China: 【建工险判例系列】分项保险合同和总括保险合同如何认定?

Last Updated: 11 July 2019
Article by Huang Huazhen
Most Read Contributor in China, July 2019

一、裁判概览

(一)案件基本情况

2003年1月15日,中铁四公司与安徽省蚌明高速公路开发有限公司通过招标签订了一份施工合同协议书,由中铁四公司承包蚌明高速公路路基工程第七合同段工程,该合同总价为10312万元。其中,中铁四公司的标书中载明桥梁工程的钢围堰总额为474.7518万元、便道工程总额为10.5047万元、驻地建设总额为60万元。在施工中,中铁四公司实际完成的钢围堰工程、便道工程、驻地工程的工程量分别为1007.364万元、40万元和80万元。

 2003年3月2日,中国太平洋财产保险股份有限公司蚌埠中心支公司(以下称:太保蚌埠公司)与中铁四公司下属的中铁大桥局集团蚌明高速公路第七合同段项目经理部(以下简称蚌明项目部)签订一份《建筑工程一切险保险合同》(以下简称《保险合同》),《保险合同》第1条第1部分第1款第3项规定:对每一保险项目的赔偿责任均不得超过本保险单明细表中对应列明的分项保险金额以及本保险单特别条款或批单中规定的其他适用的赔偿限额。第4条第1款第1项规定:本保险单明细表中列明的保险金额应不低于建筑工程——被保险工程完成时的总价值;第4条第2款第1项规定:若保险人是以保险工程合同规定的工程概算总价投保的,被保险人应该在本保险项下工程造价中包括的各项费用因涨价或升值原因而超出原保险工程造价时,尽快书面通知保险人,保险人据此调整保险金额。如违反第4条规定将视为不足额保险,一旦发生保险责任范围内的损失时,保险人将根据保险单第8条第6款的规定对各种损失按比例赔偿。第8条第6款规定:在发生本保险物质损失项下的损失时,若受损保险财产的分项或总保险金额低于对应的应保险金额,其差额部分视为被保险人自保,保险人则按本保险单明细表中列明的保险额与应保金额比例负责赔偿。

此外,双方在保险合同明细表中约定:保险工程名称为安徽蚌明高速公路第七合同段,保险期限从2003年1月18日至2005年1月17日;保险项目及保险金额第一部分"物质损失"中建筑工程(包括永久和临时及所用材料)保险金额为10332万元,双方对保险费的计算及交纳时间等均作出了约定。同时,双方在备注条款特别约定,未显示数据以标书为准。

合同签订后,中铁四公司履行了给付保险费的义务。2003年7月至8月,因暴雨、洪水造成中铁四公司被保险工程受损。

2003年7月20日,太保蚌埠公司委托广东方中保险公估有限公司(以下简称方中公估公司)对保险损失进行理算。2005年5月21日,在方中公估公司参与下,太保蚌埠公司和中铁四公司达成《协议书》,约定:受损财产中保险标的的受损财产损失金额为248.366184万元,太保蚌埠公司根据保险合同的规定,理算后于2005年6月底前付清。

方中公估公司于2005年6月6日出具公估报告,结论为本次事故的定损金额为248.366184万元,总理算金额为119.551088万元。其中,施工的工程总量中的钢围堰工程、便道工程、驻地建设工程的实际工程量为不足额投保。

同年7月8日,太保蚌埠公司将总理算金额119.551088万元汇转人中铁四公司账户。中铁四公司认为太保蚌埠公司应按248.366184万元全部赔付,经协商未果,向安徽省蚌埠市中级人民法院提起诉讼,请求判令太保蚌埠公司支付保险赔偿款108.815096万元及该款从2005年6月30日起计算的银行利息。

(二)审理要览

本案经过一审、二审和抗诉再审程序,具体判决如下:

1.一审认定

安徽省蚌埠市中级人民法院认为:案涉《保险合同》是分项保险合同,理赔数额并无不当,判决驳回中铁四公司的诉讼请求。

2.二审认定

安徽省高级人民法院认为:案涉《保险合同》不是分项保险合同,应该按照足额保险合同进行理赔。二审判决:①撤销安徽省蚌埠市中级人民法院一审判决;②太保蚌埠公司支付中铁四公司108.815096万元及其利息。

3.抗诉再审认定

本案在最高院再审期间,由最高院依法主持调解,双方当事人经过充分友好协商,就本案的总理算金额和因本案所发生的其他费用自愿达成调解协议。

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