Judgement of 12 March 2024 - VI ZR 280/22

The VI. Civil Senate, which is responsible for legal disputes concerning claims arising from accidents, among other things Civil Senate has applied the principles on workshop risk further developed in its judgements of 16 January 2024 - VI ZR 253/22 and VI ZR 239/22 (press release no. 7/2024) to excessive cost estimates of an expert commissioned by the injured party to assess their vehicle to determine the accident-related damage.

Facts of the case:

A car was damaged in a traffic accident for which the defendant, as the other party's liability insurer, is fully liable. The owner of the car commissioned the plaintiff, owner of an expert's office, to assess the car involved in the accident and at the same time assigned his claims for damages against the defendant to the plaintiff. The defendant reimbursed the costs for the expert opinion with the exception of the item "Corona protection surcharge" of € 20 invoiced by the plaintiff. The plaintiff justified this invoice item by stating that it had had to purchase disinfectant, disposable cleaning cloths and disposable gloves in particular. In the lawsuit, she demanded that the defendant be ordered to pay € 20 plus interest.

Process to date:

The local court dismissed the claim and the regional court dismissed the plaintiff's appeal. It was of the opinion that a "coronavirus lump sum" could not be charged separately by the expert.

Decision of the Senate:

The plaintiff's appeal was successful. The judgement of the Court of Appeal was set aside and the case was referred back to the Court of Appeal for a new hearing and decision.

In principle, the injured party was entitled to a claim against the defendant for reimbursement of the costs of the expert opinion obtained, as he is in principle entitled to commission a qualified expert of his choice to prepare the expert opinion on the damage. This claim has been transferred to the plaintiff expert's office through the assignment.

The principles on workshop risk, which the Senate developed further in its judgement of 16 January 2024 - VI ZR 253/22 for excessive cost estimates of a workshop for the repair of the damaged vehicle, can be applied to any excessive cost estimates of a motor vehicle expert. This is because there are limits to the injured party's ability to recognise and intervene not only in the contractual relationship with a repair workshop, but also in the contractual relationship with a motor vehicle expert, especially as soon as the injured party has commissioned the expert opinion and placed the vehicle in the hands of the expert. Accordingly, in the relationship between the injured party and the injuring party, those invoice items are also eligible for compensation which, through no fault of the injured party, are unreasonable, for example due to excessive material or labour costs or due to improper or uneconomical working methods, and are therefore not necessary for production within the meaning of Section 249 (2) sentence 1 BGB. In the case of a motor vehicle expert who calculates his basic fee not according to hours but according to the amount of damage, an estimate that is not recognisably excessive for the injured party can also be considered, for example, if the expert incorrectly overestimates the damage. Additional expenses in this respect are then also eligible for compensation, as are invoice items that relate to measures not actually carried out in connection with the appraisal, which were not recognisable to the injured party. However, the injuring party can demand the assignment of any existing claims of the injured party against the expert within the framework of the compensation of benefits.

The application of the aforementioned principles on workshop risk to the expert's costs does not require that the injured party has already paid the expert's invoice. However, if the injured party has not paid the invoice, he may - if he does not wish to bear the workshop risk or, in this case, the expert risk himself - demand payment of the expert costs not to himself, but only to the expert, concurrently with the assignment of any claims (relating to this risk) of the injured party against the expert. The same principles apply in this respect as for the repair of the damaged vehicle.

However, if the expert has had the claim for damages of the injured party assigned to him in the amount of the fee claim, he cannot invoke the expert risk as the assignee. The principles developed in this respect in the Senate judgement of 16 January 2024 - VI ZR 239/22 apply accordingly to the expert.

Since in the present case the plaintiff (owner of the expert's office) is proceeding on the basis of the injured party's assigned right, it cannot invoke the expert's risk. Rather, it must demonstrate and, if necessary, prove that the coronavirus protection measures invoiced with the lump sum were actually carried out and were objectively necessary and that the amount of the lump sum does not exceed what is necessary.

When assessing whether the corona protection measures implemented were objectively necessary, it must be taken into account that an expert as a contractor must be granted certain room for manoeuvre with regard to his individual hygiene concept during the corona pandemic. This is not only about the protection of the expert and his employees from infection with the coronavirus, but also about the protection that the client of the respective appraisal may expect during the pandemic with regard to measures that are carried out in his vehicle, usually or due to customs during the pandemic; meeting these expectations is a legitimate concern of the expert. There are also no fundamental objections to the fact that the plaintiff calculated the Corona flat rate separately. A motor vehicle expert is free to charge ancillary costs, including in the form of lump sums, for expenses actually incurred in addition to a basic fee for his actual expert work. The business decision as to whether the costs incurred for the hygiene concept in the coronavirus pandemic are recognised separately or "priced in" as internal costs in the calculation of the basic fee is in principle the responsibility of the expert as an entrepreneur; only the two may not be cumulative.

Lower courts:

Local Court Nordhausen - Judgement of 5 January 2022 - 26 C 357/21

Mühlhausen Regional Court - Judgement of 7 September 2022 - 1 S 12/22

The relevant provisions of the German Civil Code (BGB) are as follows:

§ Section 249 Type and scope of compensation

(1) Whoever is obliged to pay compensation must restore the condition that would exist if the circumstance obliging compensation had not occurred.

(2) If compensation is to be paid for injury to a person or damage to an object, the creditor may demand the amount of money required for this purpose instead of production. (...)

§ Section 398 Assignment

A claim can be transferred from the creditor to another creditor by contract (assignment). Upon conclusion of the contract, the new creditor takes the place of the previous creditor.