Loss of use (also) in case of billing “according to expert opinion” and reimbursement of repair confirmation

In a (legally binding) judgment obtained by us from the 12.04.2021, Az. 23 O 899/20the Regional Court of Schweinfurt commented extensively on questions relating to loss of use in the case of fictitious settlement (i.e. without submission of a repair invoice) as well as the reimbursability of and requirements for a repair confirmation:

Loss of use also in case of fictitious settlement. compensable for the duration that is objectively necessary for the repair in a specialist workshop:

The fact that the parties in the present case did not settle the actual performance of the repair, but the plaintiff settled the accident damage pursuant to § 249 para. 2 sentence 1 of the German Civil Code (Bürgerliches Gesetzbuch – BGB) on the basis of an expert opinion does not fundamentally change the eligibility for compensation of the loss of use. In such a case, however, the claim to compensation for loss of use shall exist only for the period of time objectively required for the repair, even if a self-repair actually carried out may have taken longer.

In the case of fictitious settlement, Saturdays and Sundays shall be added to the working days objectively required for the repair when calculating the duration of the loss of use if a working week of 5 working days is exceeded:

If the repair duration is to be assessed with 6 working days, then a loss of use of 8 days is compensable in the case of fictitious settlement, since it is generally known that on the basis of a 5-day working week – repairs in workshops do not regularly take place on Saturdays and/or Sundays – the injured party would thus ultimately have lost the use of his vehicle through a repair not only on the 6 working days but also on the two weekend days (Saturdays and Sundays) lying necessarily between those working days.

In the case of fictitious billing, the court may estimate the objectively required repair time in accordance with Section 287 of the German Code of Civil Procedure (ZPO) and follow the party expert’s assessment. Blanket assessments by testing service providers are irrelevant in this respect:

In view of the fact that the parties are not in dispute as to the basis of liability, the assessment of the damages to be paid is subject to the discretionary estimate of the court as a question of legal consequences pursuant to Section 287 of the Code of Civil Procedure.

The court bases its estimate on the statements of the private expert, who determined the repair time with the duration stated. There is no doubt about the expert’s statements. Although the defendants have questioned the justification of those findings by submitting an assessment of carexpert GmbH and have cited a “corrected/confirmed” repair duration of 3/4 working days, specific facts as to how such a lower repair duration is supposed to result cannot be inferred from the audit report of carexpert GmbH. The situation is different with regard to the findings of the private expert, who in his expert opinion gave a detailed breakdown of the repairs to be carried out, in particular with regard to the labor values (= “AW”) to be used. In this way, the findings of the private expert are plausible and comprehensible, in contrast to the blanket assessment of carexpert GmbH, to which the defendant refers without further elaboration.

Costs for the preparation of a repair confirmation shall be included in the compensable damage:

As evidence, the repair certificate is of particular significance for the question of whether repairs have been carried out and is thus a prerequisite for being able to meet the strict burden of proof placed on the injured party with regard to the repair of the initial accident damage in the event of a new traffic accident. For this reason, the costs of a repair confirmation count as compensable damage, especially since the damage to the plaintiff’s Mercedes was reported to the HIS and the question of repairing the accident damage here can be raised in the event of new damage.

A repair confirmation must state (mutatis mutandis) that the repair has taken place in accordance with the requirements of the previously prepared repair report:

The only decisive factor in the present case is that the confirmation was issued by the very expert who had previously determined the scope and content of the repair measures to be carried out. Accordingly, even without an express note, the repair confirmation is to be understood in such a way that the repair has taken place “according to the expert opinion” or similar, namely in accordance with the requirements of the previously prepared repair expert opinion.

A cost lump sum of 35 € plus. VAT is justified for the preparation of a repair confirmation by an expert:

The defendants must therefore reimburse the plaintiff the amount invoiced at €41.65 for the preparation of the repair confirmation. The objection raised against this that the expert had unnecessarily taken photographs in the course of preparing the confirmation, thus incurring costs, is obviously incorrect. This is because the expert did not charge the plaintiff for the production of photographs in any case; instead, the expert charged a flat fee of €35 (plus VAT). The court has no doubts about the justification of the amount of this lump sum.

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