May 21, 2021 – A 17-year-old had no driving license when she caused a total loss in her father’s car. The fact that the father did not have his driver’s license presented could not be blamed on him in an intact family. The Supreme Court ruled that he was allowed to trust his daughter when she claimed to have passed the driving test. The fully comprehensive insurer must cover the damage.
The 17-year-old daughter of the plaintiff was about to get her driver’s license as part of the L17 training. Together with her father, she had already completed the 3,000-kilometer training drive, but she hadn’t passed the theory test.
She had kept this from her father, however; she pretended to take the practical driving test during his vacation, which can only be taken after passing the theory test. When her father asked whether she had passed the exam, she answered “yes”.
The father had to break off this vacation, his brother was seriously ill and died a short time later. During another vacation of the father, despite the prohibition and without his knowledge, the daughter started his car and caused an accident in which a total loss occurred.
Breach of obligation not recognizable
The father had taken out a fully comprehensive insurance contract for this car. According to the conditions, the insurer was generally exempt from payment if a driver did not have a driving license.
However, this breach of duty should not have any consequences if it was not recognizable to the policyholder through no fault of his own.
The proof of this lies with the policyholder, according to the lower courts, he also succeeds: The relationship between father and daughter was basically good, he had no reason to assume that she was lying to him. He was allowed to trust his daughter’s statement.
He was also burdened by his brother’s illness. In this exceptional situation, he cannot be blamed for not paying more attention to the driver’s license. In addition, the daughter had deceived everyone around her, including her sister and a friend, about this issue.
Revision of the insurer rejected
The lower courts therefore decided that the insurer was obliged to provide benefits. This assessment is not objectionable, emphasizes the Supreme Court (OGH).
Detailed determinations were made about the circumstances. In its revision, the insurer claimed that these were inadequate; for example, precise dates were missing. However, this has no legal significance.
According to the Supreme Court, strict requirements must be placed on the proof of the policyholder’s innocence. Failure to request a driver’s license could not be charged as fault under all circumstances.
The express declaration of a 17-year-old child that they have a driving license is sufficient in an intact family and after completing the training drives. Without evidence of a lack of trust, one of the parents does not have to have their driver’s license presented.
The revision was rejected due to the lack of a significant legal question.
The decision in full text
The Supreme Court decision 7Ob49 / 21p dated March 24, 2021 is available in full in the federal legal information system.
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