蔡辉强 律师

【基本案情】

德星公司成立于2010年7月20日，为温岭地区奔驰4S店。为标的车浙JFQ755本次小型客车车辆所有人。2010年9月25日，德星公司因业务发展需要，从第三人处购得浙JFQ755奔驰小型客车。2010年10月8日，德星公司为标得车向人保路桥公司投保交强险、车辆损失险、指定专修厂险、不计免赔等险种，保险期限自2010年10月10日至2011年10月9日。2011年9月29日晚，温岭地区出现强雷暴天气，市区路面积水严重，刘湘萍驾驶标的车在温岭市万昌路、曙光路交叉路口附近时发动机进水熄火。2011年9月30日该车由台州之星汽车销售服务有限公司派人拖至该公司检查修理。德星公司并为此花费维理费304662元。后德星公司并多次要求人保路桥公司在车辆损失险范围内赔付车辆修理费，但人保路桥公司拒绝赔付。为此，德星公司于2011年11月21日向台州仲裁委员会申请仲裁。目前该案已经裁决。

【代理词】

尊敬的首席仲裁员、仲裁员：

关于申请人台州德星汽车有限公司（以下称“德星公司”）与被申请人中国人民财产保险股份有限公司台州市路桥支公司（以下称“人保路桥公司”）保险合同纠纷一案，我们作为申请人德星公司代理人，现围绕仲裁庭庭审归纳的争议焦点阐述本方观点，请仲裁庭裁决时予以考虑：

一、关于本案事故是否属于车损险暴雨风险责任范围问题。

通过庭审，人保路桥公司的观点是：“对事故发生事实没有争议，但该事故不属于车损险暴雨风险责任范围，而是属于附加险发动机特别损失险责任范围；德星公司未投保发动机特别损失险，所以保险公司不负责赔偿；即使属于车损险保险责任范围，根据车损险责任免除第七条第十项“发动机进水后导致的发动机损坏”，保险公司也不负责赔偿”。对此，我们认为：“本案事故属于车损险暴雨风险责任范围，不适用发动机特别损失险”。具体理由如下：

1、“暴雨”风险的理解。

气象上，24小时降水量达到50毫米构成“暴雨”。“暴雨”作为一种气象灾害，主要危害在于随之产生的洪涝。因此，我们认为：“暴雨”造成的损失不仅包括大量雨水冲刷、浸泡产生的直接损失，也包括暴雨产生的路面积水导致的损失。根据《最高人民法院关于审理保险合同纠纷案件如何认定暴雨问题的复函》：“鉴于1985年8月24日（即23日的20时至24日的20时）的降雨量达到暴雨标准，如保险标的物是由于该日降雨遭受损失的，应由保险人承担相应的赔偿责任。”我方的理解符合最高院的该司法解释精神。

2、暴雨是本案事故的“近因”。

“近因”并非指时间上或空间上与损失最接近的原因，而是指造成损失的最直接、最有效，起主导性作用或支配性作用的原因。《浙江省高级人民法院关于审理财产保险合同纠纷案件若干问题的指导意见》第18条对此规定：“如保险标的损失系由多种原因造成，保险人以不属保险责任范围为由拒赔的，应以其中持续性地起决定或有效作用的原因是否属保险责任范围内为标准判断保险人是否应承担赔偿责任。”

    本案中保险车辆是驾驶员在行驶途中遭遇暴雨天气，暴雨产生的路面积水导致车辆熄火受损。从车损发生的原因来看，当晚大暴雨发生在先，驾驶员涉水行驶在后。两种情况同时存在时，应当认定致损的最主要原因为近因。从暴雨与涉水行驶的因果关系来看，大暴雨最直观的表现就是路面积水，车辆不得已而涉水行驶。没有大暴雨发生，驾驶员当晚不可能在事发路段涉水行驶，（没有大暴雨当晚事发路段也不可能有积水），也不会发生本案车损。因此，我们认为，本案事故的近因是“暴雨”。对类似情形，上海一中院民六庭庭长宋航在《在私家车保险纠纷案件审理情况新闻通气会上的发言》第四点也持类似观点（当然该观点仅供参考）。

3、驾驶员不存在操作不当。

人保路桥公司认为“电器及控制器”损坏（已定损）是暴雨导致，应予赔付；发动机损坏是驾驶员在车辆熄火后二次启动发动机导致，属于驾驶员操作不当导致的扩大损失，不应赔付。对此，我们认为：首先，人保路桥公司辩称驾驶员存在二次启动发动机导致损失扩大事实，应当对此承担举证责任。其次，人保路桥公司对于暴雨导致部分车损是认可的，但本案车损是基于同一起事故导致的，不能因为对损失的分门别类否定事故原因的同一性。再者，在当天夜晚发生大暴雨的情况下，要求驾驶员中途停止驾驶车辆，要求一个驾龄两年的女性驾驶员（刘湘萍2008年7月4日初次领取驾驶证）对夜间发生暴雨积水的深度和速度是否适合驾驶作出准确判断，显然是不符合情理。

4、附加险不适用本案。

从人保路桥公司保险条款的内容来看，保险责任条款第四条第五项约定了暴雨造成的损失均应赔偿，同时责任免除条款第第七条第十项规定“发动机进水后导致的发动机损坏”不予赔偿。对此，我们认为：发动机作为保险车辆的核心部件，已经纳入人保路桥公司承保标的范围，其损失原则上当然属于保险理赔范围。责任免除条款既然单独剔除发动机损失，恰恰说明“暴雨”损失是包含发动机损失在内，只是基于保险经营利润考虑而以免责条款的形式予以剔除。因此，本案发动机损失属于主险车辆损失险暴雨风险的责任范围，在主险责任未合法免除的情况下，不适用发动机特别损失险这一附加险种。

    综上，我们认为：本案事故属于车损险暴雨风险赔付范围，人保路桥公司应当按约赔付包括发动机损失在内的全部损失。

二、关于人保路桥公司是否履行明确告知义务的问题。

人保路桥公司观点认为：“车损险责任免除条款第七条第十项明确规定“发动机进水后导致的发动机损坏”，保险公司不负责赔偿；基于保险公司已经就该免责条款向投保人顾群俐履行了明确告知义务，保险公司有权援引该条款拒赔；即使未告知，德星公司作为汽车经销商对于上述责任免除条款也是明知。”对此，我们认为：“明确告知义务是保险法明确规定的保险人的法定义务，该义务不因被保险人是汽车经销商而予以免除；人保路桥公司提供的证据不足以证明其已经履行告知义务”。具体理由如下：

（一）人保路桥公司负有就免责条款向德星公司进行明确告知的法定义务。

人保路桥公司认为：“德星公司作为专门销售汽车业务的经销商，且保险车辆连续两年投保车损险，故德星公司对于车损险责任免除条款是明知的，无需告知。”对此，我们认为：

1、免责条款的说明义务是保险法确定的法定义务。《中华人民共和国保险法》第17条规定：“订立保险合同，采用保险人提供的格式条款的，保险人向投保人提供的投保单应当附格式条款，保险人应当向投保人说明合同的内容。对保险合同中免除保险人责任的条款，保险人在订立合同时应当在投保单、保险单或者其他保险凭证上作出足以引起投保人注意的提示，并对该条款的内容以书面或者口头形式向投保人作出明确说明；未作提示或者明确说明的，该条款不产生效力。”该条明确规定保险人对所有投保人均负有明确告知义务，该义务可以采用不同的方式履行，但不因投保人身份的不同而予以免除。

2、德星公司并非保险代理人或者保险经纪人。根据《中华人民共和国保险法》第119条：“保险代理机构、保险经纪人应当具备国务院保险监督管理机构规定的条件，取得保险监督管理机构颁发的经营保险代理业务许可证、保险经纪业务许可证。保险专业代理机构、保险经纪人凭保险监督管理机构颁发的许可证向工商行政管理机关办理登记，领取营业执照。”从经营范围来看，德星公司仅限于奔驰品牌汽车的销售和汽车配件销售，不包括保险代理，这一点不同于其他奔驰4S店，比如台州之星汽车销售服务有限公司经营范围包括奔驰品牌汽车销售、汽车维修和机动车辆保险代理，后者是具有保险经纪人资格的；德星公司也不同于专门的保险代理机构，比如台州市中泰保险代理有限公司的营业范围包括销售保险产品、收取保费、代理查勘和理赔。同时，德星公司也从未收取保险公司保费佣金。因此，德星公司作为普通的汽车销售企业，不属于保险公司无需告知的对象。

3、本案不存在人保路桥公司所主张的连续投保事实，并且连续投保也不能免除告知义务。首先，德星公司成立于2010年7月20日，从行驶证登记内容来看，本保险车辆是2008年4月14日注册登记，德星公司于2010年9月25日将其作为二手车购入并变更登记至公司名下。因此，不存在向人保路桥公司连续投保的事实。其次，即使是连续投保，从各地法院出台的审理保险合同案件司法解释来看，《浙江省高级人民法院关于审理财产保险合同纠纷案件若干问题的指导意见》第11条第一款规定“同一投保人签订二次以上同类保险合同的，保险人的明确说明义务可适当减轻但不得免除”；《江苏省高级人民法院关于审理保险合同纠纷案件若干问题的讨论纪要》第5条也规定“同一投保人签订二次以上同种类保险合同的，保险人的明确说明义务可适当减轻但不免除”；《广东省高级人民法院关于审理保险合同纠纷案件若干问题的指导意见》第9条规定“投保人或被保险人就同一保险标的、同一险种向同一保险人再次或多次投保，且有证据证明保险人曾经履行过明确说明义务，被保险人以本次投保中保险人未履行明确说明义务为由主张保险人责任免除条款无效的，人民法院不予支持”。上述各地规定仅仅认同多次投保可以减轻明确说明义务，但均主张不得免除保险公司的明确告知义务。因此，人保路桥公司主张本案无需对德星公司进行明确说明，缺乏法律依据。

4、从司法判例来看，即便投保人是保险公司亲属，也不得免除保险公司对投保人的明确说明义务。在此，我们提供温岭市人民法院（2009）台温商初字第1129号民事判决书及该案上诉后台州市中级人民法院（2009）浙台商终字第509号民事调解书作为参考。在该案中，被保险人（一审原告、二审被上诉人）妻子系保险公司（一审被告、二审上诉人）保险业务人员，该车投保时是通过被保险人妻子投保。一、二审法院均未支持保险公司关于无需告知而被保险人自知的主张。

（二）人保路桥公司未依法履行明确告知义务。

仲裁过程中，人保路桥公司提供签有案外人“顾群俐”字样的投保单一份，拟证明其在承保时已经就责任免除条款向投保人“顾群俐”进行告知，从而尽到了《保险法》规定的明确告知义务。对此，我们认为：

1、德星公司是人保路桥公司进行明确告知的对象。根据车辆行驶证、保单、保费发票，保险车辆系德星公司所有，保单被保险人系德星公司，保费发票证明系德星公司支付保险费。因此，本案投保人与被保险人均为德星公司，德星公司才是人保路桥公司履行明确告知义务的告知对象。人保路桥公司主张系案外人“顾群俐”为德星公司该保险车辆投保，一方面该主张缺乏证据加以证实，另一方面“顾群俐”与保险标的物不具有保险利益，投保也是无效的。

2、人保路桥公司提供的投保单不足以证明其已经向德星公司履行告知义务，因为：首先，投保单的真实性无法确认，投保单上“顾群俐”签名字样是否案外人“顾群俐”本人所签无法确定，我方在庭审时已经提出真实性异议并申请笔迹鉴定。其次，人保路桥公司提供的投保单并无德星公司盖公章确认，人保路桥公司也未能提供“顾群俐”有权代表德星公司投保的授权文件，因此“顾群俐”无权代表德星公司投保。即使人保路桥公司向“顾群俐”就责任免除条款进行告知，其效力也并不当然及于德星公司。

3、本案保险车辆不存在再次或多次投保同类保险合同情形。本案保险车辆系从2008年4月14日登记注册后，先后由毛跃新、朱仙利、王洲、朱应荣取得物权，并由德星公司于2010年9月25日作为二手车购入变更登记至公司名下。该车系德星公司成立以来第一辆公司自有车辆，也是德星公司第一次向人保路桥公司投保机动车保险。在本次投保之前，德星公司从未向被申请人公司投保过该险种，人保路桥公司也未提供任何证据证明德星公司曾经投保过同类险种，或者曾经向德星公司告知该险种相应的保险条款。

    综上，我们认为，根据《保险法》第17条、《最高人民法院关于适用《中华人民共和国合同法》若干问题的解释（二）》第6条、《浙江省高级人民法院关于审理财产保险合同纠纷案件若干问题的指导意见》第10条之规定，保险公司应当就其已经明确说明义务承担举证责任。基于人保路桥公司未依法提供确凿充分证据证明其已经履行明确告知义务，其援引的责任免除条款对德星公司不发生法律效力。

三、关于本案损失如何赔付问题。

对于人保路桥公司已经定损的电器及控制器部分损失我方没有异议，但是我方认为人保路桥公司整体定损项目不完全，尤其是对于本案车损最为严重的发动机损失未进行定损。因此，人保路桥公司的定损情况不能完全体现德星公司车损全貌，对此我方已经向仲裁庭申请维修费用鉴定，本案损失金额最终应当以鉴定结论为准。

综上所述，我们认为：本案事故属于车损险暴雨风险责任范围，且被申请人人保路桥公司未提供确凿充分的证据证明其就责任免除条款向德星公司并履行了明确告知义务，因此人保路桥公司应当按照车损险予以赔付。

以上意见请仲裁庭裁决时予以考虑。

申请人：台州德星汽车有限公司

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