Ruling:

I. The revision is rejected.

II. The defendant shall bear the costs of the revision proceedings.

Explanation:

Factual and procedural framework of the dispute

1. A. A. was injured in a traffic accident as a passenger on a bicycle driven by B. B. (the defendant in this lawsuit, hereinafter also referred to as the cyclist). According to the plaintiff's allegations, the insured party of the plaintiff, the driver of the motor vehicle C. C., is responsible for the damage caused to her. Therefore, she filed a direct lawsuit based on the general provision of Article 965 of the Obligations Code (hereinafter OZ) or the specific provision of the first paragraph of Article 20 of the Mandatory Traffic Insurance Act (hereinafter ZOZP) against the insurance company (the defendant in this lawsuit).

2. The plaintiff, i.e., the liability insurance company with which the (co-)causer of the traffic accident had concluded motor vehicle insurance, was obliged by law (Article 20 of ZOZP) and based on a final judgment in case no. III P 1631/2012 to pay the injured party compensation in the amount of EUR 52,628 plus statutory default interest, taking into account her contribution to the incurred damage, which the court assessed at 35%.

3. In this lawsuit, the insurance company asserts a partial restitution claim against the defendant as the third party jointly liable with the insured party for the damage that it has paid on behalf of the defendant.

4. The court found that the objective liability of the insurance company's insured party cannot be completely excluded, and that the defendant shares responsibility for the incurred traffic accident. The remaining contributory share in the amount of 65% was divided between the insured party and the cyclist; it was determined that the objective liability of the insurance company's insured party is 30% and the fault liability of the defendant/cyclist towards the injured party is 35%.

Decisions of the lower courts

5. The court of first instance, with the contested decision, dismissed the set-off objection of the defendant (point I of the operative part). It decided that the enforcement order VL 35368/2019 of 23 April 2019 remains valid in the first and third paragraphs, so the defendant is obliged to pay the principal amount of EUR 45,860.17 to the plaintiff with statutory default interest from 18 April 2019 until payment, as well as the enforcement costs in the amount of EUR 48.18 with statutory default interest from 5 May 2019 until payment, all within 15 days (point II of the operative part). In the remaining part, the enforcement order was annulled in the first paragraph regarding the payment of the amount of EUR 2,862.48 with statutory default interest from 18 April 2019 onwards, and the plaintiff's claim in this part was rejected (point III of the operative part). It also ruled that the defendant is obliged to pay the plaintiff litigation costs in the amount of EUR 1,398.39 within 15 days, with statutory default interest from the first day after the expiration of the deadline for voluntary payment until payment (point IV of the operative part).

6. The court of second instance rejected the defendant's appeal and upheld the judgment of the court of first instance.

7. The main reasons for the decisions of the lower courts will be presented in the subsequent explanation, continuously addressing individual problematic issues.

Admitted questions of revision

8. By the decision II DoR 369/2022 of 16 November 2022, the Supreme Court allowed the revision regarding the questions: 1. Whether and on what legal basis are the defendant and the insurance company jointly liable debtors in light of the circumstances of the present case? 2. Whether, according to Article 963 of the Obligations Code, all the insured party's rights against the defendant passed to the insurance company with the payment of compensation from insurance? 3. Whether, in view of the lawsuit no. P 1631/2012, an intervention effect occurred? 4. Whether and on what legal basis has the claim of the insurance company against the defendant in the present case become time-barred?
Summary of arguments in the revision proceedings

9. The defendant requests that the Supreme Court grant the revision and amend or annul the contested decision. It opposes the position that, based on Article 963 of the OZ, all the insured party's rights against the party responsible for the damage transfer to the plaintiff. It believes that this provision refers to the internal relationship between the insurance company and its insured party, which is not the case in the specific situation, and therefore the court incorrectly applied substantive law. Even according to legal theory (Obligations Code with commentary), the insurance company enters into the rights of its insured party against the liable party only by paying insurance benefits. In the present case, there are no reasons or factual basis to consider the rights of the insured party against the defendant. There is no legal basis for the proposition that the defendant and the insured party of the plaintiff, the driver of the car who acted independently of the defendant, are jointly liable debtors. Article 963 of the OZ cannot serve as a basis for rejecting the objection of prescription – the prescription period does not start at the moment when the plaintiff paid compensation to the injured party. The court should have applied the provision of the sixth paragraph of Article 357 of the OZ since it concerns the prescription of the insurance company's claim against the defendant as a third party responsible for the occurrence of the insured event – the prescription period begins when the prescription period of the potential claim of the plaintiff's insured party (the motor vehicle driver who acted independently of the defendant) against the defendant starts running. In this regard, reference is made to the decisions VSL I Cpg 111/2018 and III Ips 68/2005. It emphasizes that there are several decisions of higher courts regarding the issue of prescription and the legal basis for a subrogation claim, namely the judgments VSK Cpg 13/2017, VSM I Cp 589/2018, and VSM I Cpg 176/2019 – all of which state that the prescription period for the insurance company starts running when the prescription period against the party responsible for the occurrence of the insured event begins, and that subrogation occurs when the insurance company asserts a claim that the insured party of the plaintiff would have had against the tortfeasor. However, in the present case, the insured party is not the injured party. If the plaintiff believed that there was joint liability in this case, she should have appealed against the judgment P 1631/2012 of the District Court in Ljubljana of 20 March 2013 because it does not establish joint liability in the operative part, only in the explanation. The course of the mentioned lawsuit did not interrupt the prescription of any claim against the defendant. The appellate court justified its decision by referring to the decision VSL I Cpg 528/2015 and Article 352 of the OZ and took the position that it was a subrogation claim. The aforementioned decision relates to the relationship between the insured party and the insurance company, i.e., the internal relationship, and it actually concerns subrogation under Article 963 of the OZ, which is not the case in the present situation. Neither the court of first instance nor the appellate court provide relevant case law in which the same legal position exists as in the present case. It believes that this lawsuit does not concern a subrogation claim, therefore there is no intervention effect, and there has been no transfer of the insured party's rights to the insurance company. The objection that the defendant is not a jointly liable debtor was rejected by the court of first instance without substantive reasoning, and the appellate court relied on the provision of Article 154 of the OZ, which applies to motor vehicle drivers. Neither of the lower courts provided a convincing legal basis for the conclusions in the contested judgments, and their explanations are therefore deficient and cannot be examined, which constitutes a substantial violation of procedural provisions. There is no joint liability because the defendant and the insured party did not act together, and the defendant was on a bicycle while the insured party was driving a motor vehicle. Therefore, it is not possible to speak of an intervention effect based on this. It is also not subrogation because the plaintiff is not claiming a payment made on behalf of an insured party who lost insurance rights in any case. The prescription of the plaintiff's claim against the defendant started running at the moment when the prescription of the claim of the plaintiff's insured party against the defendant (against whom the plaintiff's insured party never asserted any claim) started running, and it was not interrupted because there is no joint liability on the part of the defendant. The judgment P 1631/2012 of 20 March 2013 only imposes payment on the insurance company, although it differentiates the weight of liability or contributions in the explanation and even mentions joint liability. Since the plaintiff did not appeal against the mentioned judgment, she cannot successfully assert her claim in this lawsuit in such a manner and on such a legal basis. The contested judgments are based on an erroneous application of substantive law, and the decision of the court of first instance is not adequately reasoned regarding the issue of joint liability in accordance with the provisions of the Code of Civil Procedure (ZPP) and cannot be examined, which constitutes a substantial violation of procedural provisions.

10. The plaintiff did not respond to the revision.

Supreme Court's assessment

11. The revision is not justified.

12. The Supreme Court will only address the revision arguments that fall within the scope of the permitted questions (Article 371 of the Code of Civil Procedure).

On joint liability of the causers of a traffic accident

13. To answer the permitted question, we must start from the position of the insured party - the motor vehicle owner. In relation to other non-motorized participants in traffic, the motor vehicle is a dangerous object. The liability of its owner is objective, but it can be partially relieved based on Article 153 of the Obligations Code (OZ), either due to the contribution of the injured party (paragraph 3 of Article 153 of the OZ) or the actions of a third party acting outside the owner's sphere (paragraph 4 of Article 153 of the OZ). The fourth paragraph of Article 153 of the OZ states: "If someone else contributed to the occurrence of the damage, that person shall be jointly liable to the injured party together with the owner of the object." In the case of concurrent actions of the owner of the dangerous object and a third party, the law stipulates that both parties are jointly liable to the injured party.

14. The revision rightly points out that the higher court mistakenly referred to the fourth paragraph of Article 154 of the OZ in justifying the joint liability of the (co)causers of the traffic accident. This provision actually envisages joint liability of two motor vehicle owners towards the injured party, which does not fit the specific case where the liabilities of the motor vehicle driver and the cyclist are in competition. However, this (apparently unintentional) legal slip does not mean that there is no joint liability between them; its anchor is, as already mentioned, in the fourth paragraph of Article 153 of the OZ.

15. The answer to the first question is therefore affirmative: the defendant and the insurance company (upon entering the insured party's rights, which will be further explained) are jointly liable debtors to the injured party based on the fourth paragraph of Article 153 of the OZ.

On subrogation and the nature of the insurance company's claim

16. By paying full compensation to the injured party instead of the insured party, the insurance company has stepped into all the insured party's rights against the defendant, with whom they are jointly liable for damages. This is a typical case of subrogation based on the special provision on subrogation in insurance contracts in Article 963 of the OZ. It stipulates that with the payment of insurance compensation, all the insured party's rights against anyone responsible for the damage automatically transfer to the insurance company. It is not disputed between the parties that the plaintiff paid the damages to the injured party based on the insurance contract but in accordance with the court judgment.

17. According to the Supreme Court's assessment, Article 963 of the OZ could not fit the factual situation more accurately. The wording of the law does not support the respondent's claim that the legal situation is reserved exclusively for cases involving the internal relationship between the insurance company and its insured party, i.e., when the insurance company (the injured party) pays insurance premiums/compensation to its own insured party as the injured party, when both roles merge in the same person. The wording of the law, which states "... against anyone responsible for the damage," clearly indicates that the provision is not limited to the internal relationship.

18. As the liability insurer of the insured party, the plaintiff paid compensation to the injured party. In relation to the defendant, who is jointly liable with the insured party for the damages, the insurance company, by paying the full compensation, stepped into the rights of its insured party (regardless of the fact that it paid compensation to the injured party and not to its insured party). Therefore, based on the first paragraph of Article 188 of the OZ, the insurance company (as the party that fulfilled the joint obligation) can claim reimbursement from the other jointly liable debtor, which exceeds the insured party's liability. The insured party's recourse claim against the defendant, up to the amount of the paid insurance compensation, has automatically passed to the insurance company ex lege, even though the injured party is not simultaneously the insured party or did not receive the amount (compensation/insurance) from their insurance company. By fulfilling the entire joint obligation, the fulfiller/insurance company acquired the (previously dormant) recourse claim of the insured party (which awakened due to the payment of compensation to the injured party and thus the fulfillment of the joint obligation) in relation to the other jointly liable debtor - the cyclist.

19. It is evident, therefore, that based on Article 963 of the OZ, all the insured party's rights against the defendant have passed to the insurance company with the payment of insurance compensation.

On the prescription of the claim

20. The court of first instance rejected the objection of prescription. Its decision was based on the sixth paragraph of Article 357 of the OZ. After establishing that all the insured party's rights against the person responsible for the insurance event were transferred to the plaintiff by paying compensation to the injured party (first paragraph of Article 963 of the OZ), it concluded that the prescription period for the plaintiff started running when the prescription period against the responsible party for the occurrence of the insurance event began and ended within the same period (sixth paragraph of Article 357 of the OZ). Since the injured party's claim was a tort claim, it expires within three years from the moment the injured party became aware of the damage and the responsible party, according to the first paragraph of Article 352 of the OZ. The amount of damages was disputed in the previous lawsuit and was only known with the finality of the judgment. The notification of the lawsuit on May 25, 2014, represents active conduct of the plaintiff as a creditor before the court, which, in terms of Article 365 of the OZ, interrupts the prescription period in relation to the defendant. Therefore, the three-year prescription period started running again on May 26, 2014. The three-year prescription period started again with the payment of compensation from the plaintiff to the injured party on May 3, 2016, and the lawsuit was filed on April 18, 2019, before the expiration of the three-year prescription period according to the sixth paragraph of Article 357 of the OZ.

21. The court of second instance found that the plaintiff, as the liability insurer of the insured party, paid compensation to the injured party based on the judgment of the District Court in Ljubljana P 1631/2012. It took the view that in such a case, the start of the prescription period is tied to the moment when the insurance company acquired the right to claim reimbursement. This moment occurred only with the payment of compensation to the injured party on May 3, 2016. Since the lawsuit in this case was filed on April 18, 2019, the prescription period according to Article 352 of the OZ had not yet expired at the time of filing the lawsuit. The enforcement of the recourse claim is possible only after payment of what is being claimed for return or reimbursement. The reason of the court of first instance, that the prescription started running from the date of payment of compensation to the injured party on May 3, 2016, is correct. It emphasized that the other reasons of the court of first instance regarding the question of interruption of prescription are unnecessary. The appellant's arguments that the prescription started running from the receipt of the judgment in case P 1631/2012 and that the court of first instance materially misapplied the provision of the sixth paragraph of Article 357 of the OZ were assessed as unfounded.

22. The sixth paragraph of Article 357 of the OZ, on which the court of first instance based its decision, while the court of second instance excluded the existence of the ground for appeal of incorrect application of substantive law in this regard, stipulates that the prescription of the claim that the insurance company has against a third party responsible for the occurrence of the insurance event starts running when the prescription of the insured party's claim against that party starts running and also expires within the same period. It thus determines both variables of prescription, namely the commencement of the prescription period and its duration, as applicable to its insured party.

23. The Supreme Court holds that in assessing the question of which prescription regime the recourse claim would be subject to, the nature of this reimbursement claim of the insurance company, which is, in reality, the insured party's claim against the cyclist and has passed to the insurance company, must be kept in mind. The circumstances of the specific case do not provide a basis for the application of the sixth paragraph of Article 357 of the OZ, nor the further application of Article 352 of the OZ, which regulates the prescription of tort claims. The provision of the sixth paragraph of Article 357 of the OZ regulates a situation arising from an internal insurance relationship: the insurance company pays insurance compensation to its insured party, who is also the injured party, and then asserts a recourse claim against the tortfeasor, as the injured party's tort claim against the tortfeasor passed to the insurance company through subrogation. Only in such a case, the prescription applicable to the recourse claim would be what would apply to the tort claim, which would dictate the application of Article 352 of the OZ. In the present case, the situation is fundamentally different: the insurance company (insured party) paid compensation to the injured party, who is not their insured party. Therefore, the decisions regarding the objection of prescription cannot be based on the mentioned provisions. Conversely, the lower courts' standpoint is thus materially incorrect. Since there is no specific regulation regarding the prescription of this type of liability insurer's claims against the party responsible for the insurance event, the Supreme Court deems it necessary to base the decision on the general rules regarding prescription. Legal theory also holds that there is no specific time limit or specific commencement of prescription for such cases, even though they involve claims of the insurance company.

24. The cases referred to by the defendant in the appeal (Supreme Court judgment III Ips 68/2005, Higher Court judgment I Cpg 111/2018, and Supreme Court judgment Cpg 13/2017) are not comparable. Their common denominator is that they deal with a (typical) situation regulated by the legislator in the sixth paragraph of Article 357 of the OZ (or previously in the sixth paragraph of Article 380 of the Law of Obligations Act; hereinafter ZOR): the recourse claim of the insurance company, which initially paid insurance premiums/compensation to its insured party, who is also the injured party, and then seeks reimbursement from the third party liable for the damages or their insurance company. In these cases, the insurance company does not seek reimbursement from the third parties who are jointly liable with the insured parties to the injured parties, as in the present case. In this respect, the comparable case is Higher Court ruling I Cpg 528/2015 (although the appellant thinks otherwise), in which the court takes the position that the provision of the sixth paragraph of Article 357 of the OZ is not applicable to such situations.

25. Since in the present case the insurance company stepped into the position of the insured party as one of the jointly liable debtors in an internal recourse relationship and there is no specific provision regarding the prescription of recourse claims, the length of the prescription period for its recourse claim must be determined by applying the provision of the first paragraph of Article 188 of the OZ in conjunction with Article 346 of the OZ, which governs prescription within the general five-year period. According to the Supreme Court's assessment, there is no basis for applying the specific three-year prescription period set out in the third paragraph of Article 357 of the OZ, as the recourse claim of the insurance company against a third party (and not the insured party) is not a claim of the insurance company arising from an insurance contract.

26. The Supreme Court ultimately agrees with the commencement of the prescription period, as determined by the lower courts, which is the moment when the insurance company paid compensation to the injured party. It is only then that its derived (and dormant original insured party's) recourse claim arises, or only then does the insurance company acquire the right to claim reimbursement from the defendant (first paragraph of Article 336 of the OZ). This moment occurs only with the payment of compensation to the injured party, and not before. The assertion of a reimbursement claim is conceptually possible only after the payment of what is sought to be returned or reimbursed.

27. Considering that the prescription period began on May 3, 2016, with the payment, and the lawsuit was filed on April 18, 2019, despite the partially incorrect application of substantive law, the decisions of the first and second instance courts that the recourse claim of the insurance company had not prescribed are correct.

28. The answer to the fourth question, therefore, is: the claim of the insurance company against the defendant has not prescribed.

Regarding the intervention effect

29. The defendant in the appeal opposes the occurrence of the intervention effect only on the grounds that there is no joint liability between the insured party and the defendant (and therefore) there is no recourse claim. The appellant thus challenges only the substantive aspect, i.e., the existence of a legal interest for collateral intervention, which, only if the other conditions are met, would justify the intervention effect. However, the procedural aspect, such as the lack of the opportunity to participate at the appellate level in the first lawsuit or the scope of the intervention effect (with a specific objection in this lawsuit that would have led to a different decision in the first lawsuit), is not problematized. Since, as explained earlier, there is a joint obligation between the insured party and the defendant, which is a condition for the insurance company to assert a recourse claim, the defendant cannot exclude the direct effect of the judgment rendered in the first lawsuit on their position. The answer to the third question is therefore affirmative. The intervention effect covers the following circumstances: the injured party's contribution to the occurrence of the damages in the amount of 35%, and the remaining part (65%) of the damages arising from the objective liability of the insured party, and the amount of appropriate compensation for material and non-material damages. However, it does not extend to the question of the internal recourse relationship between the plaintiff and the defendant or the allocation of the 65% share between the defendant and the insured party. The determination of the defendant's contribution to the occurrence of the damages was the subject of the evidentiary procedure and the assessment of the courts in this lawsuit.
Decision on the appeal

30.The appeal is unfounded; therefore, the Supreme Court dismissed it (Article 378 of the ZPP).

Costs of the appellate proceedings

31. The decision on the appellate costs is based on the first paragraph of Article 165 of the ZPP. Since the appellant was unsuccessful with the appeal, pursuant to the first paragraph of Article 154 of the ZPP, they shall bear their own costs.
Composition of the panel and voting

32. The Supreme Court deliberated in the panel indicated at the beginning of the decision. The decision was unanimous (seventh paragraph of Article 324 of the ZPP).

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1. The fourth paragraph of Article 154 of the OZ states: "If two motor vehicle owners are jointly or partially liable for the damages suffered by others, their liability is joint and several."
2. The first paragraph of Article 188 of the OZ reads: "A joint and several debtor who pays more than their share of the damages may demand reimbursement from each other debtor for the amount paid on their behalf."
3. V. Kranjec in: M. Juhart and N. Plavšak (eds.), Obligacijski zakonik s komentarjem, splošni del, 2. knjiga, GV Založba, Ljubljana 2003, p. 493.
4. The situation in which an insurance company demands reimbursement of the paid insurance benefit from the insured party due to a breach of the insurance contract - loss of insurance rights were addressed by the Supreme Court in the case II Ips 404/2009 dated September 23, 2010, and the Court took the position that the prescription period from the third paragraph of Article 357 of the OZ applies. The same position was adopted by the legal doctrine; V. Kranjec in: M. Juhart and N. Plavšak (eds.), Obligacijski zakonik s komentarjem, splošni del, 2. knjiga, GV Založba, Ljubljana 2003, p. 492.
5. The first paragraph of Article 336 of the OZ states: "Prescription begins on the first day after the day when the creditor had the right to demand performance of the obligation, unless the law provides otherwise for specific cases."
6. See judgment of the Supreme Court of the Republic of Slovenia, case II Ips 404/2009 dated September 23, 2010, point 7 of the reasoning. Regarding the commencement of the prescription period, the situation in which an insurance company asserts a recourse claim against the insured party (due to the loss of insurance rights) is equated with the present situation in which the insurance company asserts a recourse claim against a third party jointly liable with the insured party.

Reference:

RS - Constitution, Laws, Agreements, Contracts
Obligacijski zakonik (2001) - OZ - Article 153, 153/4, 188, 188/1, 336, 336/1, 346, 352, 352/1, 357, 357/3, 357/6, 963

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