Decision: DECISION

Field(s)

Court type OLG

Place of jurisdiction Koblenz

Date 26.05.2011

File number 10 U 1258/10

Title AKB; No. I 1 Special Conditions for Liability and Vehicle Insurance for Motor Vehicle Dealers and Tradesmen; Liability for Performance or Damages ZPO § 4, GKG §§ 39, 45 Para. 1 Sentence 2 - "Contingent Action Increase".

Text

Case number: 10 U 1258/10 16 O 519/09 Regional Court Koblenz

UPPER REGIONAL COURT

KOBLENZ

NOTICE RESOLUTION
(pursuant to section 522 (2) sentence 2 ZPO)

in the litigation

Plaintiff and appellant,
Attorney at law: Rechtsanwalt

g e n

1.
2.
3.
Defendant and appellant,
Legal representatives: Attorneys-at-law

The 10th Civil Senate of the Higher Regional Court Koblenz, by the Presiding Judge at the Higher Regional Court Weiss, the Judge at the Higher Regional Court Schwager-Wenz and the Judge at the Higher Regional Court Dr. Janßen
on 4 April 2011
unanimous
decided:

The Senate considers dismissing the appeal pursuant to section 522 (2) sentence 1 ZPO. The reasons are set out below. The plaintiff is set a deadline of 13 May 2011 to comment.

In the opinion of the senate, the requirements under section 522 (2) sentence 1 of the Code of Civil Procedure are met. The case is not of fundamental importance. Nor does the further development of the law or the safeguarding of uniform case law require a decision by the court of appeal.
The appeal also has no prospect of success:
The judgment of the Regional Court corresponds to the legal situation and does not contain any errors. The findings made are complete and do not justify a different decision:

The Regional Court rightly and correctly dismissed the action. The plaintiff has no claim for damages against the defendants because of the breach of the duty to advise alleged by it, since the damage asserted by it would also have occurred if this alleged breach of duty had not occurred, but an insurance contract for comprehensive insurance had existed with the defendants for the red licence plate at issue in this case. The Regional Court correctly stated that in this case, too, insurance cover would not have existed for the damage to the caravan. In order to avoid repetition, reference is made to the reasons for the decision of the Regional Court. The arguments in the grounds of appeal also do not give rise to a different assessment.

Contrary to the plaintiff's opinion, it is irrelevant for what reason the red number plate was removed from the vehicle, whether it was intended to put it back on the next morning and whether the vehicle without the red number plate was parked in the public traffic area or on a private area protected against access by unauthorised persons. The insurance conditions - Special Conditions for Third Party Liability and Vehicle Insurance for Motor Vehicle Dealers and Tradesmen - which are usually agreed for red number plates are unambiguous in their regulation. According to these, the insurance covers vehicles if and as long as they are provided with a red number plate assigned to the policyholder by the registration office. "Being provided" means that the number plate must be attached to the vehicle and visible from the outside. Therefore, there is no insurance cover if the number plate is removed overnight in order to secure it and the vehicle is stolen or destroyed during this time (Prölss/Martin/Knappmann VVG, 27th ed. Sonderbedingungen zur Haftpflicht- und Fahrzeugversicherung f. Kfz-Handel und -Handwerk Rdn. 2). The circumstances presented by the plaintiff, with which she wants to achieve a deviating assessment, are not listed in the insurance conditions to be treated as deviating. They would also not be suitable to establish insurance cover for the plaintiff despite the removal of the red number plate if a corresponding insurance policy had been concluded between the parties. The only decisive factor is the necessary legal certainty guaranteed by the affixing requirement.

The Senate envisages setting the amount in dispute at € 39,000.

Weiss Schwager-Wenz Dr Janssen

Business number:
10 U 1258/10
16 O 519/09 Regional Court Koblenz

UPPER REGIONAL COURT

KOBLENZ

DECISION

(pursuant to section 522 (2) sentence 1 ZPO)

in the litigation

Plaintiff and appellant,
Litigants:

g e n

Defendant and appellant,
Litigants:

The 10th Civil Senate of the Higher Regional Court of Koblenz, by the Presiding Judge at the Higher Regional Court Weiss, the Judge at the Higher Regional Court Schwager-Wenz and the Judge at the Higher Regional Court Zeitler-Hetger
on 26 May 2011
unanimous
decided:

The plaintiffs' appeal against the judgment of the 16th Civil Chamber of the Regional Court of Koblenz of 30 September 2010 is dismissed.

The applicant shall bear the costs of the appeal proceedings.

G r ü n d e :

In its order of 4 April 2011, the Senate pointed out that the case was not of fundamental importance, that the further development of the law did not require a decision by the Court of Appeal and that the appeal had no prospect of success.

The appellant did not submit an opinion on the references. It only objected to the announced determination of the amount in dispute.

The appeal is to be dismissed pursuant to § 522 para. 2 sentence 1 ZPO. The Senate adheres to its advice and also refers to it for the reasoning of its final decision (§ 522 para. 2 sentence 3 ZPO).

The decision on costs is based on section 97 (1) ZPO.

The determination of the amount in dispute shall be made by separate order, as the defendants must still be granted a hearing on the plaintiff's objections to the announced determination of the amount in dispute.

Weiss Schwager-Wenz Zeitler-Hetger
Business number:
10 U 1258/10
16 O 519/09 Regional Court Koblenz

UPPER REGIONAL COURT

KOBLENZ

DECISION

in the litigation

Plaintiff and appellant,
Litigants:

g e n

Defendant and appellant,
Litigants:

The 10th Civil Senate of the Higher Regional Court of Koblenz, by the Presiding Judge at the Higher Regional Court Weiss, the Judge at the Higher Regional Court Schwager-Wenz and the Judge at the Higher Regional Court Zeitler-Hetger
on 11 July 2011
decided:

The amount in dispute for the appeal proceedings is set at € 5,001.

G R O N D E:

The value in dispute for the appeal proceedings is only to be assessed with the value of the part of the claim asserted by the plaintiff with the main application. An aggregation with the remaining amount of the total claim of € 33,999, which was introduced into the legal dispute by way of the "auxiliary motion", does not take place, since a decision on this has not been made (§ 45 (1) sentence 2 GKG) and could not be made in the present proceedings. The way of filing the application chosen by the plaintiff, which aims at ultimately obtaining an awarding decision on the entire alleged claim without incurring the necessary costs, is inadmissible in the opinion of the senate. The claims asserted are not in a contingent relationship to each other, i.e. the plaintiff does not seek either the claim sought with the main application or the claim sought with the auxiliary application, but she basically wants a positive decision on the entire claim asserted by her in this lawsuit. In the event of a negative decision, she wants to keep open the possibility of asserting the rest of the claim in renewed (partial) proceedings. Even in the case of a positive decision on the €5,001, this alone would therefore have to be decided, and further claims would not be validly pending.

Weiss Schwager-Wenz Zeitler-Hetger

Source: Rhineland-Palatinate Judiciary