the Guiding Opinions of the High people's court of Zhejiang Province on Several Issues Concerning the Trial of Property insurance Contract Dispute Cases stipulates: "If the loss of the subject matter of insurance is caused by multiple reasons, and the insurer refuses to make a claim on the ground that it is not within the scope of insurance liability, the insurer shall judge whether it should bear the liability for compensation on the basis of whether the reason that has played a decisive or effective role continuously falls within the scope of insurance liability."

In this case, the driver of the insured vehicle encountered rainstorm during driving, and the water on the road area caused by rainstorm resulted in the vehicle flameout and damage. From the cause of the car damage, the heavy rainstorm occurred earlier that night, and the driver waded behind. When two situations exist simultaneously, the most significant cause of damage should be identified as the proximate cause. From the causal relationship between rainstorm and wading driving, the most intuitive manifestation of heavy rainstorm is the ponding on the road, and vehicles have no choice but to wade. Without heavy rainstorm, it is impossible for drivers to wade in the accident section that night (there is no ponding in the accident section that night without heavy rainstorm), and there will be no vehicle damage in this case. Therefore, we believe that the recent cause of the accident in this case is "rainstorm". Regarding similar situations, Song Hang, the President of the Sixth Civil Court of the Shanghai First Intermediate People's Court, also held a similar viewpoint in the fourth point of his speech at the press conference on the trial of private car insurance disputes (of course, this viewpoint is only for reference).

(3)There is no improper operation by the driver.

PICC Road&Bridge Corporation believes that the damage of "electrical appliances and controllers" (loss has been determined) is caused by rainstorm and should be compensated; Engine damage is caused by the driver restarting the engine after the vehicle has stopped, and it is an expanded loss caused by improper driver operation and should not be compensated. In this regard, we believe that: firstly, Renbao Road and Bridge Company argues that the driver had the fact of expanding the loss due to a second engine start, and should bear the burden of proof in this regard. Secondly, the PICC Road and Bridge Company recognizes that part of the vehicle damage caused by the rainstorm is caused by the same accident, but the vehicle damage in this case is caused by the same accident, and the identity of the accident causes cannot be denied because of the classification of the loss. Moreover, in the case of heavy rainstorm that night, it is obviously unreasonable to ask the driver to stop driving in the middle of the night, and to ask a female driver with two years of driving experience (Liu Xiangping first obtained her driving license on July 4, 2008) to make an accurate judgment on whether the depth and speed of the accumulated water in the rainstorm at night are suitable for driving.

(4)Additional insurance is not applicable to this case.

From the content of the insurance clauses of PICC Road and Bridge Company, the fifth item of Article 4 of the insurance liability clauses stipulates that losses caused by rainstorm shall be compensated, while the tenth item of Article 7 of the liability exemption clause stipulates that "engine damage caused by engine water ingress" shall not be compensated. In this regard, we believe that the engine, as the core component of the insured vehicle, has been included in the scope of insurance coverage by PICC Road and Bridge Company, and its losses are naturally within the scope of insurance claims in principle. Since the exemption clause excludes the engine loss separately, it just means that the "rainstorm" loss includes the engine loss, which is only excluded in the form of the exemption clause based on the insurance operating profit. Therefore, the engine loss in this case falls within the scope of rainstorm risk of the main vehicle loss insurance. In the case that the main insurance liability is not legally exempted, the additional type of engine special loss insurance is not applicable.

To sum up, we believe that the accident in this case belongs to the scope of rainstorm risk compensation of vehicle damage insurance, and PICC Road and Bridge Company should pay all losses including engine loss as agreed.

2. Regarding the issue of whether Renbao Road and Bridge Company has fulfilled its clear obligation to inform.

According to the viewpoint of Renbao Road and Bridge Company, "Article 7 (10) of the exemption clause for vehicle damage insurance clearly stipulates that the insurance company is not responsible for compensation for engine damage caused by water ingress into the engine; Based on the fact that the insurance company has fulfilled its clear obligation to inform the policyholder Gu Qunli of the exemption clause, the insurance company has the right to invoke the clause to refuse compensation; Even if it is not informed, Dexing, as a Car dealership, is well aware of the above exemption clauses. " In this regard, we believe that "the obligation of explicit disclosure is the statutory obligation of the insurer specified in the Insurance Law, which is not exempted because the insured is a Car dealership; the evidence provided by PICC Road&Bridge Corporation is insufficient to prove that it has fulfilled its obligation of disclosure". The specific reasons are as follows:

(1)Renbao Road and Bridge Company has a legal obligation to clearly inform Dexing Company of the exemption clauses.

Renbao Road and Bridge Company believes that "Dexing Company, as a distributor specializing in the sales of automotive business, has been insured for two consecutive years for vehicle damage insurance. Therefore, Dexing Company is aware of the exemption clause for vehicle damage insurance liability and does not need to be notified." In this regard, we believe that:

①The obligation to explain exemption clauses is a legal obligation determined by insurance law. Article 17 of the Insurance Law of the China stipulates that: When entering into an insurance contract, if the standard terms provided by the insurer are used, the application form provided by the insurer to the policyholder shall be accompanied by standard terms, and the insurer shall explain the content of the contract to the policyholder. For clauses in the insurance contract that exempt the insurer from liability, the insurer shall make sufficient reminders on the application form, insurance policy, or other insurance documents to draw the attention of the policyholder when entering into the contract, and provide written or Provide a clear explanation to the policyholder orally; If there is no prompt or clear explanation, this clause shall not have any effect This article clearly stipulates that the insurer has a clear obligation to inform all policyholders, and this obligation can be fulfilled in different ways, but it is not exempted due to different identities of policyholders.

②Dexing Company is not an insurance agent or broker. According to Article 119 of the Insurance Law of the China: Insurance agencies and insurance brokers shall meet the conditions stipulated by the insurance regulatory agency of the State Council and obtain the license for operating insurance agency business and insurance brokerage business issued by the insurance regulatory agency. Insurance professional agencies and insurance brokers shall register with the administrative authorities for industry and commerce and obtain a business license based on the license issued by the insurance regulatory agency, Dexing is only limited to the sales of Mercedes Benz brand cars and auto parts, not including insurance agents, which is different from other Mercedes Benz 4S stores. For example, Taizhou Star Auto Sales Service Co., Ltd.'s business scope includes the sales of Mercedes Benz brand cars, auto maintenance and Vehicle insurance insurance agents, which are qualified as insurance brokers; Dexing Company is also different from specialized insurance agencies, such as Taizhou Zhongtai Insurance Agency Co., Ltd. whose business scope includes selling insurance products, collecting premiums, conducting agency surveys, and settling claims. At the same time, Dexing Company has never received premium commissions from insurance companies. Therefore, as an ordinary automobile sales enterprise, Dexing Company is not a subject that insurance companies do not need to inform.

③This case does not have the fact of continuous insurance claimed by People's Insurance Road and Bridge Company, and continuous insurance cannot exempt the obligation of disclosure. Firstly, Dexing Company was established on July 20, 2010. From the registration content of the driving license, the insured vehicle was registered on April 14, 2008. Dexing Company purchased it as a second-hand car on September 25, 2010 and changed its registration to the company's name. Therefore, there is no fact of continuous insurance coverage from PICC Road and Bridge Company. Secondly, even if the insurance is continuously insured, according to the judicial interpretation of the trial of insurance contract cases issued by local courts, the first paragraph of Article 11 of the Guiding Opinions of the High people's court of Zhejiang Province on Several Issues Concerning the Trial of Property insurance Contract Dispute Cases stipulates that "if the same applicant has signed more than two similar insurance contracts, the insurer's obligation of explicit explanation can be appropriately mitigated but not exempted"; Article 5 of the Minutes of Discussion of Jiangsu High People's Court on Several Issues Concerning the Trial of Insurance Contract Dispute Cases also stipulates that "if the same applicant has signed more than two insurance contracts of the same type, the insurer's obligation to make clear can be appropriately mitigated but not exempted"; Article 9 of the Guiding Opinions of the High people's court of Guangdong Province on Several Issues Concerning the Trial of Insurance Contract Dispute Cases If the policyholder or insured applies for the same insurance subject matter or type of insurance again or multiple times with the same insurer, and there is evidence to prove that the insurer has fulfilled the obligation of clear explanation, and the insured claims that the insurer's liability exemption clause is invalid based on the insurer's failure to fulfill the obligation of clear explanation in this application, the people's court shall not support it. The above local regulations only agree that multiple insurances can alleviate the obligation of clear disclosure, but they all advocate that insurance companies cannot be exempted from their obligation of clear disclosure. Therefore, Renbao Road and Bridge Company advocates that this case does not require a clear explanation of Dexing Company and lacks legal basis.

④From judicial precedents, even if the policyholder is a relative of an insurance company, it cannot exempt the insurance company from its obligation to clearly explain to the policyholder. Here, we provide Wenling People's Court's (2009) TWSCZ No. 1129 civil judgment and Taizhou Intermediate people's court's (2009) ZTSCZ No. 509 civil mediation statement after the appeal of the case for reference. In this case, the wife of the insured (plaintiff in first instance, appellant in second instance) was an insurance business personnel of an insurance company (defendant in first instance, appellant in second instance), and the car was insured through the wife of the insured. 1、 The second instance court did not support the insurance company's claim that the insured knew it without notice.

(2)Renbao Road and Bridge Company failed to fulfill its clear obligation of disclosure in accordance with the law.

During the arbitration process, PICC Road and Bridge Company provided a copy of the insurance policy with the words "Gu Qunli" signed by an outsider, in order to prove that it had informed the policyholder "Gu Qunli" of the exemption clause during the underwriting process, thereby fulfilling the clear obligation of disclosure stipulated in the Insurance Law. In this regard, we believe that:

①Dexing Company is the object of clear notification from Renbao Road and Bridge Company. According to the vehicle driving license, policy, and premium invoice, the insured vehicle belongs to Dexing Company, and the policy insured is Dexing Company. The premium invoice proves that Dexing Company has paid the insurance premium. Therefore, both the policyholder and the insured in this case are Dexing Company, and Dexing Company is the disclosure object for the People's Insurance Company of China Road and Bridge Corporation to fulfill its clear disclosure obligation. Renbao Road and Bridge Company claims that the insured vehicle of Dexing Company was insured by an outsider named "Gu Qunli". On the one hand, this claim lacks evidence to prove it, and on the other hand, "Gu Qunli" does not have an insurance interest in the insured object, and the insurance is also invalid.

②The application form provided by Renbao Road and Bridge Company is not sufficient to prove that it has fulfilled its obligation to inform Dexing Company. Firstly, the authenticity of the application form cannot be confirmed, and it cannot be determined whether the signature of "Gu Qunli" on the application form is signed by an outsider, "Gu Qunli". We have raised objections to its authenticity and applied for handwriting verification during the court hearing. Secondly, the insurance policy provided by Renbao Road and Bridge Company did not have the official seal of Dexing Company to confirm, and Renbao Road and Bridge Company also failed to provide the authorization document that "Gu Qunli" has the right to represent Dexing Company for insurance, so "Gu Qunli" has no right to represent Dexing Company for insurance. Even if Renbao Road and Bridge Company informs "Gu Qunli" about the exemption clause, its effectiveness does not naturally extend to Dexing Company.

③The insured vehicle in this case does not have the same type of insurance contract insured again or multiple times. The insured vehicle in this case was registered on April 14, 2008 and subsequently acquired property rights by Mao Yuexin, Zhu Xianli, Wang Zhou, and Zhu Yingrong. It was purchased and registered as a second-hand car by Dexing Company on September 25, 2010. This car is the first company owned vehicle of Dexing Company since its establishment, and it is also the first time that Dexing Company has purchased motor vehicle insurance from PICC Road and Bridge Company. Prior to this insurance application, Dexing Company had never insured against this type of insurance with the respondent company, and the People's Insurance Corporation of China Road and Bridge Corporation did not provide any evidence to prove that Dexing Company had insured against similar types of insurance or had informed Dexing Company of the corresponding insurance terms for this type of insurance.

To sum up, we believe that according to Article 17 of the Insurance Law, Article 6 of the Interpretation of the Supreme People's Court of the China on Several Issues Concerning the Application of the Contract Law of the People's Republic of China (II), and Article 10 of the Guiding Opinions of the High people's court of Zhejiang Province on Several Issues Concerning the Trial of Property insurance Contract Dispute Cases, insurance companies should bear the burden of proof for their clearly stated obligations. Based on the failure of Renbao Road and Bridge Company to provide conclusive and sufficient evidence in accordance with the law to prove that it has fulfilled its clear obligation to inform, the exemption clause cited by Renbao Road and Bridge Company has no legal effect on Dexing Company.

3. How to compensate for the losses in this case.

We have no objection to the partial losses of the electrical appliances and controllers that have been assessed by Renbao Road and Bridge Company. However, we believe that the overall assessment project of Renbao Road and Bridge Company is incomplete, especially for the engine loss, which is the most severely damaged in this case. Therefore, the loss assessment of PICC Road and Bridge Company can not fully reflect the full picture of the car damage of Dexing Take-home vehicle, for which we have applied to the arbitration tribunal for the identification of maintenance costs, and the final amount of loss in this case should be subject to the identification conclusion.

To sum up, we believe that the accident in this case falls within the scope of rainstorm risk liability of vehicle damage insurance, and the respondent Renbao Road and Bridge Company has not provided conclusive and sufficient evidence to prove that it has clearly informed Dexing about the liability exemption clause, so Renbao Road and Bridge Company should make compensation according to the vehicle damage insurance.

The above opinions shall be taken into consideration by the arbitration tribunal when making an award.

Applicant: Taizhou Dexing Automobile Co., Ltd