Kuwait Court of Cassation principle number 305

Summary: - Recourse by the insurer against the person responsible for the damage. Its condition. That he not be a relative or relative by marriage of the insured, or that the latter be legally responsible for him. The prohibition provided by Article 801 of the Civil Code. A matter of public policy. Consequence: its application to statutory subrogation. Reason. Preventing the loss of the benefit of insurance for the insured. - Establishment that the driver of the insured vehicle is the son of its owner, the insured, that he lives with him in one household, and that his father was legally responsible for his acts at the time of the accident because of his young age. Consequence. The conditions for applying Article 801 of the Civil Code are satisfied, and the insurance company is precluded from recourse against her for the compensation it paid. Rule: It is established that, if the person responsible for the damage is a relative or relative by marriage of the insured who lives with him in one household, or a person for whose acts the insured is legally responsible, recourse against him is prohibited, because the prohibition provided by Article 801 of the Civil Code in this case is a general rule relating to public policy—as expressly stated in the Explanatory Memorandum. Accordingly, it must apply to statutory subrogation in the present case, because the underlying reason is the same: preventing the loss of the benefit of insurance for the insured. However, application of this rule requires the person invoking it to establish the existence of the two conditions prohibiting subrogation, namely kinship or affinity and being among those who live with him in one household, or being a person for whose acts the insured is legally responsible. That being so, and as the appellants invoked the application of Article 801 of the Civil Code, since the documents establish that the second appellant is the son of the first appellant, the owner of the vehicle insured with the respondent, and that he lives with him in one household, and the latter was legally responsible for his acts at the time of the accident because of his young age, the conditions for applying the said Article are therefore satisfied in the documents. The respondent is precluded from recourse against the appellants for the compensation it paid to the injured party. The action thus has been brought without a basis in law and merits dismissal. Since the judgment appealed against departed from this view and ordered the appellants to pay the adjudged amount, it contravened the law and erred in its application, requiring its reversal and a judgment dismissing the action.