Bad Kissingen Local Court, judgment of 12.08.2025, ref. 72 C 242/24

We are pleased to report another success for one of our clients before the Bad Kissingen Local Court. In the proceedings conducted by us (case no. 72 C 242/24), the opposing liability insurance company was ordered to pay further compensation following a traffic accident. The judgment is of particular importance for injured parties and claimants after road accidents, as it clarifies key issues of fictitious settlement, the reasonableness of workshop referrals and loss of use damages.

What had happened?

Our client was involved in a traffic accident with her vehicle through no fault of her own. The opposing insurance company only partially settled the claim and referred to a cheaper independent garage. In addition, the loss of use was only recognized for three days.

Our reasoning and the judgment

The Bad Kissingen Local Court has confirmed our legal opinion in key points:

• Fictitious settlement: The court made it clear that the injured party can continue to settle on the basis of an expert opinion, even if the vehicle was repaired independently. The opposing insurance company could not refer to a cheaper workshop, as its costs were even higher than those of the brand-affiliated workshop.
• Loss of use for the entire downtime: The loss of use was awarded for the entire notional required downtime, including the time for the preparation of the expert opinion and an appropriate reflection period. A total of 15 days of loss of use was recognized.

Do you have questions about claims settlement after a traffic accident? We will provide you with competent advice and enforce your claims!

Excerpts

Local Court Bad Kissingen Ref. 72 C 242/24

[…]

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).

c) In principle, such a referral of the plaintiff by the defendant would be possible. The court is convinced that the reference workshop is only 19.8 km away from the plaintiff’s place of residence via […]. According to the convincing statements of the expert Dipl.-[…] in his written expert opinion, the workshop is also equivalent to the workshop from the private expert opinion.

However, the costs at the independent workshop […] GmbH & Co. KG named by the defendant amount to € 4,668.54 and are therefore higher than those in the expert’s calculation. The hourly rates of the company […] stated by the defendant (Annex […]) are also in the same range as those used by the private expert.

Based on the convincing statements of the expert Dipl.-[…] in his expert opinion of 03.07.2025, it is clear that the repair costs were correctly determined in the private expert opinion. The expert […], who is already known to the court as competent and reliable from a large number of proceedings, stated that the plaintiff’s vehicle had suffered repair damage in the amount of € 4,668.54 if the current hourly rates of the reference workshop named by the defendant were taken as a basis. The court adopts the expert’s statements after a critical assessment. In particular, the costs for the wages are correctly determined. The expert determined the current hourly rates of the company […] Autohaus […] GmbH & Co. KG for his expert opinion. The court adopts these statements of the expert as its own.

Moreover, the expert’s statements were not challenged by the parties.

Irrespective of the fact that the expert […] concludes in his report that the repairs in the workshops are equivalent, the repair costs in the reference workshop are the same as or even higher than those in the brand-affiliated workshop.

The total repair costs are eligible for compensation. The repair costs determined by the private expert represent the expenditure required for restoration.

The question of referral to a non-branded, independent garage is ultimately irrelevant because the costs at the referral garage correspond to those of the branded garage mentioned.

[…]

Loss of use:

In principle, the injured party is entitled to compensation for loss of use resulting from a traffic accident. According to established case law, the temporary loss of the ability to use a motor vehicle also constitutes financial loss if the injured party has not procured a replacement vehicle for the period of loss of use (BGH NJW 2010, 2426 cited in beck-online). The prerequisite for such compensation for use is, on the one hand, that the injured party actually has to forego the use of his vehicle as a result of the damage (BGH NJW 1976, 1396 cited in beck-online). Secondly, the loss of use must be perceptible to the injured party (BGH NJW 1966, 589). This requires, in particular, the will to use and hypothetical possibility of use for the entire actual and not estimated duration for which the claim is asserted (Geigel Haftpflichtprozess/Katzenstein ch. 3 para.).

The defendant paid the plaintiff 3 days’ compensation for loss of use. It is undisputed between the parties that the plaintiff’s vehicle was repaired. In any case, the defendant paid a loss of use damage for the duration of 3 days of repair (from the expert opinion) prior to the proceedings. The defendant did not request a confirmation of repair, rather the duration of 3 days stated in the private expert report was accepted and compensated by the defendant.

With regard to the intention to use and the hypothetical possibility of use, the injured party is generally burdened with the burden of presentation and proof (Geigel, Haftpflichtprozess/Katzenstein ch. 3 para.). However, life experience speaks in favor of an intention to use the vehicle if the accident had not occurred ( OLG Brandenburg NJW-RR 2020, 668 with further references quoted from beck-online). Accordingly, the hypothetical intention of the private keeper or owner of a vehicle to use the vehicle for the duration of the vehicle breakdown is generally to be assumed without the need for a special explanation in this respect (OLG Brandenburg loc. cit.).

This is the situation here. The plaintiff was involved in a traffic accident with her private car. Although the vehicle was still roadworthy due to the accident, it was only partially operational and roadworthy. The plaintiff was therefore no longer able to safely drive her vehicle on the road. This was despite the fact that the plaintiff would have wanted to use the vehicle. Intent to use and hypothetical possibility of use must be assumed.

The claim for loss of use exists for the necessary downtime of a vehicle. This time is made up of the necessary repair or replacement time plus the time required to assess the damage and, if applicable, a reasonable period of reflection (BGH NJW 2013, 1151; BGH NJW 2017, 1310; BGH NJW 2018, 1393; AE.Haftpflichtprozess/AF. Ch. 3 para. 193 with further references cited in beck-online). In particular, the duration of the loss of use to be compensated regularly includes the time required to obtain a prior damage assessment from an out-of-court expert (BGH NJW 2013, 1151 cited from beck-online). The accident occurred on 15.05.2024. The expert opinion was commissioned on the same day and, according to the expert opinion, the private expert also inspected the vehicle on 15.05.2024. The expert opinion is dated 23.05.2025. Nine days elapsed between the accident and receipt of the expert opinion. The plaintiff has no influence on the duration of the expert opinion. In addition, a duration of 9 days for an expert opinion is not objectionable. The accident occurred on a Wednesday. In addition, the Whitsun weekend fell between the day of the accident and the sending of the expert opinion.

A consideration period of 3 days is appropriate. The repair time according to the private expert’s report is 3 days and was not objected to by the defendant.

This results in a duration of 15 days for the compensation for loss of use.

[…]