Inadmissible reduction of expert fee – no breach of the duty to mitigate damages pursuant to Section 254 (2) sentence 1 case 2 BGB
– Expert fee – In a legal dispute before the Cologne Local Court – case no. 269 C 207/15 – the court ruled on 12.02.2016 that the motor vehicle liability insurance of the other party involved in a traffic accident, which had been claimed for damages, must also bear the full expert costs incurred in the context of the damage assessment. Objections relating to the amount of the fee were rejected.
The Cologne Local Court ruled as follows:
- the defendant is ordered to pay the plaintiff an amount of EUR 132.20 plus interest of 5 percentage points above the respective base interest rate since June 12, 2015.
- The defendant is ordered to pay the costs.
- The judgment is provisionally enforceable.
Without facts (pursuant to 313a para. 1 ZPO)
Reasons for the decision:
(Expert fee)
The admissible action is well-founded. The plaintiff has a claim against the defendant for payment of the tenor sum in accordance with §§ 7 Para. 1, 17 Para. 1 StVG, 249 ff BGB. 115 VVG.
The defendant is indisputably liable for the consequences of the traffic accident at issue.
The plaintiff did not violate his duty to mitigate damages by commissioning the expert’s office. The defendant must therefore reimburse the further costs for the expert report commissioned by the plaintiff to assess the damage.
The plaintiff was entitled to commission an expert to estimate the amount of damage to his car damaged in the accident and can demand reimbursement of the objectively necessary expert costs from the defendant in accordance with Section 249 (2) sentence 1 BGB (see BGH, judgment of February 11, 2014 – VI ZR 225/13 -, juris, with further references). According to the established case law of the Federal Court of Justice and the competent court, the expenses that a reasonable, economically minded person in the position of the injured party would incur are to be regarded as necessary.
If the injured party can influence the amount of the costs to be incurred to remedy the damage, he is obliged, in accordance with the concept of damage and the purpose of compensation as well as the legal concept of § 254 para. 2 sentence 1 BGB, which ultimately goes back to § 242 BGB, to choose the more economical way of remedying the damage within the scope of what is reasonable for him from the point of view of the duty to minimize damage (cf. BGH loc. cit.). However, the requirement to remedy the damage in an economically reasonable manner does not require the injured party to make savings in favor of the injuring party or to behave in any case as if he had to bear the damage himself (see BHG, judgment of April 29, 2003 – VI ZR 393/02 -, juris).
Therefore, when examining whether the injured party has kept the costs of remedying the damage within reasonable limits, a subject-related assessment of the damage must be made, i.e. consideration must be given to the special situation of the injured party, in particular to his individual possibilities of knowledge and influence as well as to the difficulties that may exist for him in particular (see BGH, judgment of October 15, 1991 – VI ZR 314/90 – juris). The decisive factor is whether the costs demanded in accordance with § 249 Para. 2 BGB as the necessary production costs appear appropriate and reasonable from the point of view of a reasonable, economically thinking person in the position of the injured party to remedy the damage. This economic efficiency requirement requires the injured party to remedy the damage in the way that is the most economically reasonable in his individual situation, i.e. in view of his possibilities of knowledge and influence and taking into account any difficulties that may exist (see BGH, judgment of October 15, 2013 – VI ZR 471/12 -, juris).
When commissioning a motor vehicle expert, the injured party may also be content to commission the expert that is readily available to him in his situation. He does not have to conduct market research beforehand to find the expert with the lowest fee (see BGH, judgment of February 11, 2014 – VI ZR 225/13 -, juris, with further references). The injured party usually satisfies its burden of proof regarding the amount of damage by submitting an invoice from the expert it has engaged to repair the damage. The actual amount of the invoice is an essential indicator for determining the amount “necessary” for the repair within the meaning of ” 249 para. 2 sentence 1 BGB when estimating the damage in accordance with Section 287 ZPO. The actual invoice amount regularly reflects the special circumstances of the respective individual case, including the limited possibilities of knowledge of the injured party – relevant against the background of the subject-related damage assessment (see BGH, judgment of October 15, 2013 – VI ZR 471/12 -, juris).
The expert’s claim against the plaintiff was settled in full by the plaintiff.
Ultimately, however, it is not the legally owed costs that are decisive, but the costs actually required in the
sense of Section 249 (2) sentence 1 BGB. If the prices agreed with the expert or calculated by the expert are recognizably considerably higher than the usual prices for the injured party, they are not suitable for reflecting the necessary costs (see BGH, judgment of 22 July 2014 – VI ZR 357/13 -, juris, with further references). However, an indication of necessity is the conformity of the costs incurred by the injured party with the invoice of the price agreement on which it is based, unless this is also clearly recognizably considerably higher than the usual prices for the injured party. The injured party’s level of knowledge and knowledge possibilities therefore already play a decisive role in the examination of the necessity of the damage expenditure in accordance with Section 249 (2) sentence 1 BGB (see BGH, judgment of February 11, 2014 – VI ZR 225/13 -, juris, with further references).
Simply disputing the necessity of the stated invoice amount to remedy the damage is generally not sufficient to call into question the amount of damage claimed. The situation is different if circumstances arise from the agreements made that deprive the invoice of the indicative significance for the necessity of the expenses (see BGH, judgment of May 7, 1996 – VI ZR 225/13 -, juris). Such circumstances, which were recognizable for the plaintiff, have not been presented here.
The considerations with which the defendant arrived at a reduction of the expert costs claimed by the plaintiff cannot be reconciled with these principles, even in the context of the freer position of the court of cognizance in the assessment of damages pursuant to Section 287 (1) ZPO. When assessing the amount of damages, the court must take into account that the estimate pursuant to Section 287 (1) ZPO must be based on viable connecting factors. As can already be seen from the wording of Section 287 (1) sentence 1 ZPO, it must not be completely abstract, but must take into account the individual case (see BVerfG NJW 2010, 1870 para. 19). According to these standards, the defendant was not allowed to reduce the costs charged to the plaintiff by the loss assessor on the basis of a fee survey by an expert association or the case law on this topic. Only if the plaintiff could have recognized that the expert selected by him was charging fees for his work that were significantly higher than the usual prices in the industry would the economic efficiency requirement under damages law require that a cheaper expert be commissioned (see BGH, judgment of 15 October 2013 – VI ZR 528/12, juris).
Such circumstances did not exist here. Furthermore, the plaintiff was not obliged vis-à-vis the defendant to choose an expert with a more favorable fee offer. In addition, the plaintiff did not have to be aware of the result of the survey of the members of the association of experts on the amount of the usual fees or the case law on this topic. Thus, however, the costs claimed do not a priori fall outside the scope of the amount of money required to remedy the damage in accordance with Section 249 (2) sentence 1 BGB.
Therefore, the defendant would have had to demonstrate and prove in the present case that the injured party breached its duty to minimize damages in accordance with ” 254 para. 2 sentence 1 case 2 BGB, which a reasonable and prudent person would have taken to minimize damages. However, the mere fact that the ancillary costs invoiced by the loss assessor in the present case exceed the maximum rates evident from the BVSK fee survey does not justify the assumption of such a breach by the plaintiff (see BGH, judgment of 11 February 2014 – VI ZR 225/13 -, juris, with further references).
The claim for interest follows from Sections 288 (1), 286 (1), (2), No. 3 BGB. The defendant seriously and definitively refused to pay the remaining expert fees in its letter dated 12.06.2015.
The procedural ancillary rulings follow from Sections 91 (1), 708 No. 11, 713 ZPO.
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