Repair costs proven with invoice – objections of insurer irrelevant

After the attacks on fictitious damage settlement, the insurance industry has apparently now increasingly turned to settlement on the basis of repair costs. Recently, individual items on repair invoices and on the repair route have been called into question more frequently, although they are also reflected in exactly the same way in the damage appraisal commissioned by the claimant.

The case law here has now countered this practice.

The OLG Bamberg led in the judgment of 18.02.2020, Az. 5 U 310/19, initially out,

that there are regularly limits to the injured party’s possibilities of knowledge and influence with regard to the measures to remedy the damage as soon as it has issued an order to remedy the damage (e.g. order to prepare an expert opinion with regard to the damage or to carry out the repair) and has handed over the vehicle involved in the accident into the hands of experts, as these help to determine the limits of what is required to remedy the damage within the meaning of Section 249 of the German Civil Code. It would be contrary to the meaning and purpose of § 249 BGB if the injured party, when exercising the right to compensation granted to it by law – whether for reasons of substantive law, for example in application of § 278 BGB, or on the basis of the distribution of the burden of proof – the injured party would remain burdened with additional expenses for the repair of the damage in relation to the liable tortfeasor, the occurrence of which is beyond its control and which have their reason in the fact that the repair of the damage must take place in a foreign sphere of influence which cannot be controlled by the injured party and the tortfeasor. Therefore, the injured party cannot be blamed for improper or uneconomical work of the professionals it engaged in connection with the repair of the damage (expert in relation to the preparation of a damage assessment and/or workshop in relation to the commissioned repair work). In this respect, the injuring party bears the risk that the commissioned experts have proceeded improperly and/or uneconomically (cf. on the whole, BGH NZV 14,163; BGH NJW 75,160). Taking these legal principles into account, the defendant must therefore also compensate the amount of €208.25, even if this was caused by an improper approach on the part of the expert.

In other words, unless the injured party as a technical layman – and this will be as a rule – can recognize that repairs are being made to the vehicle that are in some way not necessary or unnecessary, the tortfeasor or its insurance company must pay the bill in full even if the insurance company’s objection to the repairs being made were true.

This case law is now also applied by the LG Schweinfurt in the judgment of 29.05.2020, Az. 22 S 2/20, as well as the AG Bad Kissingen in the judgment of 28.07.2020, Az. 72 C 110/20, without any restriction, and reject insurance cuts.




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