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Drunkards are left sitting on damage:

Kaiserslautern. Drunk driving can cost a motorist the protection of comprehensive insurance.

This was decided by the Kaiserslautern Regional Court (Ref.: 3 O 323/13). According to the court, the insurance company

Entitled to refuse the motorist not only partial, but complete settlement of the claim if the motorist

Was absolutely unfit to drive. In its ruling, the court dismissed the claim of a motorist against his fully comprehensive insurance.

The plaintiff caused a traffic accident with a blood alcohol level of 1.27 per mill. His comprehensive insurance then held him liable for gross negligence.

and refused to settle the claim. This was legal, according to the Kaiserslautern Regional Court. (dpa)

The plaintiff is claiming payments from the defendant under a comprehensive insurance policy concluded with the defendant.

On ... 2012 at around 5.20 a.m., the plaintiff suffered a traffic accident with his car on the road between O... and S.... The accident occurred in such a way that the plaintiff moved into oncoming traffic on a straight stretch of road, irrespective of a traffic-related cause, and there it came to a head-on collision with the vehicle of the witness .... The plaintiff's vehicle was totally damaged. The replacement costs amounted to € 8,734.00.

A measurement of the plaintiff's BAC at 8.45 a.m. showed a value of 0.76 per mille. Previously, the plaintiff had already received infusions both in the ambulance and in the emergency room. An earlier blood sample could not be evaluated because no sufficient amount of blood had been taken.

The plaintiff argues that he may have fallen asleep at the wheel before the accident occurred. However, he had felt rested beforehand, as he had also slept at the party he had attended. In addition, he was used to sleeping at unusual times due to his shift work.

In any case, the accident was not due to the fact that he had drunk alcohol beforehand. In any case, he had only drunk two to three 0.3 litre beers.

The plaintiff requests,
order the defendant to pay the applicant the sum of €8,734.00 together with interest thereon at the rate of 5 percentage points above the respective base rate from the date of the lis pendens,

order the defendants to pay to the applicant €718.40 plus interest thereon at the rate of 5 percentage points above the respective base rate from the date of the lis pendens.
The defendant requests,
dismiss the action.
The defendant argues that the plaintiff was absolutely unfit to drive due to alcohol and complete fatigue. In view of the BAC measured after the accident, an alcohol level of 1.1 per mille or at least 0.9 per mille had been present at the time of the accident. This was prima facie evidence that an alcohol-related driving error had been the cause of the accident. He had thus caused the accident by gross negligence, which was why benefits were excluded.

The plaintiff was heard in person. In addition, the court took evidence by hearing the witness ... . For the details of her statements, reference is made to the minutes of the oral hearing of 5 September 2013 (p. 51 et seq. of the appendix). At the oral hearing on 10 December 2013, the expert provided an oral expert opinion (see file, p. 72 et seq.).

The file of the Kaiserslautern public prosecutor's office ... has been included.

On 10.12.2013, at the request of the defendant, the Chamber decided that a decision should be taken according to the state of the file.
Reasons for decision:

The admissible action is unfounded. The plaintiff is not entitled to claim payment of € 8,734.00 from the comprehensive insurance contract concluded, no. A.2.3 AKB. It is undisputed that his vehicle was damaged in the traffic accident of 2 December 2012. This was also a sudden and direct event affecting the vehicle from the outside, which is suitable to trigger the insurer's obligation to pay benefits (see in this regard: Feyock/ Jacobsen/ Lemor, Kraftfahrzeugversicherung, 3rd edition, part A.2 marginal no. 79). However, the defendant is entitled to reduce the benefits due to the plaintiff to zero, § 81 (2) VVG. This is because the traffic accident was caused by gross negligence on the part of the plaintiff, clause A.2.16 AKB.

(1) The grossly negligent causing of a traffic accident is affirmed in particular in the case of alcohol in road traffic.

a. In the case of so-called absolute driving incapacity - i.e. with a blood alcohol concentration of more than 1.1 per mille - a grossly negligent causing of a traffic accident is to be assumed as a rule, which entitles the insurer to reduce the insurance benefits to zero (BGH, VersR 2011, 1037; BGH, VersR 2001, 454; BGH, VersR 1991, 136; BGH, VersR 1986, 141; BGH, VersR 1972, 292). The causality of the alcohol-related driving incapacity for the traffic accident already follows from prima facie evidence (cf. only OLG Düsseldorf, RuS 2008, 9).

b. In the case of relative driving incapacity - i.e. with a blood alcohol concentration of less than 1.1 per mille - further circumstances are required for the reduction of benefits, which prove the alcohol-related nature of the accident (cf. BGH, VersR 2002, 1413). These can result in particular from the fact that the policyholder leaves the road without any recognisable external cause and in particular without third-party involvement (see in this respect in general: Römer/Langheid, VVG, 3rd edition, § 81 marginal no. 50 with further references).

Insofar as an alcohol-related inability to drive is given according to this standard, the causality of this for the accident can in turn be based on prima facie evidence (so also: OLG Karlsruhe, VersR 1991, 181). This is already convincing because the differentiation between absolute and relative driving incapacity is merely a matter of rules of evidence law, but relative driving incapacity is not a lesser form of driving incapacity (Burmann/ Heß/ Jahnke/ Janker, Straßenverkehrsrecht, 22nd edition, § 81 VVG marginal no. 16). Rather, relative and absolute driving incapacity differ only in the conditions that enable their determination: Whereas absolute driving incapacity alone requires a certain blood alcohol concentration, the assumption of relative driving incapacity requires a certain blood alcohol concentration as well as additional circumstances that indicate alcohol-related driving incapacity.

Insofar as one of these ways leads to the determination of an alcohol-related inability to drive, this cannot make any difference with regard to the consequences associated with this for the insurer's obligation to pay benefits. This applies both with regard to the prima facie evidence of the causality of the alcoholism for the accident and to the extent of the reduction to which the insurer is entitled (cf. on the latter: KG, DAR 2011, 23; OLG Hamm, NZV 2011, 293).

According to this standard, the board is convinced that the plaintiff caused the traffic accident of 2 December 2012 by gross negligence because he was unfit to drive due to alcohol at the time of the accident. The board assumes this on the basis of the convincing statements of the expert ..., which it fully agrees with.

a. The board first takes from the expert's statements that the plaintiff obviously did not truthfully state the amount of alcohol consumed in his personal hearing. According to the expert, the consumption of the beer claimed by the plaintiff - two to three beers in the size of 0.3 litres - would only have established a blood alcohol concentration of 0.54 per mille, which would have already been completely reduced at the time of the blood sample. However, this was precisely not the case. Rather, a blood alcohol concentration of 0.76 per mille was still measured more than three hours after the accident.

b. On the basis of the expert's statements, the board assumes that the plaintiff had a blood alcohol concentration of 1.27 per mille at the time of the accident. The expert arrives at this result on the basis of the realistic or physiological breakdown of alcohol. This is based on the assumption of an alcohol breakdown of 0.15 per mille per hour and does not take into account a resorption time. The fact that the plaintiff had already been given infusions between the accident and the blood collection had no effect on the measurement of the blood alcohol concentration.

The board agrees with the expert that the consideration of a resorption time cannot be realistically and physiologically explained. In this regard, the expert convincingly stated that it obviously could not have an effect on the blood alcohol concentration if only small amounts of alcohol were drunk after a certain point in time.

In addition, a resorption time can only be taken into account for a period of two hours after the end of alcohol consumption. However, this is not known in the present case. Since the plaintiff obviously did not state the amount of alcohol consumed truthfully, the board could not believe his claim that he had drunk beer until immediately before the journey home.

c. The application of the determination of his blood alcohol concentration, which is favourable for the plaintiff, does not lead to a different result in the present case.

aa. If it is assumed in favour of the plaintiff that there was only an alcohol breakdown of 0.10 per mille per hour and a resorption time of two hours, he would have had a blood alcohol concentration of only 0.90 per mille at the time of the accident and thus a relative inability to drive. However, this can - as explained - at least in combination with further circumstances lead to the assumption that the accident was based on the alcohol consumption of the policyholder. The more the blood alcohol concentration approaches absolute driving incapacity, the lower the requirements for the existence of these further circumstances have to be (cf. BGH, NJW 1982, 2612; OLG Saarbrücken, NJW-RR 2004, 1404). With the minimum blood alcohol concentration of 0.90 per mille given in the present case, the requirements to be placed on the conspicuousness of the driving behaviour are therefore comparatively low.

bb. In the present case, the plaintiff's driving behaviour was at least conspicuous insofar as he left the road on a straight road without any traffic-related cause. In this context, the board does not overlook the fact that a departure from the road can generally also be explained by the fact that a driver is overtired and falls asleep while driving. However, this cannot fully explain the plaintiff's driving behaviour.

In his personal hearing, the plaintiff stated that he felt well - and thus subjectively rested - at least when he started his journey. This can also be understood in view of his additional statement that he had slept from about 1 a.m. to 3 a.m. at the party he had attended. However, it must also be taken into account that the plaintiff himself emphasised that he was used to unusual sleeping times due to his shift work. He could only assume that he actually fell asleep and therefore drove off the road. Accordingly, he had only expressed a corresponding assumption to the witness ... immediately after the accident.

In addition, in the context of relative driving incapacity, only a driving error is required that is typically attributable to alcohol consumption. It is therefore not necessary that the driving error can be explained exclusively by the driver's alcoholism. Moreover, a corresponding determination would not be possible.

Since the traffic accident of 2 December 2012 was due to the plaintiff's alcoholism and he thus caused it by gross negligence, the defendant was entitled to reduce its benefits to zero, § 81 para. 2 WG. This applies - as shown - irrespective of whether the alcohol-relatedness of the accident is assumed on the basis of an absolute driving incapacity to be assumed by means of the realistic calculation method or on the basis of the combination of the relative driving incapacity - which is given according to the calculation method most favourable to the plaintiff - and the conspicuous driving behaviour of the plaintiff.

Therefore, it is only of supplementary importance that the plaintiff - apart from the possibility of falling asleep, which was expressly expressed only as a presumption - has no reasonable explanation for the traffic accident. In his hearing, the plaintiff did not uphold the claim initially made in the written statement - which, however, was already not comprehensible on the basis of the expert opinion obtained before the court (cf. file, p. 5 ff.) - that he had heard a banging noise shortly before the accident.

The decision on costs is made pursuant to § 91 (1) ZPO. The decision on provisional enforceability follows from § 709 ZPO.

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