11/25/2020 – After a poorly installed pane of glass broke, the insurer had the damage repaired and wanted the company that caused the defect to reimburse the costs. The Supreme Court decided: The insurance company should have given the company the opportunity to repair the damage itself.
The defendant company made an assembly error in the course of a conversion in a school: A 500-kilogram pane of glass that it had installed in the gymnasium broke three years later. The school maintainer was insured against glass breakage with the plaintiff.
Without informing the company of the damage, the insurer had it repaired by a third party. He then issued the invoice to the defendant company. They refused to pay because they had no way of repairing the damage themselves.
The insurer sued. A first instance judgment in favor of the claim was overturned by the appellate court, precisely because the insurer had not given the defendant company the opportunity to improve the damage itself.
Accordingly, the insurer should only demand the amount that the defendant company would have had to spend to repair the damage. However, no statement is made regarding the amount of this. The insurer appealed, the Supreme Court (Supreme Court) rejected this.
Deficiency or consequence of deficiency?
According to the Supreme Court, the difference between deficiency and consequential damage is crucial. Consequential damage caused by a defect is damage that is caused by a defect but does not only consist in the existence of the defect itself.
If someone hands over a defective item, the transferee can claim compensation. Because of the defect itself, he could initially only request its improvement or the replacement of the matter; the handover should be given a second chance. This principle of “priority for improvement” does not apply to consequential damage caused by defects.
The costs of eliminating the defect are not consequential damage because they arise from the defect itself. For consequential damage caused by a defect, in addition to the defect itself, there must also be an external influence, for example an accident due to a defective brake.
External influences on the glass pane were neither alleged nor determined. Their break is only based on the defect itself. The appellate court correctly decided that the insurer may only claim the amount that the company that made the mistake would have had to spend.
The decision in full text
The Supreme Court decision 6Ob81/20k dated September 16, 2020 is available in full in the federal legal information system.