25/2007 BR ROD (SPECIAL) ( 541903)
(A PUBLICATION LAW)
Substitution of a foreign insurance company. Substitution is recognized in
Greece and the insurance company is entitled to claim from the injured party and
his insurer whatever he was obliged to pay to his insured.
Lateral treatment. An element of the lawsuit is the mention of the debtor's inactivity.
Decision Number 25/2007
THE SINGLE-MEMBER COURT OF FIRST INSTANCE OF RHODES
Consisting of Judge Ourania Karandzikis, first judge, whom he appointed
the President of Primary and by the Secretary Ioanna Dimelli.
He sat publicly in his audience on 19.9.2006, to judge the
case between:
Plaintiff: Regional German Federal Sickness Fund
city of Lübeck, legal entity under public law with the name "M. N. H. L.",
legally represented, who was represented at the trial by the power of attorney
lawyer of Irini Giortsou.
The defendants: 1) X. P., a resident of Rhodes, 2) N. A., a resident of Israel, 3) K.
F., a resident of Rhodes, 4) of the Anonymous Insurance company under the name
"Hey. P. A. E.", with headquarters in Athens, legally represented, of which the
the first three did not appear, nor were they represented by an attorney,
while the fourth was represented by Ioannis' attorney
Caramichali.
The plaintiff requests that her lawsuit from 4.11.2005, filed in
Registry of this Court with number 372/2005, determined for the
trial of 6.6.2006, during which it was postponed for the trial that
referred to at the beginning of the present and was written on the board. During the discussion
of the case, the attorneys of the parties developed them
their claims and requested that what is mentioned in the proposals be accepted
their.
AFTER STUDYING THE LITERATURE
CONSIDERED ACCORDING TO THE LAW
From the no. 2606c/28.4.2006, 2407c/5.4.2006 performance reports of
bailiff at the Court of First Instance of Rhodes K.P. and the no. 5267c/
5.5.2006 service report of the bailiff in the same Court of First Instance A. D.,
which the plaintiff submits and invokes, it appears that accurate certified
certified copy of the lawsuit in question with summons for discussion on
trial of 6.6.2006, during which it was postponed for the trial that
is referred to at the beginning of this, with a note on the board - which follows
position of subpoena according to the provisions of articles 226 par. 4 and 241 of the Civil Code,
was duly and timely served on the first three defendants. The
but the latter did not appear during the above hearing, during which the
case was pronounced from the order of the board concerned and therefore must
are tried in absentia, except that the trial of the case will take place as if they were all present
the parties present (articles 681, 672 of the Civil Code).
According to the provision of article 25 paragraph a` of the Civil Code, the debts from a contract
governed by the law to which the parties are subject. Therefore the
question whether the foreign insurance company paying the insurance compensation
is substituted for the injured party's rights against the liable third party
regulated by the law governing the insurance contract. Not this provision
must be applied accordingly to include social security, h
which is not based on a contract between the victim and his insurance company,
but directly to the law if the conditions for its application are met. Moreover
according to German law, namely according to paragraph 116 of the tenth
book of the social insurance code (Sozialgesetzbuch X) provides for
substitution of the social security institution in the rights of the insured,
to the party that made benefits that serve her in the same way
damage recovery. The claim for compensation is direct and direct against
of the third party liable for compensation. The time in which the
insurance substitution in the case of accident insurance, is placed
at the time the damaging event takes place, provided that against
at this moment the insurance relationship and the obligation on his part exist
insurance company to pay benefits. Also according to Article 53 of
n.d. 4259/1962 which ratified the Greek-German agreement of 28.3.1962
on social security, the mutual transfer of claims also applies to
case where the tort against the socially insured person was committed in
Hellas. This regulation is already overlapped by article 93 of no.
1408/71 of Regulation (EEC), as amended by no. 118/97
Regulation (EC), according to which when the debtor institution substitutes
in accordance with the legislation applied by this beneficiary in
rights, which he has against the third party, this substitution
is recognized by each member state (see A. Kritikos, Compensation from Traffic
automobile accidents, ed. 1998, par. 766 et seq. and 2402). By transfer
of the claim to the social security body does not change its legal status
nature. The claim is still and remains a tort claim. The
related issues must henceforth be dealt with on the basis of
this characterization (AK 26). Thus to the foreign social security institution with
the assistance of the conditions of the law is transferred by the victim or against
of the liable compensation claim. The latter according to AK 26 is governed by
Greek justice.
The plaintiff in the present action states that at the place and time and under
the special conditions described in it by the first defendant driving
car owned by him, which was insured against third parties
liability to the fourth defendant insurance company was involved in an accident
with the car driven by the second defendant, owned by the third
defendant, who was insured for civil liability against third parties
to the fourth defendant insurance company. That as a result of the above accident
which is due to the complicity of both drivers, as has been determined
ultimately, the insured T. K. and her daughter were injured
(indirectly insured member) L. K., to which he paid, as a social institution
insurance, for the detailed benefits the total amount of
18,979.49 euros and was automatically substituted by law for the rights of
sufferers - insured. Based on these incidents, he asks to be obliged, with
decision to be declared temporarily enforceable, the first three defendants to
pay him the above amount, and the fourth defendant to be obliged to
pay this amount to the first three, and to oblige to this end,
jointly and severally each and with the legal interest from the performance
of the present until the payment and be sentenced in his court
expenditure.
With this content and request, the lawsuit is competently brought up for discussion
before this Court (articles 9, 14 par. 2, 16 par. 12, 22 of the Civil Code),
during the special procedure of articles 666, 667, 670 – 676, 681 of the Civil Code. Min
but in the part where the plaintiff makes a false claim against the insurance company
company (fourth defendant) must be rejected as indefinite, since no
there is no mention of the debtor's inactivity, which is an element
necessary to be set forth for the completeness of the pleading at its disposal
of article 216 of the Civil Code (see Decree-Law No. 368/2005, Public Law, A. Crete, ibid., para. 1901,
Nika in Keramea – Kondyli – Nika, Interpretation of the Civil Code, article 72, no. 1). according to
otherwise the lawsuit is legal, based on the provisions of articles 914 et seq. 297,
298, 346 AK, 2, 4, 9, 10 n. GpN/1911, 907, 908 and 176 KPolD as well as in
aforementioned provisions of German law, which are taken into account
ex officio by the Court, in accordance with article 337 of the Civil Code.
From all the documents that the plaintiff legally presents and invokes
the following facts were proved: Due to motor vehicle
of an accident that took place on 29.7.1999 on the provincial road Aerolimena –
Asgourou, where the first defendant driving it was involved on the one hand
with registration number …
the other side the second defendant driving it with registration number
….. ICHE car owned by the third defendant, T. was injured.
K. and L. K.. With the no. 287/2005 decision of the Dodecanese Court of Appeal, n
which was issued on suits and counter suits between the above
injured and of the defendants, it was finally adjudged that they were guilty of the
legal accident is the first defendant to the extent of 30% and the second
defendant by percentage 70%. As a result of the accident in question, T. K. suffered
injury to the right shin and the right end of the foot, while the minor L. K. suffered
osteosynthetic fracture of the right thigh (see the 29.7.1999 forensic
reports of doctor A. S.). The latter was transferred to the G.N.N of Rhodes, where
underwent osteosynthetic union of the fracture and subsequently
was treated at the University Hospital of Lübeck in Germany, from
30.9.1999 to 2.10.1999, when on 1.10.1999 he underwent surgery
material removal and metal removal from the right leg. In the next ones
weeks he had pain in the right upper limb and was admitted to the Accident Hospital
of Hamburg, where he was hospitalized from 14.1.2004 to 21.1.2004, he underwent
right thigh reconstruction surgery on 15.1.2004 and administration was resumed
antibiotic treatment. On 25.3.2004 he was submitted to the same hospital in a new
surgery to disinfect the middle right thigh and was hospitalized from 24.3.2004 to
30.3.2004 while it was recommended that regular clinical, radiological and
laboratory tests and physical therapy exercises. He was hospitalized again
in the same hospital from 4.10.2004 to 8.10.2004 and underwent surgery
disinfection on 5.10.2004 with the same recommendations as above. He underwent a special examination
treatment due to osteomyelitis and therefore was admitted on 15.3.2005 to
clinic ………., where he remained until 5.4.2005.
It was also proven that at the time of the accident the above patients
were insured in the plaintiff, who receives a health care fund and
is a legal entity under public law. For her hospitalization expenses as above
minor – indirectly insured, the plaintiff paid in installments (as it turns out
from the submitted electronic entries) the amount of 7,214.43 euros
for the period of hospitalization from 23.8 to 12.9.2000, the amount of 656.66 euros for
exclusive nurse fee from 23.8. until 12.9.2000, the amount of 61.36
euros for the pre-hospitalization on 12.12.2000, the amount of 3,613.22 euros for the
period of hospitalization from 14.1. until 21.1.2004, the amount of 3,097.22 euros for the
period of hospitalization from 24.3. until 29.3.2004, the amount of 2,065.81 euros for the
period of hospitalization from 4.10 to 8.10.2004, the amount of 1,374.4 euros for the
period of hospitalization from 15.3 to 15.4.2005. The plaintiff further considered that
for the transfer of the minor to hospital care in each case
hospitals traveled a total of 960 km at 0.24 euros for each travelled
kilometer, i.e. in total he paid the insured for travel expenses
amount of 230.40 euros. For six physical treatments of the right leg, as he had
established, which took place on 25.9, 28.9, 4.10, 5.10, 9.10 and 12.10 in
Physiotherapy Center of Sabine Villemait in Lübeck, the claimant paid the
total amount of 75.74 euros. That is, the plaintiff paid in total for L. K.
(indirectly insured member) the amount of 18,389.29 euros. It also turned out that
T. K. due to the long hours of work with her minor daughter the chronicle
period from 10.8.1999 to 3.9.1999, he needed daily, from the presence
domestic helper for two hours, for whose remuneration the plaintiff paid the
amount of 291.44 euros. Furthermore, due to her injury, she was incapacitated
for work until 24.9.1999, when the plaintiff paid her the amount
of 265.66 euros, as a sickness benefit. The amount of 33.10 euros which
paid for the purchase of a technical orthopedic bandage must be rejected
unfounded as a matter of fact, because the need for the purchase in question was not proven. As cm
therefore, for the directly insured T. K., the plaintiff paid the total amount
of 557.1 euros. Thus, the total amount of benefits amounted to 18,946.39
euros, in which the plaintiff was automatically substituted by the law at
rights of his insured, as contained in the preceding
legal thought, and is entitled to claim it from the first three
defendants. Based on the above, the lawsuit under consideration must be made in
partly accepted and to compel the first three defendants to pay to
claim, jointly and severally, the amount of 18,496.39 euros, with the legal interest
from the day after the service of the lawsuit, declaring this decision
temporarily executor for the amount of 9000 euros, because the delay in
execution in respect of this amount may cause significant damage to the claimant
(Articles 907, 908 of the Civil Code). Finally, a default parabola must be defined for
in the event of an appeal against the present case (articles 501, 505
par. 2 of the Civil Code), while the plaintiff's court costs must be imposed on
burden of the first three defendants, according to the provisions of article 178 par. 2
KPolD, contrary to the costs of the fourth defendant who must
be imposed against the plaintiff, according to the provisions of article 176 of the Civil Code, such as
more specifically defined in the ordinance.
FOR THOSE REASONS
He is judging in the absence of the first three defendants and in opposition of the others.
It sets a parole for the case of challenging default judgment against it
of this decision in the amount of one hundred and fifty (150) euros for each desert
judged.
Dismisses the action against the fourth defendant.
He orders the court costs of the fourth defendant against him
plaintiff, which he sets at the amount of three hundred and eighty (380) euros.
He partially accepts the lawsuit.
It obliges the first three defendants to pay to the plaintiff, e
in full each, the sum of eighteen thousand nine hundred and forty-six
euro and thirty-nine cents (18.946.39) with legal interest from the following day
of the service of the action.
Proclaims the decision, as to its previous provision, temporarily
executor.
He orders the plaintiff to pay the costs of the first three
defendants, which he sets at the amount of five hundred and sixty (560) euros.
Judged, decided and published at an extraordinary public meeting at
his audience in Rhodes, on January 31, 2007, without the presence of
parties and their attorneys.
THE JUDGE THE SECRETARY
E.F.
Source: Law Legal Information Network (www.lawdb.intrasoftnet.com)