Weighing up the contributions to fault – traffic accident § 17 para. 1 sentence 2 StVG, § 17 para. 2 StVG, § 17 para. 3 StVG, liability ratio 50:50
On December 4, 2014, the Cologne District Court ruled – case no. 271 C 199/12 – in an accident case in which the plaintiff’s vehicle drove onto a bridge feeder road from the right while the defendant’s vehicle was on the bridge feeder road.
The driver of the claimant’s vehicle intended to enter the right of the two directional lanes of the feeder road to the S-Bridge via a parallel lane from the right. The defendant’s vehicle was on the right lane of the feeder road. A collision occurred between the two vehicles. It was disputed between the parties whether the accident happened during the merging of the claimant’s vehicle or after the merging in terms of time and location. After obtaining an expert report, it was determined under Section 17(2) of the German Road Traffic Act (StVG) that the accident was unavoidable for neither party. Furthermore, under Section 17(1) sentence 2 StVG, it was not established whose liability for compensation could be excluded from the outset.
In detail:
Verdict tenor:
The defendants are ordered as joint and several debtors to pay the plaintiff € 642.89 plus interest at a rate of 5 percentage points above the prime rate, but not more than 5% interest in total, since October 10, 2012.
In addition, the defendants are ordered as joint and several debtors to pay the plaintiff pre-trial legal fees in the amount of € 104.50 plus interest in the amount of 5 percentage points above the respective base interest rate, but not more than a total of 5% interest, from November 28, 2012. The remainder of the action is dismissed.
Orders the plaintiff to pay 50% of the costs and the defendants to pay 50% jointly and severally.
(…)
Facts of the case
The plaintiff, who is entitled to deduct input tax, asserts claims for damages arising from a traffic accident.
At the time of the accident, the plaintiff was the owner of the Mercedes (…) vehicle, which was driven by the witness K. at the time of the accident. Defendant 1) was the motor vehicle liability insurer of the Mercedes (…) vehicle driven by defendant 2) at the time of the accident.
On 26.6.2012, the defendant (2) was driving the defendant’s vehicle on the road leading to the S. bridge from T. Straße (P-Graben). From the right, coming from the direction of U. Gasse, a road joins the P-Graben. At the time of the accident there was a construction site in this area. The speed limit was 30 km/h. There was a stop sign for road users coming from the direction of U. Gasse. The witness K. was driving the plaintiff’s vehicle on the feeder road to the S. bridge (P-Graben) coming from U.Gasse. The two vehicles collided with each other on the P.-Graben under circumstances that are disputed in detail.
The plaintiff’s vehicle suffered material damage amounting to €1,260.79 net (see cost estimate from the car dealership F.). The plaintiff, who was represented by a lawyer, claimed this plus a lump-sum accident fee of €25.56 from the defendant (1) in a letter dated 10.7.2012 and 2.10.2012, setting a deadline of 9.10.2012. No payment was made.
The plaintiff claims that the witness K. had stopped properly at the driveway. At the time of the accident, he had already joined the traffic on the access road to the S. bridge. He had been driving straight ahead for about 15 meters when the defendant 2) with the defendant’s vehicle hit the plaintiff’s vehicle from behind at a greatly excessive speed. The accident was unavoidable for the witness Karimian.
The applicant claims that the Court should,
- order the defendants as joint and several debtors to pay the plaintiff 1,286.35 plus 5% interest since October 10, 2012;
- order the defendants as joint and several debtors to pay the plaintiff €156.50 plus 5% interest from the date of judgment.
The defendants request that the action be dismissed.
The defendants claim that defendant 2) was still a few meters away from the junction when witness K. drove up from there in the plaintiff’s vehicle. The latter did not stop at the stop sign, but drove out of the subordinate junction onto the P. ditch immediately and directly in front of the defendant 2), so that the defendant 2) was no longer able to prevent a collision despite braking hard and sounding the horn. Defendant 2) was not driving faster than the permitted 30 km/h. They are of the opinion that the witness K. violated § 8 StVO.
The action was served on the defendants on 27.11.2012. The court consulted the fine file of the city of K. (…) and made it the subject of the hearing. The court heard the defendant 2) by way of information and took evidence by hearing the witness K. With regard to the result of the informational hearing and the hearing of witnesses, reference is made to the minutes of the hearing of 13.6.2013. In addition, the court took evidence in accordance with the order to take evidence of 13.6.2013 by obtaining a written accident reconstruction report and in accordance with the order of 10.7.2014 by obtaining a supplementary report. With regard to the event, reference is made to the expert opinion of the expert Dipl.-Ing. S. of 4.3.2014 and to his supplementary expert opinion of 5.8.2014.
For further details, reference is made to the exchanged written submissions and annexes.
Reasons for the decision:
(Weighing up the contributions to fault)
The admissible action is well-founded to the extent tenor. It is otherwise unfounded.
The plaintiff is entitled to claim damages from the defendants in the amount of € 642.89 in accordance with §§ 18 StVG, 115 VVTG. The plaintiff must allow the operating risk of her own vehicle to reduce her claim (Section 17 (2) StVG). The accident does not constitute an unavoidable event for either party within the meaning of § 17 Para. 3 StVG. The obligation of one party or the other to pay compensation is not excluded from the outset. Neither the plaintiff nor the defendants were able to prove that the accident was unavoidable for the respective driver.
In such cases, the obligation to pay compensation and the extent of the obligation to pay compensation depend on the circumstances, in particular on the extent to which the damage was primarily caused by one or the other party, in accordance with Section 17 (1) and (2) StVG, which also apply to the driver’s obligation to pay compensation in accordance with Section 18 (3) StVG. When weighing up the shares of causation and fault of the drivers of the vehicles involved, taking into account the operational hazards posed by both motor vehicles in accordance with Section 17 (1), (2) of the Road Traffic Act, the circumstances that have been proven must be taken into account, whereby the rules of prima facie evidence also apply.
The plaintiff was not able to prove that the defendant 2) did not comply with the speed limit of 30 km/h in the construction site area and hit the plaintiff’s vehicle with the defendant’s vehicle due to carelessness. Conversely, the defendants were also unable to prove that the witness K. violated § 8 StVO.
Witness K. confirmed the course of the accident as described by the plaintiff, while defendant 2), who was heard on informational grounds, confirmed the course of the accident as described by the defendant. Defendant 2) stated that the damage to the defendant’s vehicle was only on the front right, i.e. on the front passenger side. On the plaintiff’s vehicle, the damage was only on the left rear. By this he meant that the location of the collision on the plaintiff’s vehicle was on the left rear side. Conversely, the witness Karimian stated that the defendant vehicle had hit the rear of the plaintiff vehicle head-on. By this he meant that the vehicles had not been offset in any way, but had been exactly behind each other. Both accounts of the accident appear to be equally plausible and comprehensible and are not contradictory in themselves. Both the witnesses K. and the defendant 2) are the drivers of the vehicles involved in the accident, so that both have an equal interest in the outcome of these proceedings. The court is not in a position to say who it believes.
The expert Dipl. Ing. S. was also unable to clearly reconstruct the course of the accident due to a lack of sufficient connecting factors (insufficient documentation of the damage to the plaintiff’s vehicle, no knowledge of the defendant’s vehicle). He came to the conclusion that the accident could have happened as described by the plaintiff, but also as described by the defendant. The court agrees with these comprehensible statements by the expert. No objections to the expert opinion were raised by the parties, nor are any other objections apparent.
Weighing up the mutual contributions to causation in accordance with Section 17 (1) and (2) StVG leads to the conclusion that liability must be shared. As the course of the accident cannot be clarified, the operating risks of the vehicles involved must be weighed against each other, which the court considers to be equally high.
The plaintiff can demand 50% of the net repair costs, i.e. € 630.39. She is also entitled to € 12.50, namely 50% of the lump sum for expenses, which the court has consistently estimated at € 25.00 in accordance with Section 287 ZPO. Together, this results in the tenor amount.
The interest claim exists in accordance with §§ 280, 286, 288 BGB.
The claim for reimbursement of the lawyer’s fees (1.3 times the business fee plus a lump sum for expenses at the value in dispute of € 642.89) is based on Section 249 BGB.
The claim for interest therefore exists in accordance with Sections 288, 291 BGB. Applying Section 187 (1) BGB accordingly, interest was to be awarded on the legal fees since 28.11.2012.
The procedural ancillary rulings are based on §§92 Para. 1 S. 1 Alt. 2 ZPO, 708 no. 11, 711 ZPO.
The amount in dispute is set at € 1,286.35.
Expert’s fee as part of the accident damage pursuant to Section 249 (2) BGB; full reimbursement obligation of the tortfeasor/his motor vehicle liability insurance if determination is not recognizably arbitrary or incorrect
In its ruling of December 1, 2014, the Cologne Local Court (Amtsgericht Köln) – case no. 262 C 74/14 – decided that expert costs are part of the expenses that an accident victim can claim from the liable party in accordance with Section 249 (2) BGB. In the case of a private expert opinion commissioned by the injured party, the expert fee is only not to be reimbursed in full if there are recognizable gross and obvious inaccuracies or if the expert sets his fee arbitrarily.
In the present case, the motor vehicle insurance company of the liable party reduced the expert’s fee without providing any further information.
The judgment in detail:
The Local Court of Cologne ruled in favour of the plaintiff in simplified proceedings pursuant to Section 495a of the German Code of Civil Procedure (ZPO) with a deadline of 20.10.2014:
The defendant is ordered to pay the plaintiff € 93.18 plus interest in the amount of 5 percentage points above the respective base interest rate since April 1, 2014.
The remainder of the action is dismissed.
The defendant is ordered to pay the costs.
The judgment is provisionally enforceable.
The facts of the case are not presented in accordance with Section 313 a I 1 ZPO.
Reasons for the decision:
The action is largely well-founded (with regard to the principal claim in its entirety, with regard to the interest claim with restrictions concerning the start of payment).
The plaintiff has a claim against the defendant for payment of the remaining expert costs in the amount of € 93.18 in accordance with §§ 7 I, 18 I and III StVG, in conjunction with § 115 I No. 1 VVG. § 115 I No. 1 VVG.
The plaintiff is entitled to assert the claim in dispute. Although he originally assigned the asserted claim for reimbursement of accident-related expert costs to the expert’s office or its clearing office, the letters from the DVSK dated December 19, 2013 and the GTVAU dated March 15, 2014 submitted as attachments to the file show that a reassignment to the plaintiff has since taken place. The declaration of acceptance on the part of the plaintiff is evident from the fact that the plaintiff has filed or continued the present action with reference to this declaration of reassignment.
The defendant’s full liability for the accident in question is undisputed on the merits. The damage items eligible for compensation within the scope of § 249. II 1 BGB also include the expert costs incurred by the injured party for the preparation of a damage report. In this case, the defendant was not entitled to the deductions it made from the invoice of the expert’s office B., because in addition to the contribution already paid prior to the proceedings, the further expert costs claimed by the plaintiff were eligible for compensation to the extent awarded.
Expert costs are among the expenses that an injured party can demand compensation for from the injuring party or their liability insurance in accordance with Section 249 II BGB. The amount of this claim is limited to the necessary amount of money, i.e. to the application that a reasonable, economically sensible person in the injured party’s situation could consider appropriate and necessary. In cases in which the injured party himself claims the expert costs incurred or to be incurred by him against the injuring party/liability insurer, the latter does not have easy access to the expert’s billing basis, and in particular has no prior knowledge of the necessity and reasonableness of the amount of the expert costs charged. As long as it is therefore not recognizable to the injured party as a layperson that an expert sets his fee almost arbitrarily, i.e. price and performance are not in any conspicuous disproportion to each other, and as long as the injured party himself is not at fault for the selection or has not caused any gross and obvious inaccuracies in the appraisal or remuneration invoice, he can demand compensation from the injuring party for the expert costs invoiced to him. The expert is not the vicarious agent of the injured party. The injured party himself cannot be expected to make inquiries or compare prices before commissioning the expert, nor can he be expected to subsequently check whether the expert’s invoice as a whole or with regard to the ancillary claims was prepared correctly. Therefore, if the injured party complies with the scope of what is necessary for recovery, neither the injuring party nor the court in the compensation proceedings are entitled to carry out a price check.
Accordingly, the plaintiff was entitled to refer to the invoice of his expert office B. in the present case.
On the other hand, the defendant could not successfully claim that certain ancillary costs were not reimbursable at all, such as the writing costs, the EDP retrieval costs or the Auda VIN query. This is because it is not apparent to the plaintiff as a layperson that these could be items that would not fall within the reimbursable scope of an expert’s billing, especially since the designation of these items is certainly related to the preparation of the expert opinion. In this respect, the layman would be unable to determine whether, for example, in the area of IT costs, items are invoiced here that are already included in the basic fee. This is a question of legal assessment – a layperson who is not familiar with the subject matter cannot easily recognize this with certainty.
The question of whether individual ancillary cost items exceed the relevant framework according to the BVSK fee survey cannot be assessed by a layperson either.
Even in the abstract, the incidental costs as a whole are not disproportionate to the amount of the basic fee. They amount to a total of 26% of the total claim and are therefore still within reasonable limits, at least from a layman’s perspective.
Nor is the defendant unreasonably disadvantaged here. This is because it is at liberty to reimburse the expert costs in the event of settlement by the injured party/client, subject to the assignment of any claims against the expert’s office.
The claim for interest is based on Sections 286, I 288 I BGB. The defendant fell into arrears on expiry of the deadline of 31.03.2014 set in the letter of demand from the plaintiff’s legal representative dated 15.03.2012.
In contrast, the plaintiff cannot already demand interest payment since 06/09/2013. This is because the defendant’s letter dated 6 September 2013 does not yet contain a serious and final refusal to pay within the meaning of Section 286 II No. 3 BGB. Rather, this letter merely lists the items that the defendant is prepared to pay. The expert fee recognized by it is quantified. From this letter, however, it was not yet clear to the plaintiff that the defendant would seriously and definitively refuse further payments, i.e. that a corresponding additional claim would have no prospect of success from the outset. It was not until the letter dated April 2, 2014 that the defendant expressed its refusal to make any further payments. At this point in time, however, the plaintiff was already in default, as explained above.
The procedural ancillary rulings are based on §§ 92 II No. 1; 708 No. 11; 713 ZPO.
There is no right of appeal against this judgment as the appeal value has not been reached.
Value in dispute: € 93.18
Impermissible deductions from expert fees, Section 249 (2) sentence 1 BGB
In the legal dispute, the Cologne Local Court ruled in favour of the plaintiff in simplified proceedings pursuant to Section 495a ZPO without an oral hearing on 12.02.2016:
- 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 (according to §313a para. 1 ZPO)
Reasons for the decision:
The admissible action is well-founded. The plaintiff has a claim against the defendant for payment of the tenor amount 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 minimize damages by commissioning the expert’s office. The defendant therefore also has to reimburse the further costs for the expert’s report commissioned by the plaintiff as costs necessary to determine the damage.
The plaintiff was able to commission an expert to estimate the amount of damage to his car damaged in the accident and can demand compensation from the defendant for the objectively necessary expert costs as production costs 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 for remedying 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 (see 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 damaging party or to behave in any case as if he had to bear the damage himself (see BGH, judgment of April 29, 2003 – VI ZR 393/02 -, juris). Therefore, when examining whether the injured party has kept the effort to remedy 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 for him (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 fees (see BGH, judgment of February 11, 2014 – VI ZR 225/13 -, juris, with further references). The injured party regularly satisfies its burden of proof regarding the amount of damages by submitting an invoice from the expert it has engaged to rectify the damage. The actual amount of the invoice is an essential indicator for determining the amount “necessary” for the repair within the meaning of Section 249 (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 consideration of the facts (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 within the meaning 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 to reflect the necessary expenses (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 and the price agreement on which it is based, unless this is clearly recognizable to the injured party as being considerably higher than the usual prices. 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 which deprive the invoice of its indicative significance for the necessity of the expenses (see BGH, judgment of May 7, 1996 – VI ZR 138/95 -, juris). Such circumstances, which were recognizable for the plaintiff, have not been presented here.
The considerations used by the defendant to reduce the expert costs claimed by the plaintiff cannot be reconciled with these principles, even in the context of the freer position of the court with jurisdiction when assessing 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 damage expert 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 tort 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. The plaintiff was not obliged to search for an expert with a more favorable fee offer vis-à-vis the defendant. The plaintiff also 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 fee or the case law on this topic. However, this means that 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.
The defendant would therefore have had to demonstrate and prove in the present case that the injured party breached its duty to mitigate damages under Section 254 (2) sentence 1 case 2 BGB by failing to take measures to remedy the damage that a reasonable and prudent person would have taken to mitigate the damage. However, the mere fact that the ancillary costs invoiced by the damage 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 February 11, 2014, VI ZR 225/13 -, juris, with further references). There are also no other indications that the plaintiff could have recognized an overstatement of the claim.
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.
Value in dispute: EUR 132.20
Decision on the admission of the appeal:
As this decision means that neither party has reached the threshold of over EUR 600.00 for an appeal, the court must use its discretion to consider whether to allow the appeal, Section 511 (4) ZPO. Accordingly, the appeal was not allowed because the case was decided solely on the basis of the circumstances of the present case and therefore neither has fundamental significance nor does the further development of the law or the safeguarding of uniform case law require a decision by the court of appeal, Section 511 (2) no. 2 in conjunction with Section 511 (4) no. 1 ZPO. Para. 4 No. 1 ZPO.
Whiplash injury of the cervical spine/spine, requirements for the award of compensation for pain and suffering in the event of sprain of the cervical spine/spine
In the legal dispute heard by the Cologne District Court – case no. 266 C 170/14 – on July 27, 2015, the Cologne court dismissed the claim of the injured party for payment of compensation for pain and suffering due to an alleged cervical spine/spinal column distortion suffered in an accident.
The plaintiff claims that she suffered a cervical/spinal spine distortion as a result of a rear-end collision with the following vehicle on the defendant’s side. After the vehicle damage was settled out of court by the defendant’s liability insurance, she filed a lawsuit for compensation for pain and suffering and costs incurred in connection with the medical treatment.
The admissible action is unfounded.
- The plaintiff has neither a claim for payment of damages nor a claim for payment of compensation for pain and suffering against the defendant due to the traffic accident in dispute on March 22, 2014 on B. Straße. Such claims do not arise here in particular from § 7 Para.1,17,18,11STVG,823,249,252,253BGBI.V.m§115VVG.
- In this respect, the plaintiff is also not entitled to reimbursement of treatment costs or payment of a general lump sum for costs. A person injured in an accident can only claim compensation from the tortfeasor for the costs incurred as a result of a medical examination or treatment if the accident has led to bodily injury. The mere possibility or suspicion of an injury is not sufficient for this (BGH, judgment of September 17, 2013-VIZR95/13-,juris).nothing else can apply to other cost items in this respect either.
- The plaintiff could not prove that she suffered a distortion of the cervical vertebrae and lumbar spine with restricted movement as well as back pain and headaches, i.e. damage to her health, as a result of the accident in question. As this is the alleged primary injury, the plaintiff would have had to provide full evidence in this respect, § 286 ZPO. This applies regardless of whether or not the allegedly injured party can prove that an illness that occurred after the accident can be attributed to the accident due to the nature of the illness according to this standard (BGH, judgment of November 4, 2003-Vi ZR 28703-,jurius).According to § 286 ZPO, the court must decide whether a factual assertion is to be considered true or untrue, taking into account the entire content of the hearing. In doing so, the court may decide whether the fact to be proven is established with absolute certainty, i.e. whether every doubt and every possibility of the contrary is excluded, but must be satisfied with such a high degree of probability that a reasonable person with a clear understanding of the circumstances of life would no longer doubt the truth. It is therefore important that the court arrives at a degree of certainty that is useful for practical life and that silences doubt without completely excluding it (BGH, judgment of April 18, 1977-VIII ZR 286/75-,juris.).
- This degree of certainty has not been reached here. Rather, the court follows the convincing opinion of the court expert. In his written expert opinion dated April 23, 2015, the expert clearly stated that the mechanism of the accident meant that it could be ruled out with certainty that the plaintiff had suffered a cervical spine distortion as a result of the traffic accident on April 23, 2014. With regard to a cervical spine injury, the expert states that a slight grade I distortion of the cervical spine according to Erdmann could possibly have been caused by the accident with a very low degree of probability upon clarification. However, this is not sufficient to provide full evidence in accordance with Section 286 ZPO. In particular, it must be taken into account here that the plaintiff has suffered for years from recurrent moderate cervical and lumbar spine syndrome with slight muscular tension as well as headaches for years. In addition, the course of the plaintiff’s complaint of severe pain is classified by the expert as atypical. The hospital’s and doctor’s reports of findings close to the accident only describe the plaintiff’s pain and do not contain any objectifiable pathological findings. Both diagnoses are therefore to be regarded as suspected diagnoses which could not be confirmed by the expert after the intensive study of the course of the accident and the precise knowledge of the accident-related change in speed.
- The court fully agrees with the expert’s convincing explanations. As a specialist in orthopaedics, he is to be regarded as particularly qualified for the present expert opinion. The expert opinion is coherent in itself. In particular, it is also comprehensible for a medical layperson. The expert assumed correct facts in his assessment. In particular, the expert subjected the plaintiff to a detailed examination. In particular, the plaintiff’s spine and shoulders were examined in detail. The conclusions drawn from these facts are logical and consistent. In particular, the plaintiff did not raise any objections to the expert opinion.
- The ancillary claims cannot be awarded due to the lack of existence of the main claim.
- The decision on costs is based on Section 91 (1) sentence 1 ZPO. The enforceability decision is based on sections 708 no. 11, 711
€ 25.00 flat rate for accident costs even in the case of minor accidents; the injured party does not have to present any connecting facts for his damage; cost savings, e.g. through flat rates, are offset by general cost increases
The Local Court of Münster, like the Local Court of Cologne, holds that the injured party is entitled to a lump sum of € 25.00 for accident costs in traffic accident cases. Many insurers only pay € 20.00. In the lawsuit, the unpaid difference of € 5.00 was claimed and awarded by the Münster Local Court in its judgment of September 9, 2015 – case no. 3 C 2630/15
In the legal dispute, the Münster District Court ruled in favour of the plaintiff in simplified proceedings pursuant to Section 495a ZPO without an oral hearing on 23 September 2015, taking into account the written submissions received by the court by 9 September 2015:
The defendant is ordered to pay the plaintiff € 5.00 plus interest at a rate of 5 percentage points above the respective prime rate since July 7, 2015. The defendant shall bear the costs of the legal dispute.
The judgment is provisionally enforceable.
The amount in dispute was set at € 5.00.
Reasons for the decision:
(The facts of the case will not be presented in accordance with Section 313a (1) ZPO).
- The plaintiff has a claim against the defendant for payment of a further € 5.00 from § 7 StVG, § 249 BGB, § 115 VVG:
a. In addition to the further damages already settled, the plaintiff is also entitled to compensation for his other costs, which he can assert with a lump sum for costs. Insofar as the defendant, referring to a judgment of another division of the Münster Local Court, is of the opinion that there is no entitlement to this lump sum in the case of a “minor accident”, this can be left open in the present case: According to the defendant’s settlement letter, the repair costs alone amounted to more than € 2,899, so that the damage is by no means merely minor.
b.The court is also not of the opinion that the injured party must present specific connecting facts for his damages. The lump sum for expenses is recognized in case law precisely because the lump sum for numerous damage items of minimal amounts can avoid lengthy disputes over penny amounts. The cited decision of the Federal Court of Justice from May 8, 2012 (case no. VI ZR 37/11) does not change this, as the Federal Court of Justice expressly stated: “To the extent that, with regard to such costs in the settlement of traffic accident claims, detailed submissions are regularly dispensed with and the case law awards the injured party a lump sum for expenses, even if connecting facts for this are not presented in the specific individual case, this is due to the fact that the settlement of traffic accidents is a mass business (see Senate, NJW 1978, 2506= VersR1978, 278 and BGHZ 178, 228 = NJW 2009, 910 Rdnr.17), is particularly important from the point of view of practicability.” According to the long-standing case law of the Local Court and the Regional Court of Münster, the flat-rate costs amount to € 25.00. There is no reason to reduce the flat rate to € 20.00: It is true that the spread of flat rates and the possibility of using electronic means of communication may have led to savings in some areas. However, these savings are offset by price increases in other areas (postage, local public transport) and the volume of communication required to process a claim has also increased. For example, the defendant also attaches great importance to the injured party finding out about the price level in the car rental sector before renting a replacement vehicle. - The claim to interest follows from Sections 286, 288 BGB. The decision on costs follows from Section 91 ZPO, the decision on provisional enforcement from Sections 708 No. 11, 713 ZPO. There was also no reason to allow an appeal against the judgment pursuant to Section 511 (4) ZPO.
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