Traffic law / Civil No Comments

No referral to a reference workshop 20.9 km away and full reimbursement of expert costs according to the BVSK fee survey

Bad Kissingen Local Court, judgment of 15.04.2025, file number 72 C 199/24

In proceedings conducted by our law firm before the Bad Kissingen Local Court (judgment of 15.04.2025, ref. 72 C 199/24), we were able to achieve an important success for our client in the area of traffic accident law. The judgment strengthens the rights of accident victims with regard to the fictitious settlement of repair costs and the reimbursement of expert costs.

Facts of the case

Our client was involved in a traffic accident through no fault of his own. The liability of the other party was undisputed. However, the amount of the repair costs to be reimbursed, the reduction in value and the expert costs were in dispute. The other party’s insurance company referred to a cheaper reference workshop, which was, however, 20.9 km away from our client’s place of residence, and reduced the expert costs.

Key statements of the judgment

  • No referral to a distant reference workshop: The court clarified that a referral to an independent garage is only reasonable if it is “easily” accessible. According to the court, this is no longer the case if the distance is more than 20 km. The referral to the workshop 20.9 km away was therefore deemed unreasonable. The hourly rates of the branded specialist workshop at the injured party’s place of residence are therefore decisive.
  • Expert costs according to the mean value of the BVSK fee survey: The court estimated the expert costs according to the mean value of the HB V corridor of the current BVSK fee survey. Additional costs such as reading out the fault memory were also recognized as reimbursable, provided they are documented in the expert opinion.
  • Reduction in value and other damage items: The reduction in value determined by the private expert was recognized, as the insurance company’s objections remained unsubstantiated.

Conclusion for injured parties

The ruling shows that insurance companies cannot arbitrarily refer to distant workshops and that expert costs must be reimbursed according to objective standards. Injured parties should not be too quick to accept reductions, but should have their claims checked by an expert.

Do you have questions about your traffic accident or about reduced claims? Contact us – we will enforce your claims!

Full text:

Local Court Bad Kissingen Ref. 72 C 199/24

ON BEHALF OF THE PEOPLE

In the legal dispute

[…] Plaintiff Authorized representative: […] against

  1. […] Defendant
  2. […] Defendants 1 and 2: […] for damages

the Bad Kissingen Local Court, through the judge at the […] Local Court, issues the following order on 15.04.2025 on the basis of the facts of 28.03.2025 without an oral hearing with the consent of the parties pursuant to Section 128 (2) ZPO (Code of Civil Procedure)

Final judgment

  1. The defendants are ordered as joint and several debtors to pay the plaintiff € 1,065.92 plus interest thereon at a rate of 5 percentage points above the base interest rate since 28.06.2024 and a further € 86.63 plus interest thereon at a rate of 5 percentage points above the base interest rate since 30.08.2024 The remainder of the action is dismissed.
  2. The plaintiff shall bear 14% of the costs of the legal dispute and the defendants shall bear 86% jointly and severally.
  3. The judgment is provisionally enforceable. The respective enforcement debtor may avert the enforcement of the respective enforcement creditor by providing security in the amount of 110% of the amount enforceable on the basis of the judgment, unless the enforcement creditor provides security in the amount of 110% of the amount to be enforced prior to enforcement.

Resolution

The amount in dispute is set at € 1,237.26.

Facts of the case

The parties are in dispute over the remaining damages resulting from a traffic accident in the district of Bad Kissingen.

The plaintiff is the injured party from a traffic accident that occurred on 05.06.2024 in […]. As part of the accident, he commissioned an expert opinion on the amount of damage to his vehicle. The expert determined damage to the vehicle in the amount of € 2,950.85 (excluding VAT) and a reduction in value of € 450.00. The expert determined the repair costs taking into account the hourly rates of the company […]. An amount of € 925.82 (incl. VAT) was invoiced for the expert opinion.

The defendants then paid € 1,998.65 (repair costs), € 300.00 (reduction in value) and € 790.76 (expert costs). A reference workshop named by the defendant with lower hourly rates is located 20.9 km from the plaintiff’s place of residence.

The plaintiff argues that the repair route is properly described in the expert opinion. He believes that the repair costs as well as the expert costs are customary and reasonable. A referral to a reference workshop was not reasonable due to the distance alone. The reduction in value was properly determined.

The plaintiff requests that the court rule as follows:

  1. The defendants are ordered as joint and several debtors to pay the plaintiff € 1,237.26 plus interest of 5 percentage points above the prime rate since June 28, 2024.
  2. The defendants are ordered as joint and several debtors to pay the plaintiff further pre-trial legal fees in the amount of € 86.63 plus interest of 5 percentage points above the base interest rate since service of the action.

The defendants request that the action be dismissed.

The defendants argue that the fault memory was not read out by the private expert. The repair costs, the reduction in value and the expert costs are excessive. The hourly rates as stated by the defendant should be assumed for the repair costs, and reductions should also be made in relation to the repair route. With regard to the expert costs, the basic fee and ancillary costs were excessive.

The court took evidence by recovering a written expert opinion from the expert […] dated 10.02.2025 on the basis of the order to take evidence issued by the Bad Kissingen Local Court on 14.10.2024. With regard to the result of the taking of evidence, reference is made to the written expert opinion.

The parties have given their consent to a decision by written procedure.

In order to supplement the facts of the case, reference is made to the written submissions of the parties together with the annexes, the written expert report and the other parts of the file.

Reasons for the decision

The admissible action is largely well-founded.

The plaintiff is entitled to further compensation from the defendants in the amount of € 1,065.92 plus interest as well as payment of further pre-trial legal fees in the titled amount. There is no further claim for payment.

I. The action is admissible. The Bad Kissingen Local Court has jurisdiction pursuant to § 1 ZPO in conjunction with §§ 23 no. 1 GVG. §§ 23 No. 1, 71 Para. 1 GVG and in accordance with §§ 20 StVG, 32 ZPO.

II The action is only partially justified.

The plaintiff is entitled to payment of further damages in the amount of € 1,065.92 from the defendants under §§ 7, 17, 18 StVG, §§ 823, 249 BGB, § 1 PflVG, § 115 VVG. He can also demand payment of interest on this amount. The plaintiff is also entitled to payment of further pre-trial legal costs plus interest.

  1. The fundamental liability of the defendant for the plaintiff’s damages from the traffic accident on June 5, 2024 is undisputed.
  2. The plaintiff can demand compensation for further repair costs in the amount of € 810.61.

As the plaintiff’s vehicle was damaged and in need of repair, he is to be placed in the position he would have been in had the damage not occurred. According to § 249 BGB, the actual expenses that a reasonable, economically minded person in the position of the injured party could consider appropriate and necessary are eligible for compensation (Grüneberg-Grüneberg, 84th edition 2025, § 249 BGB marginal no. 12). The injured party can also fictitiously calculate the necessary expenses on the basis of an expert opinion (Grüneberg, loc. cit. Section 249 BGB, para. 14). In this case, the hourly rates of a branded specialist workshop must be used as a basis.

a) Contrary to what the defendants argue, the plaintiff does not have to be referred to another (independent) garage with regard to the repair costs.

A referral to an independent workshop is possible if the reference workshop can carry out the repair in a technically equivalent manner and a referral to such an independent workshop is reasonable for the injured party (Grüneberg-Grüneberg, 84th edition 2025, Section 249 BGB, para. 24 with further references). The injured party, who easily has a cheaper and equivalent repair option that is readily available, must allow himself to be referred to it from the point of view of the duty to minimize damages pursuant to Section 254 (2) BGB (BGH NJW 2010, 606; BGH NJW 2014, 535 cited in beck-online). If the injuring party demonstrates and, if necessary, proves that a repair in a cheaper and easily accessible workshop corresponds to the quality standard of a repair in a branded specialist workshop, and if the injuring party refutes any circumstances demonstrated by the injured party that make a repair outside the branded specialist workshop unreasonable, the injured party must allow himself to be referred to the cheaper repair option (BGH NJW 2019, 852 cited in beck-online).

When a workshop is easily accessible in this sense must be decided on a case-by-case basis. The decisive factor here may be the distance between the place of residence and the brand-affiliated specialist workshop; furthermore, the additional time required for transportation and the risk of additional damage in the event of longer transport distances may provide indications (BGH judgment NJW 2015, 2110 cited in beck-online). According to the court, easy accessibility only exists if the reference workshop named by the claimant is not more than 20 km away from the claimant’s place of residence on publicly accessible roads. This does not depend on the distance as the crow flies; it is also irrelevant whether the named workshop is located in the municipal area of the injured party’s place of residence (see also OLG Munich judgment of 21.09.2022, ref. 10 U 5397/21e cited in juris).

Even if one were to assume that the reference workshop named by the defendants, the company […], can carry out the repair in an equivalent manner, a referral cannot be considered. The distance between the injured party’s place of residence and the repair shop is 20.9 km. The referral is unreasonable.

b) The values of the repair costs determined by the private expert are therefore decisive.

Based on the statements of the expert […], who is already known to the court as reliable and competent from a number of proceedings, in his expert opinion of 10.02.2025, repair costs of € 2,809.26 are required to restore the plaintiff’s vehicle. In his expert opinion, the expert stated that a reduction of € 87.89 for the production of a color sample was appropriate because the scope of work was to be set lower. Furthermore, it was not necessary to remove the front wheels, so that a further reduction of € 53.70 would result. However, further reductions were not to be made from the expert’s point of view. The court adopts these statements of the expert after critical assessment. They are conclusive and comprehensible.

The court also considers the so-called UPE surcharges and the connection costs for notional billing to be eligible for compensation. These costs are regularly incurred for repairs in the district court district of Bad Kissingen and are customary and reasonable in terms of the amount.

Therefore, € 2,809.26 are to be taken into account as repair costs. Since the defendants have already paid an amount of € 1,998.65, the claim for damages in this amount has expired, § 362 BGB. The plaintiff can still demand compensation for a further € 810.61.

  1. The plaintiff is also entitled to payment of a further € 150.00 reduction in value.

The value of the vehicle was reduced by € 450.00. In the private expert report, it was stated that the intensity of the damage, the age, the accident-free nature of the vehicle and the various calculation models were taken into account in the calculation. An estimated reduction in value of € 450.00 was to be assumed.

The defendants argued that a reduction in value of only €300.00 should be assumed. The appraisal report, the author of which is not apparent to the court and which did not inspect the vehicle, states that the depreciation amount is too high. There are no specific explanations as to why the result of the private expert opinion should not be correct.

The correct vehicle values were taken into account by the expert in the private expert report of the plaintiff. There are no apparent errors in the survey. There are no doubts about the estimate based on the defendant’s submission.

The defendants have already paid € 300.00 for this reduction in value, so that the claim has expired in this amount and there is still a residual claim of € 150.00.

  1. The plaintiff can demand compensation for further costs for the expert opinion in the amount of € 105.31.

a) The costs of an expert opinion are one of the damage items that an injured party can demand compensation for after a traffic accident. This is generally undisputed.

b) In its judgment of 12.03.2024, file no. VI ZR 280/22, NJW 2024, 2035 (cited in beck-online), the Federal Court of Justice stated that the principles on workshop risk, which the Senate developed in its judgment of 16.01.2024 (NJW 2024, 2031) for excessive cost estimates of a garage for the repair of the damaged vehicle are also applicable to excessive cost estimates of a motor vehicle expert whom the injured party has commissioned to assess his vehicle to determine the accident-related damage. According to these principles, the invoice paid by the expert has an indicative effect. Only if the injured party was aware that the invoice was too high can he only demand compensation for the costs actually incurred, the amount of which must then be assessed by the court of fact in accordance with Section 287 ZPO.

The plaintiff has not stated whether the expert’s invoice was paid.

c) If the necessary costs are estimated in accordance with Section 287 ZPO, the plaintiff is entitled to payment of € 896.07.

In order to determine the reasonable expert costs, which the court estimates in accordance with Section 287 ZPO, the court uses the BVSK fee survey as a basis for estimation in accordance with established case law. The survey from 2022, which was published on 02.02.2023, i.e. before the day of the accident, is decisive. The court uses the HB V corridor as a basis. This corridor shows how between 50% and 60% of BVSK members calculate their fees. This appears to be the most representative. The Regional Court of Schweinfurt as the appeal chamber has not yet established that the BVSK fee survey 2022 is an unsuitable basis for estimation. In the opinion of the court, it is a representative survey that can be used as a basis for estimation regardless of the membership of the expert actually invoicing.

d) Based on the amount of damage in the expert opinion of € 2,950.85 (net repair costs) and a reduction in value of € 450.00, this results in a basic fee of between € 583.00 and € 640.00. The court uses the mean value, so that the estimate results in € 615.00 as submitted by the defendants.

According to the BVSK fee survey, a flat rate of €15.00 can be charged for postage and telephone costs. The expert opinion contains 10 written pages. The BVSK fee survey states € 1.80 per page, resulting in € 18.00 plus € 5.00 for this. The 16 photos can be charged at € 2.00 each according to the BVSK fee survey. This results in € 32.00 and € 8.00 for photos. In principle, it is also up to the expert to decide how many photos he considers necessary to properly document the damage. In the present case, at least no obviously useless photos are included in the expert opinion. This results in billable ancillary costs of € 78.00.

Furthermore, the expert included the additional costs for “fault memory readout” in the invoice. According to the BVSK fee survey, such additional costs can be invoiced separately and are not included in the basic fee. The amount of this fee was not disputed. Insofar as the defendants disputed the reading out of the fault memory, the private expert opinion and the 10 pages attached after the photographs speak in favor of reading out the fault memory. These pages are the printout of the analysis. There is no doubt that the fault memory was read out. In this respect, the additional costs of € 60.00 are also rightly charged.

According to the court’s estimate, € 896.07 (incl. VAT) should have been charged for the expert opinion. The expert requested an amount of € 925.82. The costs for the expert opinion are therefore excessive. After deducting the € 790.76 already paid by the defendants, the plaintiff is still entitled to € 105.31.

  1. This results in a total payment claim of € 1,065.92 (further repair costs € 810.61, further reduction in value € 150.00, further expert costs € 105.31).
  2. The interest claim in relation to the principal claim follows from Sections 280, 286, 288 BGB, Section 187 (1) BGB by analogy.
  3. The pre-trial legal costs are reimbursable as necessary legal costs in accordance with § 249 BGB and are made up of a 1.3 fee from a justified object value of € 4,185.33 (repair costs € 2,809.26, reduction in value € 450.00, expert costs € 896.07, lump sum for expenses € 30.00) plus a lump sum for expenses and the VAT on this.

Since the defendants have already paid € 453.87 towards the pre-trial legal costs, the plaintiff’s claim has expired in this amount, Section 362 BGB, and there is still a residual claim of € 86.63. The claim for interest in this respect arises from §§ 288, 289 BGB, §§ 253, 261 ZPO, § 187 para. 1 BGB analogously.

III The decision on costs is based on Section 92 (1) ZPO.

The ruling on provisional enforceability is based on Sections 708 No. 11, 711 ZPO.