The Cologne District Court has addressed the issue of overlapping, intersecting pre-existing damage to a car and the associated burden of presentation and proof in a court ruling.
Facts of the Case Regarding Overlapping Pre-existing Damage:
The plaintiff is the lessee of a VW vehicle. The defendant 1) is the liability insurer of the SEAT car, whose owner is the defendant 3). On June 14, 2019, the vehicle leased by the plaintiff was involved in a traffic accident in which the tip of the right passenger door was bent outward and the door was scratched. On September 1, 2019, witness P was driving the vehicle leased by the plaintiff on the Ehrenfeld ring road in the left of the two lanes in a southerly direction. The defendant 2) was driving in the right lane slightly behind witness P. About 30 m behind the traffic light at the intersection with Bartholomäus-Schink-Strasse, the two vehicles collided in such a way that the vehicle driven by witness P was damaged in the middle right and the defendant’s vehicle in the front left. The plaintiff had the vehicle repaired. By letter dated October 11, 2019, the plaintiff, represented by a lawyer, claimed repair costs according to an expert opinion of €2,023.30 net, a reduction in value of €100.00, expert costs of €463.50, loss of use of €90.00, and a lump sum of €25.00, totaling €2,701.80 from defendant 1) and unsuccessfully demanded payment by October 22, 2019. With the lawsuit, she seeks payment of 50% of this amount.
The plaintiff claims that the damage incurred on June 14, 2019, was repaired in an auto repair shop. The defendant 2) allegedly collided with the vehicle leased by the plaintiff, which had remained in its lane.
Originally, the plaintiff requested that the defendants be jointly and severally ordered to pay her 1. €1,350.00 plus interest at 5 percentage points above the respective base rate since October 23, 2019. 2. to indemnify her from the out-of-court legal costs amounting to €89.70.
With the pleading dated July 24, 2020, received by the court on July 27, 2020, and served on August 13, 2020, the plaintiff has modified the claims and now requests,
1. that the defendants be jointly and severally ordered to pay her €57.50 plus interest at 5 percentage points above the respective base rate since October 23, 2019.
2. that the defendants be jointly and severally ordered to indemnify her from the payment of €1,061.65 in favor of V Bank.
3. that the defendants be jointly and severally ordered to indemnify her from the payment of expert costs amounting to €231.75 in favor of the automotive expert.
4. that the defendants be jointly and severally ordered to indemnify her from the out-of-court legal costs amounting to €89.70.
The defendant requests,
that the claim be dismissed.
The defendants deny with lack of knowledge that the pre-existing damage was professionally repaired and that the claimed damages are entirely attributable to the accident in question. They claim that witness P entered the lane driven by defendant 2) and thereby caused the collision.
The court has taken evidence by examining witnesses P and S and by obtaining an expert opinion and supplementary statement from the expert in the parallel proceedings, which was combined with the present proceedings for joint hearing and taking of evidence. For the results of the taking of evidence, reference is made to the minutes of the session and the expert opinion.
The court has consulted the fine file of the City of Cologne for information and evidence purposes and made it the subject of the oral hearing.
For further details of the facts and dispute, reference is made to the exchanged pleadings and their annexes.
Reasons for the Decision:
The admissible claim is unfounded.
The plaintiff is not entitled to any claim against the defendants under any conceivable aspect. In particular, such a claim does not arise from Sections 7, 18 of the Road Traffic Act, 115 of the Insurance Contract Act. This is because the plaintiff has not conclusively demonstrated that and to what extent she has suffered damage due to the accident in question. It is unclear and also not further clarifiable whether any damage was caused by the defendant’s vehicle, and if so, what damage.
Burden of Presentation and Proof
The alleged damage from September 1, 2019, shows an overlap with previous damage from June 14, 2019, where the plaintiff’s vehicle was also damaged on the passenger door. However, when a damaged vehicle shows pre-existing damage in the same area, the injured party must specifically demonstrate which repair measures are necessary to rectify the damage and in what way pre-existing damages have been professionally repaired. In case of partial overlap between pre-existing damage and accident damage with similar damage patterns, it is incumbent upon the injured party, if the extent of damage is disputed, to substantiate the course of the accident leading to the pre-existing damage and the resulting damages concretely and in detail, particularly also to explain the repair method and extent of the pre-damaged vehicle. In such a case, reference to a privately commissioned damage assessment is not sufficient (cf. Berlin Regional Court, VersR 2005, 995; Hanseatic Higher Regional Court, judgment of May 21, 2003, 14 U 222/02; Hamm Higher Regional Court, judgment of September 14, 1999, 34 U 26/99; Cologne Higher Regional Court, VersR 1999, 865). Reference to the external appearance or unsubstantiated claims that pre-existing damages have been professionally repaired and/or the necessary work has been carried out do not usually replace the presentation of the specific repair process. The specific repair process – on which even an expert could only draw conclusions from the external appearance and usually gain more accurate insights only after disassembly – is not to be determined by obtaining an expert opinion or questioning witnesses in the process, as this would constitute an inadmissible exploratory evidence. Moreover, the task of an expert opinion is not to spare the claimant the necessary factual presentation, but to evaluate the concrete repair measures – if necessary, proven by witnesses or documents. The plaintiff does not meet these requirements. She has generally claimed that the pre-existing damage was repaired. She should have provided substantiated information about the repair, particularly by submitting a repair invoice that shows the repair process, or by submitting a list that shows the spare parts purchased and used, before her offer of proof can be pursued. She has done neither.
Burden of Proof; Damage Assessment Civil Procedure Code
Finally, the court is also not in a position to estimate the amount of repair costs according to Section 287 of the Code of Civil Procedure. Because even if one were to assume that certain damages have actually occurred, it could not be determined to what extent and in what amount. There is a lack of connecting facts for this. Section 287 Paragraph 1 of the Code of Civil Procedure may ease the burden of presentation and proof regarding the extent and amount of damage, but this by no means leads to a waiver of the presentation of the
connecting facts necessary for the exercise of discretion or estimation. These must rather be presented and proven by the claimant (Berlin Court of Appeal, judgment of August 27, 2015, 22 U 152/14). In this case, however, due to the lack of explanations regarding the nature and extent of the repair of pre-existing damages in the area damaged again, there is already insufficient presentation of sufficiently tangible indications that provide a secure basis for assessing the probability of the extent of damage.
Due to the lack of proof of damage, there is also no entitlement to reimbursement of the lump sum and ancillary claims.
The procedural ancillary decisions are based on Sections 91, 708 No. 11, 711 of the Code of Civil Procedure.
Amount in dispute: €1,350.00
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