Local Court of Schweinfurt, judgment of 06.05.2025, file number 10 C 158/25

As a law firm specializing in traffic law, we were once again able to enforce expert costs from assigned rights.

1. BVSK 2022 as a suitable basis for estimation

The court again confirmed the usability of the BVSK survey: The BVSK 2022 was used as a suitable basis for estimation when estimating the damage, as it is a nationwide survey with a large number of independent experts.

With the introduction of BVSK 2022, the main point of criticism that ancillary costs were not recorded was resolved.

2. fee calculation according to amount of damage permissible

In principle, there are no objections to the assessment of the necessary expert costs based on the amount of damage. A motor vehicle expert does not exceed the limits of legally permissible pricing if he sets a reasonable flat rate for the fee.

3 Reimbursable incidental costs

The court recognized the following ancillary costs as recoverable:

• Writing costs: Writing costs were generally to be reimbursed and represent the usual remuneration. In any case, the costs of preparation were to be reimbursed for the original
• Photo costs: Photo costs were to be reimbursed, are usually billed separately and the photographs taken were necessary
• IT costs: The costs of the IT programs were to be reimbursed, but not for the repair calculation, but for the rental car group and VIN query

Practical significance

This ruling strengthens the position of motor vehicle experts and confirms established billing practices. Particularly noteworthy is the recognition of BVSK 2022 and the detailed breakdown of reimbursable ancillary costs.

We have extensive expertise in the enforcement of expert costs and are familiar with the latest developments in case law. Contact us for a successful collaboration!

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Local Court Schweinfurt

Ref. 10 C 158/25

ON BEHALF OF THE PEOPLE

in the legal dispute

[…]

Attorneys of record: Rechtsanwälte Grüne & Partner Rechtsanwälte mbB, Mainberger Straße 36, 97422 Schweinfurt, Gz. 590/24 GG

vs.

[…]

for damages

the Local Court of Schweinfurt by the judge at the Local Court […] on 06.05.2025 based on the oral hearing of 08.04.2025 issues the following order

Final judgment

1. The defendant is ordered to pay the plaintiff € 69.97 plus interest of 5 percentage points above the prime rate since February 22, 2025. The remainder of the claim is dismissed.
2. Orders the defendant to pay the costs.
3. The judgment is provisionally enforceable.

Resolution

The amount in dispute is set at € 69.97.

Reasons for the decision

Pursuant to Section 495a ZPO, the court determines the procedure at its reasonable discretion. Within this decision-making framework, the court generally takes into account the entire contents of the file.

1. the plaintiff is entitled to compensation from the defendant for the necessary expert costs on the basis of assigned rights.

1.1. The plaintiff could demand reimbursement of the expert costs assigned to him.

1.2. If compensation is to be paid due to damage to an object, the injured party can demand the necessary amount of money instead of the production in accordance with Section 249 (2) sentence 1 BGB – so-called “right of substitution”. However, if the expert, such as the plaintiff in this case, has had the claim for damages of the injured party assigned to him in the amount of the fee claim, he cannot invoke the expert’s risk as the assignee. The principles developed in this regard in the judgment of the BGH of 16.1.2024 (r+s 2024, 332 para. 23-25) apply accordingly to the expert:

1.2.1. According to § 399 Alt. 1 BGB, a claim cannot be assigned if the payment cannot be made to a creditor other than the original creditor without changing its content. Such a change in content is also assumed if a change of creditor is legally conceivable, but the debtor’s interest in retaining a certain creditor position is particularly worthy of protection (established case law, see BGH NJW-RR 2020, 779 para. 76; NJW 2010, 1074 para. 27; BGHZ 96, 146, 148f. para. 16f. NJW 1986, 713; see also MüKoBGB/Kieninger, 9th ed. BGB § 399 marginal no. 24 marginal no. 22; Staudinger/Busche BGB, 2022, BGB § 399 marginal no. 22, in each case with further references)

1.2.2. This legal concept applies here insofar as the injured party can invoke the expert’s risk in relation to the injuring party even if the invoice has not been settled if he demands payment to the expert. In this respect, the injuring party has a particularly legitimate interest in ensuring that the injured party remains his creditor. Only in relation to the latter is it possible to carry out the benefit-sharing in any case, because the claim for damages against the injuring party and the (possible) claims against the expert to be assigned by way of benefit-sharing lie in one hand (with the injured party). This is no longer the case after the assignment of the claim for damages to the expert. The injuring party would therefore regularly lose the right to fulfill his own payment obligation only step by step against the assignment of the injured party’s claims against the expert. In the case of an assignment to the expert – as in this case – it must also be taken into account from an evaluative point of view that, according to their dogmatic derivation, the principles of expert risk should only benefit the injured party, but not the expert himself (see Senate r+s 2024, 332 para. 23 f.)

1.2.3. After all this, the option of the injured party to invoke the expert risk even if the invoice has not been settled cannot be transferred to third parties by way of assignment. As a result, the assignee always bears the expert risk when asserting the claim from the assigned right. In proceedings for damages against the injuring party or its liability insurer, the assignee – in this case the plaintiff expert – must therefore demonstrate and, if necessary, prove that the invoiced measures were actually carried out as part of the appraisal and that the appraisal costs claimed were not necessary due to excessive material or labor costs, due to improper or uneconomical working methods of the expert or – if the fee is calculated according to the amount of the damage – due to incorrect damage assessment (cf. BGH r+s 2024, 332 para. 25 and NJW 2024,2035 para. 22-25, beck-online)

1.3. Based on these premises, the following applies:

1.3.1. As part of the damage, the injured party could in principle claim payment of expert costs. If the injured party commissions an expert opinion to determine the amount of the damage after a traffic accident, he can demand reimbursement of these costs from the tortfeasor, in this case the defendant as the tortfeasor’s liability insurer, to the extent that these costs were objectively necessary in accordance with Section 249 (2) sentence 1 BGB.

1.3.1.1. A price agreement has neither been submitted nor is it evident from the documents submitted. Insofar as no price agreement was made, the (objectively) customary remuneration within the meaning of Section 632 BGB is owed. Based on these aspects, the following amount is necessary within the meaning of Section 249 (II) sentence 1 BGB.

1.3.1.2. Basic fee

BVSK 2022 was used as the basis for estimating the damage. The court is convinced that this is a suitable basis for estimation (e.g. also OLG Munich, BeckRS 2016, 4574, para. 20 f. on BVSK 2015) The BVSK survey was conducted nationwide and a large number of independent experts took part in it. In principle, there are no objections to the assessment of the necessary expert costs based on the amount of damage. A motor vehicle expert does not exceed the limits of legally permissible pricing simply by setting a reasonable flat-rate fee based on the amount of damage. As a rule, damage appraisals serve to facilitate the realization of claims for damages. The correct determination of the amount of damages is owed as a success; the expert is liable for this. Therefore, an appropriate flat-rate fee based on the amount of damage takes into account the fact that the expert’s fee is the consideration for determining the economic value of the injured party’s claim, which is of decisive importance according to case law (see BGH, judgment of 24.10.2017 – VI ZR 61/17, para. 24; in conclusion, also OLG Munich final judgment of 26.2.2016 – 10 U 579/15, BeckRS 2016, 4574, para. 17) It is precisely this very relevant circumstance that is completely ignored when assessing the fee according to the time spent and speaks against such an approach to remuneration. Furthermore, the use of the BVSK survey does not contradict the supreme court case law of the Federal Court of Justice. The BGH has not ruled that the BVSK surveys are fundamentally unsuitable to serve as a suitable basis for estimation. In the decision of 22.07.2014 (NJW 2014, 3151 ff.), it only reviewed the reasons given by the Court of Appeal for not applying the BVSK survey and stated that the objections to its application listed there are not objectionable under appeal law. In addition, with the introduction of the BVSK 2022, the relevant point of criticism, namely that ancillary costs were not recorded, was remedied. Taking into account the fee corridors HB V of the BVSK 2022 survey for repair expenses plus mercantile reduction in value up to €4,500.00, this provides a corridor of €662 – €735. The basic fee invoiced is still within this corridor and is therefore to be regarded as necessary. A reduction to the mean value, as the defendant did, was not necessary. The amount of the objectively incurred damage must also be estimated. The fee corridor stated in BVSK represents average values.

The fee is therefore to be regarded as necessary up to the upper limit.

1.3.1.3. Incidental costs

The plaintiff can claim the ancillary costs asserted; these also fall under the amount required to make good the damage. It is irrelevant whether the injured party concluded a separate agreement with the expert regarding the obligation to pay for ancillary services. What is to be remunerated or is to be covered by the basic fee is to be determined by interpreting the contract. Accordingly, in the absence of a specific agreement, at least the usual remuneration in accordance with Section 632 BGB is owed. The following applies with regard to the complained ancillary costs “writing costs” and “photo costs”:

1.3.1.3.1. Writing costs, photo costs

Writing costs were generally to be reimbursed. These represent the usual remuneration. In any case, the costs of preparing the original were to be reimbursed. This was also to be prepared in the case of electronic transmission.

1.3.1.3.1.1. Insofar as it is asserted that the claimed writing costs also include pages of the automatically produced repair procedure, this must be agreed in principle. The (objectively) customary remuneration within the meaning of Section 632 BGB is owed. As far as can be seen from previous work in cases involving the invoicing of experts, the writing costs are calculated on the basis of the actual scope of the expert opinion.

1.3.1.3.2. Photo costs were to be reimbursed. These are usually invoiced separately and are not part of the main service obligation. The photographs taken were also necessary. The plaintiff was able to explain to the court in a comprehensible manner the reasons why the photographs complained of were required. The court agreed with this information after independent examination.

1.3.1.4. IT costs

The costs of the IT programs used were to be reimbursed. The costs of the repair calculation are not to be reimbursed, as these are incurred for every appraisal. However, the costs for determining the rental car group and the VIN query are to be reimbursed. The necessary costs were therefore estimated to be at least €3.50.

[…]

signed. […] Judge at the local court

Delivered on 06.05.2025 attn. […], JAng Clerk of the Registry