意外傷害保險關於「意外」之認定

Abstract

保險已成為現今社會一重要經濟制度，與證券及銀行共同為金融支柱。而保險已成為每個人生活的必需品，扶助很多遭遇突然事故或災變的家庭度過難關。教科書或文章已經說了很多保險是自助人助的論述。國人從早期對保險的排斥，到現在台灣保險覆蓋率世界第一，每人平均擁有約三張保單，即可證明國人對保險的接受度已經提高。 但依財團法人消費金融評議中心統計，前述金融三大支柱中，以保險的爭議最多。在2015年，產、壽險業申訴及評議案件占整體均為20%及60%以上，而銀行約在10%上下。究其原因，乃保險之經營技術較為特殊，且其為無形「產品」消費者若欲感受保險的存在，幾乎是在理賠階段。而理賠終究有不符合條件之情況發生；再者，消費者與保險公司理賠認定認知差距亦是爭議所在；最後，(保險)消費者主觀意念認為購買保險就是為了發生事故時能得到理賠，故更加深與保險公司間之對立。尤有甚者，以詐欺手段取得保險金，在申請與審理間，保險公司付出相當大的成本查證，但同時也因處理費時而造成客戶不滿(關於『保險詐欺』壽險理賠先進及前輩已有多篇文章論述，且非本文主題，故不予贅述，或容不才爾後以專文研究)。 本人在壽險業界任理賠人十有七年，有感理賠爭議來自三大類：一、壽險：以違反告知義務被保險公司解除契約之爭議為大宗；二、健康保險：此又可分為二類(一)手術爭議及(二)是否有住院必要之爭議。近年則以(二)為大宗；三、傷害險：在業界，傷害險的爭議件數並非最多，但所造成的影響卻為最大。本文以傷害險為研究主題，係以所造成的影響最大為發想；另外，保險法第一三一條所規定之文義是否足以弭平傷害險爭議(尤其在經過多次條文修正後)。從諸多案件中可以發現，一般人對保險法第一三一條條文「I傷害保險人於被保險人遭受意外傷害及其所致殘廢或死亡時，負給付保險金額之責。II前項意外傷害，指非由疾病引起之外來突發事故所致者。」常有誤解，將之解釋為「非疾病即屬意外」顯然解讀錯誤！蓋若「非疾病即屬意外」此一論點成立，則按邏輯將無法解釋「老邁」身故此一自然現象(雖然最高法院民事判決一○三年度台上字第六一二號有稱『按意外傷害保險係承保意外傷害所致之損失，凡傷害或死亡之原因，非罹患疾病、細菌感染、器官老化衰竭等身體內部因素所致，而係外來、偶然等不可預見之事故所生，除保險契約另有特約不保之事項外，均為承保範圍內之意外事故。)按判定是否符合保險上之意外傷害，不能僅僅以「非疾病即屬意外」一語帶過，因為它還必須符合突發、偶然、不可預料等要件。 另外，當被保險人受到意外事故而致傷、殘或死亡時，而傷害結果摻有疾病因素「貢獻」其中時；或承保事故與非承保事故互有因果關係時，該次傷害結果得否認定為傷害保險之承保事故，則必須運用「近因原則」加以判斷。 保險人因承保事故發生而有給付責任，為因契約而成立「債」之關係。但事故是否為承保範圍，則為關鍵所在。於壽險，生存、死亡或殘廢理賠，認定較為簡單；但於傷害保險，被保險人是否因為條款約定之「意外傷害事故」致成傷害，因為事過境遷，事實很難認定。於法院繫屬時，被保險人(受益人)與保險公司間之攻防，即與舉證責任息息相關。若有一方舉證不能，即有受訴訟不利益風險。

Insurance is now a major part of the economy system. It plays an important role like stocks and bonds, or banks in the financial industry and it is now essential in our everyday life. Insurance helps the families that experienced accidents or tragedies overcome the difficulties. Lots of textbooks and articles have let us know that the insurance is the statement of cooperation. People in Taiwan had been rejecting the insurance in early days; however, until now, the usage rate of insurance in Taiwan has become the top class in the whole world with the average three policies per person, which can prove that insurance is more acceptable nowadays. Nevertheless, according to the research of Financial Ombudsman Institution, among the three important roles in the financial industry, Insurance, Stocks and Bonds, and Banks, Insurance is the most controversial. In 2015, the percentage of appeals and arbitration of Non-life and life insurance industry are over 20% and 60%. However, the banks have only around 10%. To explain this kind of circumstance, it is because that the value proposition of insurance industry is more special than others. The products of the insurance, the policies, are mostly intangible, which that the customers cannot recognize the product easily and only when the claims have been settled, the customers can reach the product directly. But, the claims are not always settled as long as the conditions are not met. Moreover, the recognition of the claims are not the same from different points of view and that is the controversial point. Lastly, the customers regard the policies as the guarantees of the claims, which mean that they think once they bought the policies, the claims will be settled anyway as long as the accidents happen. Therefore, this thought strengthens the opposition of the customers to the companies. Furthermore, some people try to get the settlement using fraudulent methods. Such kind of activities costs the companies a lot to verify during the phase of application and processing. At the same time, due to the investigation, it also brings the dissatisfaction of the customers. I have been working in the department of claim of life insurance for 17 years and I have learnt that the controversies are basically from three categories, Life Insurance, Health Insurance, and Injury Insurance. For Life Insurance, most of the conflicts are from the obligation of disclose of the customers, and if the obligation is not fulfilled, the company will terminate the contract in the end. For Health Insurance, it can be categorized into two, one is surgery conflicts and the essentiality of being hospitalized and most of them are the second one. For the last, Injury Insurance, it doesn’t have the most cases of the conflicts, but it is the most influential. This paper focuses on Injury Insurance due to the characteristics of most influential and whether the definition of Article 131(A personal accident insurer is obligated to pay the insured amount when the insured suffers injury by accident, or becomes disabled or dies on account of such injury. The term "injury by accident" as used in the preceding paragraph refers to physical harm caused by unforeseen external events other than illness.), Insurance Act, can eliminate the conflicts of Injury Insurance or not. From lots of cases of Injury Insurance, normal people are not clear about the Article and misunderstand the contents as either disease or accidents. If the statement is true, then the natural death cannot be explained as an accident. The recognition of an accident cannot solely by such a brief definition because it has to meet the conditions of “Sudden”, “Accidental”, and “Unpredictable”. In addition, when the insured is injured, disabled, or dead caused by accidents and the outcome of the injury contains the elements of disease, or when the insured peril and the non-insured peril have causal relationships, whether the outcome can be recognized as the insured peril or not depends on the “Proximate Cause”. The insurer has the obligation to pay once the insured peril occur because of the contract and form the relationship of debt. However, the key of the issue is whether the accident is in the scope of the insured peril. In Life Insurance, the recognition of survival, death, or disability is simpler compared to Injury Insurance which contains more uncertain elements. On the other hand, in Injury Insurance, whether the insured is injured because of the insured peril or not is not easy to verify due to the fact is not the same as it happened. During the suit, the burden of proof has a great relationship with the defendant and the plaintiff. As long as one cannot provide any proof, he has the risks of losing the suit.