8.2.2021 – In principle, an injured party cannot be required to use his fully comprehensive insurer until a decision is made by the opposing liability insurer in order to be able to dispose of his vehicle again as quickly as possible. The Brandenburg Higher Regional Court decided on February 27, 2020 (12 U 86/18).
The plaintiff was involved in a rear-end collision with her car at the end of August 2017 through no fault of her own.
According to the findings of an expert, the repair costs should be around 14,000 euros. She was unable to raise this amount from her own resources. She was also unable to get a loan because of the ongoing repayment of a loan on her home.
No payment of the repair costs
Therefore, her lawyer turned to the insurer several times, explaining the financial circumstances of his client. In vain he asked him to send the workshop a confirmation that he was ready to pay the repair costs.
In the end, the woman was forced to ask her fully comprehensive insurer to give the workshop a cover letter. Only then did the repairs begin.
Because of the back and forth, the car driver was ultimately only able to have her car again on December 11th. She therefore asked the insurer to pay her compensation for loss of use for a period of 105 calendar days.
He thought the demand was completely excessive. Although he had never declared his willingness to assume the repair costs despite the clear legal situation, he claimed that the plaintiff should have made use of its comprehensive insurer much earlier. Because that did not happen, she violated her duty to minimize damage.
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The sense and purpose of comprehensive insurance
But the Brandenburg Higher Regional Court did not agree. The woman’s complaint was accepted. An injured party is not entitled to make the issuing of a repair order dependent on a confirmation of the cost of repair from the opposing insurer.
However, this does not apply in cases in which he substantiates that he is unable to finance the repair costs from his own resources. However, the lawyer pointed this out several times in vain.
The motorist could not be held responsible for not having used her comprehensive insurer immediately. In principle, injured parties could not be required to ask their comprehensive insurer for a cover letter in parallel to making claims against the opposing liability insurer.
The sense and purpose of comprehensive insurance is not to relieve the injuring party or his insurer. The court saw no reason to allow an appeal against his decision.
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