Accident replacement tariff
Accident replacement tariff is a slang term for the tariff that a car rental company charges for a rental car after a traffic accident . In the event of an accident caused by third parties, the costs are borne by the opposing liability insurance company as compensation . This tariff does not have any discount and is usually significantly (between 100% and 465%) above the rental prices of the instant and pre-reservation business. The reason given by the car rental companies is that renting an accident replacement vehicle is associated with additional work for them. However, the case law largely does not recognize the costs of the accident replacement tariff as necessary. Therefore, these cannot be fully demanded from the other party involved in the accident / his insurance company.
Economic situation
There are three major segments in the car rental market:
- the corporate wholesale business
- the leisure and tourism business
- the accident replacement car business
In the opinion of the car rental company, the necessary service when renting a replacement vehicle after an accident is considerably more expensive than with other types of rental. In particular, it is stated that the dates for the rental of a replacement vehicle cannot be planned in advance for the accident victim and therefore also for the car rental company - which has a negative effect on the occupancy rate in the accident replacement business.
As further increasing cost factors are
- Personnel costs
- Delivery and collection costs
- Regulation delays of up to 6 months
- Waiver of a deposit
- special holding costs
- special opening times
called.
Critics of the accident replacement tariff oppose that the landlord can (and usually does) bill most of the above-mentioned additional expenses separately.
While the insured as a whole and the insurance industry are interested in the lowest possible replacement sum, it is crucial for the individual that the costs incurred are covered in full. It is not necessarily in the interest of the injured party to try to find the cheapest possible rental car tariff and, under certain circumstances, to invest time and effort. Therefore, there is a risk that the injured party will rent at the accident replacement rate even if he were to receive a comparable service at a lower price by obtaining alternative offers. On the other hand, the injuring party (or his insurance company) has an interest in obliging the injured party to compare prices as comprehensively as possible and thus reduce the damage through their own work.
These conflicting interests mean that since around 2003/2004 the insurers have increasingly turned to rejecting (full) assumption of costs for (excessively) high rental car bills. Attempts to reach an agreement between the insurance industry and car rental companies suggest a future accident replacement tariff in the range of 120% to 125% of the normal tariff.
Since the injured party concludes the rental contract, the insurance company, which ultimately has to pay the price, cannot influence the price. The injured party who would have this influence is not interested in the price because it is paid by "the insurance company". The price can therefore be set by the car rental companies without market opposition. Here the principles of the market economy fail ; this means that the high accident replacement tariff is at least partly not justifiable from an economic point of view.
Legal situation
Since the accident compensation tariff is usually significantly higher than the normal rental price, the question arises whether the injured party has to reimburse it in full, or whether the injured party, by not asking for the cheapest rate, is partly responsible for the amount of the billed damage .
The case law is not uniform with regard to the tariffs, also with regard to the obligation to inform about the accident replacement and flat rate tariffs. The agreement of the tariff between the car rental company and the tenant is legally unproblematic, as it falls under the freedom of contract except in the case of usury (whose prerequisites for accident replacement tariffs are usually not met) .
The only disputed issue is the amount to be reimbursed by the opposing insurance company. The Federal Court has, starting changed with the judgment of 12 October 2004, its previous case law (mainly from 1996) gradually. So far, the accident replacement tariff aspect has only been examined under the aspect of the duty to mitigate damage.
The new starting point is the requirement according to § 249 BGB . According to the judgment of October 12, 2004, the accident replacement tariff is only reimbursable if the higher price compared to the "normal tariff" is justified due to the special features of the tariff (e.g. pre-financing, risk of default). The accident replacement tariff is to be reimbursed if the additional claim compared to the normal tariff is based on services that can be traced back to the particular accident situation (see above). In the meantime, the BGH has issued a decided position on various individual questions / additional services:
The injured party can be expected to receive pre-financing under certain circumstances, but this depends largely on the circumstances of the individual case. So is z. B. sometimes the presentation of a credit card as a deposit is sufficient. If he does not do this, although this is reasonable, he is violating the duty to minimize damage.
It was also found that the injured party does not violate his duty to mitigate damage by simply claiming the accident replacement tariff if he cannot easily assess the differences to the "normal tariff" . The obligation to pay compensation also exists if the more favorable normal rate is not known and recognizable to the injured party. Also, from the fact that the landlord only offered one tariff, it cannot be concluded that no more favorable tariff was available.
The car rental company is not authorized to provide legal advice . So has z. For example, the LG Berlin in May 2006 saw the assumption of the regulation with the insurance as inadmissible legal advice. The assertion of the claim for compensation by the car rental company in the context of an assignment does not constitute inadmissible legal advice according to the BGH if it primarily serves to secure the assigned claim.
When a car hire makes no distinction between accident replacement tariff and normal rate, with its standard rate but significantly higher than the normal post Schwacke list Zip-code area rental, this is also not fully recoverable.
If the assertion of the chosen tariff is not possible due to the requirements mentioned, the judge can also estimate the required amount by means of a flat-rate surcharge or by means of the loss of use ( Section 287 ZPO). These costs must then be reimbursed by the injuring party or the insurance company.
If the tariff is significantly higher than the local tariffs, the car rental company is obliged to point out the risk that the opposing insurance company does not fully cover the costs.
However, the BGH has increasingly started to restrict the obligation to replace the accident replacement tariff. In particular, the BGH requires proof that the higher accident replacement tariff can be justified economically. It therefore depends on the question of whether "a sensible and economically thinking injured party would have been required to demand the cheaper tariff under the aspect of economic efficiency". If he does not do this, although he can see that the tariff is clearly and unjustifiably excessive, he is violating his duty to minimize damage. This especially affects those injured parties who do not ask about the price at all or who accept a clearly excessive price because it is not they who have to pay it but someone else.
In its decision of June 28, 2006, the BGH also made the requirement that the car rental company must inform the accident victim "clearly and unambiguously" that the tariff is significantly higher than the normal tariff and that there is a risk that the insurance company may not will assume the full tariff. If the information is not provided, the car rental company cannot demand the difference from the injured party if the insurance company then does not cover the full tariff.
Relevant judgments of the BGH: The obligation to replace the accident replacement tariff was confirmed in several decisions of the Federal Court of Justice:
- Judgment of October 12, 2004 (source: [1] )
- Judgment of October 26, 2004 (source: [2] )
- Judgment of February 15, 2005 (source: [3] )
- Judgment of February 15, 2005 (source: [4] )
- Judgment of April 19, 2005 (source: [5] )
- Judgment of July 5, 2005 (source: [6] )
- Judgment of September 20, 2005 (source: [7] )
- Judgment of October 25, 2005 (source: [8] )
- Judgment of February 14, 2006 (Source: PDF )
- Judgment of February 14, 2006 (Source: PDF )
- Judgment of May 9, 2006 (Source: PDF , = NJW 2006, 2106)
- Judgment of June 13, 2006 (source: [9] )
- Judgment of June 28, 2006 (Source: PDF )
Individual evidence
- ^ BGH judgment VI ZR 105/06 of February 13, 2007
- ↑ Palandt- Heinrichs, 65th edition. § 249 marginal number. 31
- ^ Judgment of June 13, 2006 VI ZR 161/05
- ^ BGH judgment VI ZR 105/06 of February 13, 2007
- ↑ BGH of June 28, 2006
literature
- Dirk Buller, in: Neue Juristische Wochenschrift Spezial, issue 06/2006 p. 255 ff.
- Gerhard Wagner, Accident Replacement Tariffs , in: Neue Juristische Wochenschrift 2006 p. 2289 ff. (Issue 32).
- Holger Zinn, The status of rental car prices in Germany in summer 2007 , Norderstedt 2008.
- Holger Zinn, The surveys of Schwacke and Fraunhofer: A comparison of the survey methods , in: Zinn, Holger; F. Roland A. Richter (Ed.): Current focal points of the regulation of motor vehicle liability claims, Wiesbaden colloquium on questions of insurance law and claims regulation at the RheinMain University, conference volume 2010, Norderstedt 2011, pp. 9–44.
