VW judgment
In the so-called VW judgment , judgment of October 20, 2009, Az .: VI ZR 53/09, the German Federal Court of Justice overturned a decision by the Würzburg Regional Court and commented on the conditions according to which the hourly rate of a contract workshop also applies to the damage calculation can be used for fictitious claims accounting. The so-called VW judgment of the BGH is to be seen as a further development of the Porsche judgment . For its part, it was continued by the Federal Court of Justice with the BMW judgment .
The case
A 9½ year old VW Golf with a mileage of over 190,000 km was damaged in a traffic accident . The person who caused the accident was solely liable for the damage. The injured party took out the liability insurance of the person who caused the accident. An expert determined the damage to the vehicle to be replaced in an expert report. The insurer demanded that the repair should be carried out in a cheap, independent bodywork workshop and agreed to reimburse the costs in the appropriate amount. The injured party, on the other hand, wanted to have the Golf repaired in a branded VW specialist workshop, although this was more expensive. The insurer did not want to bear this cost difference. The injured party sued against this.
The judgment
In accordance with the decision of the Porsche ruling, the injured party can charge the opposing insurance company with fictitious repair costs that correspond to the costs of repairs in a brand-specific workshop. Even then, the injured party still complies with the existing requirement of damage reduction. However, it was not clarified whether, with regard to the hourly rates charged, those of the contract workshop may also be used or whether the rates of an "equivalent" workshop should be used if such a workshop could be easily reached for the repair.
The reasonableness of the injured party to be referred to a more cost-effective repair in a non-branded specialist workshop assumes that the repair is technically equivalent. If the injuring party wants to refer the injured party to a cheaper repair option in an effortlessly and easily accessible "free specialist workshop", the injuring party must explain and, if necessary, prove that a repair in this workshop corresponds to the quality standard of a repair in a branded specialist workshop. The standard (market) prices of the workshops are to be used as a basis. This means in particular that the injured party does not have to be referred to the special conditions of the contracted workshops of the injured party 's liability insurer as part of his duty to reduce damage . Otherwise the right to replace, which gives him the possibility of repairing the damage himself, would be undermined. It corresponds to the legal picture of damages, according to which the injured party is basically free to determine how to deal with the damaged thing.
New vehicle repair in specialist workshop
If, taking these principles into account, the equivalence of the repair at a lower price is determined, it could nevertheless be unreasonable for the injured party to make use of a repair option in this workshop. This applies especially to vehicles up to the age of three. In the case of new or as good as new motor vehicles, the injured party does not have to be referred to the repair options that could cause difficulties in the event of a later claim of warranty rights, a manufacturer's guarantee and / or goodwill services . In the interest of uniform and practice-oriented regulation, there are therefore basically no legal concerns for vehicles up to the age of three against an estimate of the necessary repair costs based on the hourly rates of a brand-specific specialist workshop.
Vehicles older than three years
In the case of motor vehicles that are more than three years old, it may also be unreasonable for the injured party to be referred to an alternative repair option outside of a brand-specific driving workshop as part of the claims settlement. Because even with older vehicles, the question of where the vehicle has been regularly serviced, “ checked ” or possibly repaired after an accident can be important. A large part of the audience, especially due to the lack of verification options, is of the opinion that (regular) maintenance and repair of a motor vehicle in a branded specialist workshop is more likely that this has been done properly and professionally. Therefore, this circumstance could also justify using the hourly rate of a brand-specific specialist workshop as a basis for claims accounting, although the injuring party or his liability insurer shows the injured party a readily accessible, equivalent and cheaper repair option. This could also be the case, for example, if the injured party specifically demonstrates that he has always had his vehicle serviced and repaired in a brand-specific specialist workshop or - in the case of the specific damage calculation - proves his particular interest in such a repair by means of the repair invoice.
It may be necessary for the injured party or a third party to present the documents in his or her possession and other documents to which the injured party referred, such as the "checkbook" or invoices for the performance of repair and / or maintenance work .
Decision in a specific case
In the case to be decided by the BGH, the plaintiff did not explain any significant circumstances, according to which a repair of his 9½ year old vehicle was necessary in a specialist workshop. The insurance was therefore not prevented from referring the plaintiff to an equivalent, cheaper repair option.
Conclusion
It has now been clearly clarified that an injured party does not have to be referred to a cheaper repair option from the point of view of the duty to reduce damage if his vehicle was not older than three years at the time of the accident. In the case of older vehicles, it is crucial that the vehicle concerned has always been serviced and, if necessary, repaired in a brand-specific specialist workshop up to the time of the accident. Can the injured party do this e.g. For example, in a checkbook, inspection invoices or repair invoices, the customer does not need to be referred to a cheaper repair option for vehicles that are more than three years old.
Web links
"VW judgment" of the Federal Court of Justice of October 20, 2009, Az .: VI ZR 53/09 . Website of the Federal Court of Justice. Retrieved September 7, 2013.
Individual evidence
- ↑ Press release No. 216/2009 (accessed on March 4, 2012)