The Federal Supreme Court continues to be of the opinion that an injured motor vehicle owner can claim compensation for his damage from the motor vehicle liability insurance company on the basis of a cost estimate or an expert opinion. It does not matter whether he actually has the damage repaired, whether he repairs it himself or sells the damaged car. He is also not obliged to choose the cheapest repair shop in the region or to accept a deduction up to an abstract average value if he has his car repaired in a specialist workshop specialised in his make or if the expert calculates the damage on the basis of such a workshop.
Therefore, in its judgement of 29.04.2003 (Ref.: VI ZR 398/02), the BGH awarded a Porsche driver the entire amount which the expert had determined in an expert opinion on the basis of the wage costs of a 'Porsche Centre' in the amount of DM 30,683. The insurance company had only paid an amount of DM 25,425; it justified this with a lower wage factor, which it based on average hourly rates customary in the locality and which had been determined by DEKRA with the inclusion of all representative brand and independent specialist workshops.
According to the Federal Supreme Court, the abstract average of the hourly rates of all representative brand and independent specialist workshops in a region cannot be taken into consideration as the basis for calculating the damage if the injured party settles fictitious repair costs. In particular, the injured party could not reasonably be expected to make enquiries regarding the repair shop experience for the repair of the respective vehicle brand and to obtain corresponding price quotations. It should also not play a role in the calculation of the damage that the injured party had sold the Porsche on unrepaired and that the costs claimed for the repair of the damage had therefore not been necessary. Such an approach inadmissibly interfered with the injured party's freedom of disposition with regard to the use of the damages.
The new fundamental ruling of the Federal Court of Justice of 29 April 2003, which is also of importance for expert opinions, is published below in its wording:

Guiding principles:

The injured party who settles fictitious repair costs may base the calculation of the damage on the hourly billing rates of a brand-affiliated specialist workshop. The abstract average of the hourly rates of all representative brand-name and independent specialist workshops in a region does not represent the amount required for repair as a statistically determined invoice figure.

Facts

The plaintiff seeks compensation for remaining property damage from a traffic accident, for the consequences of which the first defendant as the other party to the accident and the second defendant as the liability insurer are fully liable.
The plaintiff registered the vehicle she was driving at the time of the accident on 18 May 2000, a Porsche 968 Cabrio, first registered on 30 July 1993, in her name for the first time on 6 April 2000. After the accident, she had the car taken to the specialist workshop 'Porsche-Zentrum' W.. The expert B. inspected the vehicle there and estimated the repair costs at DM 30,683.30 gross. He based this on a wage factor corresponding to the hourly billing rates of the 'Porsche Centre' W.. The plaintiff did not have the vehicle repaired. She sold it on 29 May 2000 at a price of DM 10,200. She settled her damages on the basis of the expert's report at 30,683.30 DM. The defendant only paid DM 25,425.60. It based its calculation of damages on a lower wage factor than the expert on the basis of average hourly rates customary in the locality, which are determined by DEKRA with the inclusion of all representative brand and independent specialist garages in the region.
The plaintiff is of the opinion that she is entitled to compensation for the wage costs incurred at the 'Porsche Centre' in W.. She demands payment of the difference of DM 5,257.70 (Euro 2,688.22).
After obtaining a written expert opinion on the replacement value of the vehicle, the district court awarded the claim in its entirety. On appeal by the defendant, the Regional Court amended the judgement and dismissed the action. It allowed the appeal in view of the different assessment of the reimbursability of the repair costs in case of a fictitious settlement in case law and literature in order to further develop the law. The plaintiff continues to pursue her claim with the appeal.

Reasons for decision

The court of appeal held that a prerequisite for the award of fictitious repair costs was that they appeared to be economic in a strict sense. The plaintiff had neither disputed that a proper repair of the vehicle outside an authorised Porsche workshop was possible with the amount settled by the second defendant, nor had it shown that a higher reduced value would remain if the car were repaired elsewhere than if it were repaired in an authorised Porsche workshop. The plaintiff had not provided any further details on the 'previous life' of the car in terms of maintenance, although it had already been almost 7 years old at the time of the accident. The plaintiff therefore had to accept the economically more favourable option of having the car repaired at another specialised workshop - which did not necessarily have to be a so-called independent workshop. This was all the more true as the injured party who sold his vehicle unrepaired, waiving repair in a tied brand workshop, usually expressed his expectation with this behaviour that repair in a contract workshop was not worthwhile on balance because the market did not ultimately reward such an expensive repair accordingly. It should not be overlooked that a sale without repair could also have other reasons, namely a lack of financial means. However, such reasons were not apparent in the case in question.
The appeal judgement does not stand up to scrutiny by the appellate court.
(1) It is true that the court of appeal, in accordance with supreme court case law and the predominant legal opinion, in principle considers a claim of the injured party for reimbursement of the repair costs incurred in a brand-affiliated authorised workshop to exist irrespective of whether the injured party actually has the car fully repaired, has it repaired to an inferior standard or does not have it repaired at all (constant case law of the recognising senate, cf. Senate judgements, BGHZ 66, 239, 241; of November 1973 - VI ZR 163/72 - VersR 1974 - 331; of 22 November 1977 - VI ZR 119/76 - VersR 1978 235; of 5 March 1985 - VI ZR 204/83 - VersR 1985 593; of 20 June 1989 - VI ZR 334/76 - VersR 1978 235. June 1989 - VI ZR 334/88 - VersR 1989 1056; of 17 March 1992 - VI ZR 226/91 - VersR 1992 710 and of today, 29 April 2003 - VI ZR 393/02; cf. on this also Steffen, NZV 1991, 1, 2; ders. NJW 1995, 2057, 2062; id. DAR 1997; 297). Therefore, it correctly affirmed on the merits a claim by the plaintiff for reimbursement of the objectively necessary repair costs pursuant to § 249.2 sentence 1 BGB (§ 249 sentence 2 BGB old version), although the vehicle had not been repaired. This is because according to the cost comparison between repair costs and the costs for the procurement of a replacement, which must be carried out on the basis of the economic efficiency requirement in § 249.2 sentence 1 BGB when calculating fictitious repair costs (cf. Senate judgements of 5 March 1985 - VI ZR 204/83 - loc.cit. and BGHZ 115, 364, 373), the repair costs claimed by the plaintiff are still economic. Admittedly, if the residual value of DM 14,400 claimed by the defendants is deducted from the replacement value of the accident vehicle of DM 45,000 assumed on the basis of the expert opinion of the court-appointed expert L., the replacement cost of DM 30,600 is DM 83.30 less than the repair cost. However, taking into account that the plaintiff had actually only received DM 10,200 as the purchase price for the vehicle and that a considerably lower residual value than the one claimed by the defendants was therefore in question, the court of appeal, in agreement with the trial judge, rightly assumed on the basis of the discretion granted to the judge of the facts under § 287 ZPO when determining the amount of the damage that the plaintiff's settlement still basically complied with the requirement of economic efficiency under § 249 (2) sentence 1 BGB.
2 The court of appeal also correctly assumes this. With regard to a limitation of the amount of damage, however, it disregards the fact that the aim of compensation is total repair and that the injured party is free, according to the principles of damage law, both in the choice of means to remedy the damage and in the use of the compensation to be paid by the tortfeasor (cf. Senate judgements of 20 June 1989 - VI ZR 334/88 - VersR 1989 1056 f. as well as of today - VI ZR 393/02 - with further references).
3. this also applies in principle to fictitious repair costs.
a) Admittedly, from the point of view of the duty to minimise damage, the injured party is obliged to choose the more economic way of remedying the damage within the bounds of what is reasonable for him, provided that he can influence the amount of the costs to be spent on remedying the damage (cf. senate judgements BGHZ 115, 364, 368 f; 115, 375, 378; 132, 373, 376). However, it is generally sufficient that he calculates the damage on the basis of an expert opinion obtained by him, provided that the expert opinion is sufficiently detailed and shows the effort to do justice to the concrete case of damage from the point of view of an economically thinking observer (cf. Senate judgements of 20 June 1972 - VI ZR 61/71 - VersR 1972, 1024, 1025; of 20 June 1989 - VI ZR 334/88 - VersR 1989, 1056; of 21 January 1992 - VI ZR 142/91 - VersR 1992, 457, 458; on the risk of prognosis in general see Senate judgements BGHZ 63, 182, 185 f.; 115, 364, 370). In striving for an economically reasonable objectification of the need for restitution within the framework of § 249.2.1 BGB, the basic concern of this provision must not be lost sight of, that the injured party should receive the fullest possible compensation for damages in the event of full liability of the tortfeasor (cf. senate judgement BGHZ 132, 373, 376; Steffen, NZV 1991, 1,3; id. NJW 1995, 2057, 2062). Therefore, when examining whether the effort to remedy the damage is within reasonable limits, a subject-related consideration of the damage must be made, i.e. consideration must be given to the special situation of the injured party, in particular to his individual possibilities of knowledge and influence as well as to the difficulties that may exist for him in particular (cf. senate judgements, BGHZ 11.5, 364, 369; 115, 375, 378; 132, 373, 376 f.).
b)The considerations of the court of appeal are not compatible with these principles.
aa) Admittedly, the Court of Appeal can be supported in its view that the injured party who easily has access to a cheaper and equivalent repair option must allow himself to be referred to this option. However, the court of appeal did not establish the actual prerequisites for this.
According to the factual findings in the appeal judgement, the defendants neither disputed that the hourly rates set by the expert were actually incurred in the case of a repair in an authorised Porsche workshop nor did they complain about serious deficiencies in the expert's report. Under these circumstances, the plaintiff does not have to allow itself to be referred to the abstract possibility of technically correct repair in any less expensive third-party workshop, even from the point of view of the duty to mitigate damages.
The basis for calculating the repair costs required in a specific case of damage cannot be the abstract average of the hourly charge rates of all representative brand and independent specialist workshops in a region if the injured party settles fictitious repair costs. This opinion held by the court of appeal in agreement with some courts of instance (OLG Hamm, DAR 1996, 400; LG Berlin, Schaden-Praxis 2002, 390; AG Gießen, ZfSch 1998, 51; AG Wetzlar, Schaden-Praxis 2002, 391) cannot be followed. On the one hand, this is contradicted by the fact that the tortfeasor is obliged to fully repair the damage irrespective of the economic dispositions of the injured party, and on the other hand, a different view would restrict the possibility of the injured party to repair the damage on his own initiative, as provided for in § 249 para. 2 sentence 1 BGB. In addition, the realisation of a repair at the prices submitted by the defendants would require the injured party to show considerable initiative of his own, which he is not obliged to do (comparable in this respect to the settlement of rental car costs the senate judgements BGHZ 132, 373, 378 and to the determination of the residual value in the case of a deposit of the vehicle BGHZ 143, 189, 194). As a rule, it would be necessary to make enquiries regarding the workshop experience for the repair of the respective vehicle make and to obtain corresponding price quotations.
In the case in dispute, the plaintiff may therefore base the calculation of the damage on the hourly rates of the 'Porsche Centre' W. as the brand-affiliated specialist workshop in its vicinity, even if its hourly rates are higher than the wage rates for the region determined by DEKRA. It must also be taken into account that the average value calculated by DEKRA as a statistically determined figure does not represent the amount required for the repair.
bb) The reduction of the hourly rates cannot be justified by the further reasoning of the Court of Appeal that the plaintiff had not shown that it would have a (higher) reduced value if the vehicle had been repaired outside an authorised Porsche workshop than if it had been repaired in such a workshop. The plaintiff is neither obliged to make special statements in this respect due to the fact that the vehicle was already seven years old, nor is she obliged to present the 'previous life' of the car in terms of maintenance. If the way chosen by the injured party to remedy the damage complies with the requirement of economic efficiency pursuant to § 249 (2) sentence 1 BGB, the age of the vehicle alone does not justify any further burden of proof on the part of the injured party if the necessary repair expenditure is proven by an expert opinion. For the comparable problem in the assessment of the residual value of a vehicle in the settlement of damages, the recognising senate pointed out in the judgement of 30 November 1999 (BGHZ 143, 189, 194 with further references) that the tortfeasor has the burden of proof for the actual conditions of an exception which justifies the determination of the necessary costs for the repair of the damage deviating from the expert's report. Accordingly, if the injured party settles the costs of repair as damage and proves the necessity of the funds by means of the repair cost invoice or by means of a proper expert opinion, the tortfeasor has to state and prove the concrete facts from which the inefficiency of the settlement and thus a violation of the duty to mitigate damages results.
cc) The appeal rightly complains that the court of appeal does not consider the costs claimed by the plaintiff for the repair of the damage to be necessary because the plaintiff resold the vehicle unrepaired. In doing so, the court of appeal also interfered with the plaintiff's freedom of disposition with regard to the use of the damages according to the principles of damage law. The concrete behaviour of the injured party does not influence the amount of damages as long as the calculation of damages respects the requirement of economic efficiency and the prohibition of enrichment. Within this framework, the injured party is in principle free with regard to the use of the amount of money received to compensate for the damage (cf. Senate judgements of 20 June 1989 - VI ZR 334/88 - VersR 1989, 1056 fm. w.N. and of today - VI ZR 393/02-; Weber, VersR 1990 934 938 ff.; Steffen, NZV1991, 1,2; ders. NJW 1995, 2057, 2059 f.).
dd) Therefore, the appeal also rightly complains that the court of appeal did not attach any importance to the plaintiff's factual submission that it would have been unreasonable to have the car repaired in another workshop in view of the extent of the damage and the possibility of an extension of the damage.
The further consideration of the court of appeal that an injured party expresses with the resale of the unrepaired vehicle that the repair in an authorised workshop would no longer be possible without or would not be rewarded by the market is also not sustainable. This is already inconsistent with the principles of damage law outlined above and, moreover, is not covered by factual findings in the case in dispute.
The appeal judgement is based on the misjudgement of the aforementioned principles of damage law. It was therefore to be set aside. The senate decides on the matter itself, as all necessary factual findings have been made (§ 563 para. 3 ZPO).