OLG Karlsruhe Judgment of 15.4.2014, 12 U 149/13
A clause in the general insurance conditions of the motor vehicle comprehensive insurance according to which no insurance cover exists for
- Damage occurring during participation in driving events in which the aim is to achieve a maximum speed, including associated practice drives, and
- any driving on motor sports circuits, even if the aim is not to achieve a top speed,
and again excludes driving safety training from this exclusion of benefits is neither surprising within the meaning of § 305 c para. 1 BGB nor intransparent within the meaning of § 307 para. 1 sentence 2 BGB. It also does not disadvantage the policyholder in any other way contrary to the principles of good faith (§ 307 para. 1 sentence 1 and para. 2 BGB).
I. The plaintiff's appeal against the judgment of the Mannheim Regional Court of 27 September 2013 - 10 O 72/12 - is dismissed.
II. on the defendant's cross-appeal, the judgment of the Mannheim Regional Court of 27 September 2013 - 10 O 72/12 - is amended - with the remainder of the appeal being dismissed - to the effect that the defendant's conviction under No. 2 of the operative part of the judgment is set aside and the action is dismissed in this respect as well.
III. the applicant shall bear 92 % and the defendant 8 % of the costs of the appeal proceedings.
IV. The judgment shall be provisionally enforceable. The contested decision, in so far as it is confirmed by this judgment, is provisionally enforceable.
V. The appeal is not admitted.
1 The plaintiff claims benefits from the defendant insurance company under a motor insurance policy due to liability and comprehensive damage resulting from an accident on the Nordschleife of the Nürburgring on 4 April 2012.
2 In December 2011, the plaintiff, an insurance broker, acquired the Porsche 911 GT3 car at issue, registration number (...).
3 The insurance contract documented in the insurance policy dated 7 February 2012 and the addendum thereto dated 7 February 2012 came into effect between the parties for, among other things, motor vehicle liability insurance and comprehensive insurance for the said vehicle, whereby a deductible of EUR 1,000.00 was agreed in the comprehensive insurance. The contract was based on the General Terms and Conditions for Motor Vehicle Insurance (AKB) of the defendant. These state, among other things:
4 A Welche Leistungen umfasst Ihre Kfz-Versicherung?
5 A. 1 Motor third party liability insurance - for damage you cause to others with your vehicle.
6 A. 1. 5 Was ist nicht versichert?
8 A. 1. 5. 1 No insurance cover is provided for damage that you cause intentionally and unlawfully.
9 Approved races
10 A. 1. 5. 2 No insurance cover is provided for damage that occurs during participation in officially approved motor sporting events in which the aim is to achieve a maximum speed. This also applies to associated practice drives.
11 Note: Participation in races not authorised by the authorities constitutes a breach of duty according to D. 2. 2.
12 A. 2 Comprehensive insurance - for damage to your vehicle
13 A. 2. 18 Was ist nicht versichert?
14 A. 2.18.2 No insurance cover is provided for damage occurring during participation in driving events in which the aim is to achieve a maximum speed. This also applies to associated practice drives. Furthermore, there is no insurance cover for any driving on motor sport racetracks, even if the aim is not to achieve a maximum speed (e.g. regularity drives, tourist drives). However, insurance cover is provided for driving safety training.
15 D.2 Additionally in motor vehicle liability insurance and motor vehicle environmental damage insurance
16 D 2.2 The vehicle may not be used for driving events and the associated practice runs, which are aimed at achieving a maximum speed and which are not approved by the authorities.
17 Note: Officially approved motor sport events are excluded from insurance cover in accordance with A.1.5.2. There is also no insurance cover in the comprehensive, motor insurance and motor accident insurance for journeys in which it is important to achieve a maximum speed in accordance with A.2.18.2., A.3.9.2., A.4.10.4.
18 On 4 April 2012, the managing director of the plaintiff took part in the event "H. Fahren" ("H. Driving") of the Deutscher Sportfahrerkreis (DSK e.V., S.; hereinafter: DSK) with the vehicle in dispute on a section of the Nürburgring. The general conditions of the German Sports Drivers' Association for this event, in which there was no classification in terms of speed or times driven, stated, inter alia:
19„ A. Präambel
20 Free driving takes place on a circuit that is closed to public traffic during the event.
21 This circuit is an extensively equipped race track that complies with the safety regulations, in particular the specifications of the German Motorsport Association, and was selected accordingly.
22 The event is not intended to achieve top speeds or to determine the shortest riding time, but to optimise riding skills and technique.
23 The sole aim of the event is to improve driving safety for road traffic.
24 Each participant must behave in such a way that he does not endanger other participants by his behaviour; this is particularly the case when vehicles of different strengths are driving on the race track at the same time and differences in speed occur".
25 The plaintiff asserts claims against the defendant for compensation for third-party liability damage due to damage to a crash barrier as well as for comprehensive damage due to damage to the vehicle in question on the basis of an accident which - according to the plaintiff's disputed submission - allegedly occurred in the course of this event. After assessing the vehicle on 10 April 2012, the engineering firm M. reported repair costs in the amount of EUR 20,976.60. Due to the damage to the crash barrier - which is denied by the defendant - the plaintiff is claimed by D. GmbH for payment of an amount of 1,803.20 EUR.
26 With a notice of claim dated 3 May 2012, the plaintiff reported the damage to the defendant. In this report, the plaintiff's managing director ticked "within a built-up area" when asked whether the accident had occurred outside or within a built-up area. For the place of damage, he stated "road", whereby the question about the place of damage in the pre-printed notice of damage states in brackets: "town, road, motorway, country road, etc.". Under the heading "detailed circumstances of the accident", the plaintiff's manager stated: "After a right-hand bend, the car oversteered, spun and hit the crash barrier twice. Thank God it was always in front! Speed approx. 115 km/h. I was to blame.
27 After the defendant's enquiry of 15 May 2012, in which it requested the plaintiff to specify the place of the damage and pointed out that according to the plaintiff's managing director, he had been driving within a built-up area at a speed of approx. 115 km/h, the managing director replied by letter of 21 May 2012 that he had made a mistake when filling in the notice of claim. He had put the wrong cross in the question and the accident had happened outside built-up areas. The plaintiff's managing director further stated in this letter: "The exact location was: Nürburgring Nordschleife, section "Hohe Acht" on the occasion of a visit during a tourist trip."
28 In a letter dated 12 June 2012, the defendant refused insurance benefits due to the accident in question. On 9 January 2013, M. Services assigned to the plaintiff "claims to which it was entitled from the damaging event of 4 April 2012".
29 The plaintiff submitted that during the event in question, its managing director "crashed" his Porsche into the crash barriers at a speed of approximately 115 km/h on the Nürburgring Nordschleife, section "Hohe Acht". In the process, the front of the vehicle was completely and not inconsiderably damaged. The clause under A.2.18.2 AKB was incomprehensible and therefore invalid. The policyholder did not know when he was insured and when he was not. In particular, it was not transparent what was meant by a motor sports circuit. Since the clause could be found under the keyword "race", a policyholder would have to assume that only participation in a race was excluded from the insurance benefit. The ride in question was not a race. It was neither about achieving top speeds nor about determining the shortest riding time, but only about optimising riding skills and technique. The sole aim of the event had been to improve driving safety for road traffic, which was why the event ultimately constituted a driving safety training course.
30 The plaintiff's managing director had not made any false statements in the notice of claim. He had only made a mistake insofar as he had inadvertently ticked "within a built-up area" when filling in the confusing form. The fact that this was not intended to achieve a more favourable or simpler settlement was already evident from the fact that the managing director had at the same time stated the speed at the time of the accident to be 115 km/h. The defendant had not made a mistake in this respect. The defendant had to reimburse the plaintiff for her pre-litigation legal costs, whereby the claim was due to the plaintiff in accordance with the deductible agreed with the legal expenses insurance in the amount of a partial sum of EUR 150.00 and was otherwise asserted by the plaintiff by way of legal standing.
31 The applicant applied at first instance:
The defendant is ordered to pay the plaintiff EUR 19,976.60 plus interest at a rate of five percentage points above the base rate from the date of the lis pendens.
The defendant is ordered to indemnify the plaintiff in respect of the costs for the repair of the crash barriers on the Nürburgring in the amount of EUR 1,803.20 against D. GmbH, C.-B.-S. 2, ... S.-S. in the amount of EUR 1,803.20 against D. GmbH, C.-B.-Straße 2, ... S.-S.
34 The defendant has applied for
35 dismiss the action.
36 The defendant challenged the local jurisdiction of the Mannheim Regional Court. The plaintiff's arguments regarding the course of the accident in question were contested by the defendant. Furthermore, the defendant invoked the risk exclusions contained in the General Terms and Conditions of Insurance and claimed that the event on 4 April 2012 at the Nürburgring had been a motor sport event, which was all about achieving top speeds. From the video footage of the event in question, which had been posted on Youtube, it could be seen that all the classic criteria of racing events had been met.
37 The defendant took the precaution of invoking exemption from benefits due to false information provided by the plaintiff in the notice of claim. Insofar as the plaintiff's managing director had only stated "road" as the place of damage, he had deliberately concealed the fact that the accident had taken place on the Nürburgring race track; this was a circumstance that was essential for the question of the existence of insurance cover. By stating in the supplementary statement that he had taken part in a tourist trip, the plaintiff's managing director had also deliberately made false statements, as the event of the German Sports Drivers' Association that was the subject of the dispute had not been such an event.
38 The Regional Court heard the plaintiff's managing director in person and also took evidence by viewing the following video recordings posted on Youtube: (...) Reference is made to the minutes of the hearing of 2 July 2013.
39 By judgement of 27 September 2013, to which reference is made for the rest of the findings insofar as they do not contradict those made here, the Regional Court ordered the defendant to indemnify the plaintiff against D. GmbH with regard to the costs for the repair of the crash barriers in the amount of EUR 1,803.20 as well as to reimburse pro rata pre-court legal fees and dismissed the claim for the rest.
40 The admissible action - the Mannheim Regional Court had jurisdiction pursuant to § 21 ZPO - was only well-founded with regard to the plaintiff's claim under the motor vehicle liability insurance.
41 The plaintiff was entitled to exemption from the costs for the repair of the crash barriers. According to the photographs submitted, these had been damaged by the vehicle in dispute driving into them. The defendant could neither invoke the exclusion of risk according to clause A.1.5.1 GTCLI nor one according to clause A.1.5.2 GTCLI. The defendant, who had the burden of proof in this respect, had not proved that the event in question had been one in which the achievement of a maximum speed was important. The defendant was not exempt from liability because of false statements made by the plaintiff in the notice of claim. Insofar as the plaintiff's managing director had made false statements by ticking "within a built-up area", § 28 (3) VVG was in any case relevant; in view of the statement, also made in the notice of claim, according to which the accident had occurred at about 115 km/h, a query by the defendant was inevitable in view of this obvious contradiction to a location of the accident "within a built-up area". As far as the plaintiff's managing director had stated "road" as the place of the accident, this answer was questionable; however, the defendant's form was not unambiguous in this respect and the managing director's statement was comprehensible.
42 With regard to the claim asserted by the plaintiff under the comprehensive insurance, the exclusion of risk according to clause A 2.18.2 AKB applied. The clause was effective, its wording clear and unambiguous; according to it, any driving on motor sports racetracks should be excluded from the insurance cover. A motorsport race track is - as would be obvious to the average policyholder - a track that is dedicated to motorsport and on which no public road traffic takes place. Even the fact that there were several clauses with different contents did not make clause A 2.18.2 AKB non-transparent; on the contrary, the attentive policyholder would easily understand that the different clauses applied to different insurances. The fact that the "intermediate keyword" before this clause was "race" did not indicate otherwise. The connection between a "race" and "driving on a motor sport race track" was so close that a reasonable policyholder intending to participate in an event on a motor sport race track would not refrain from reading the condition because he could believe that the clause was not relevant to him in any case. The event in question was also not a driving safety training within the meaning of the insurance conditions.
43 The plaintiff's appeal is directed against this, with which it continues to pursue its claim at first instance in its entirety. The provision in clause A 2.18.2 was not only unclear and ambiguous and thus non-transparent, but also surprising. The District Court's interpretation of the term "motor racing circuit" was clearly not the only possible one: Based on the definition of the Regional Court, the "Nordschleife" does not fall under the concept of a motor sports racetrack, as public road traffic takes place there, even though an access fee is charged for this. The judgement was contradictory in that, on the one hand, a motor sports racetrack was said to be a track dedicated to motor sports on which no public road traffic took place, while, on the other hand, it was stated that the track in question was not deprived of its character as a motor racing track by the fact that this part of the track might be accessible to the public.
44 Moreover, it must be taken into account that this provision on the exclusion of liability is found under the keyword "race". From this, the reasonable reader would have to draw the conclusion that the clause was only relevant if it was a "race". Moreover, the Regional Court had overlooked the fact that the Defendant's wording deviated from the statutory model of the "racing clause" in clause D.2.2 AKB as well as § 4 no. 4 KfzPflVV, from its clause under clause A 1.5.1 AKB as well as from the AKB which it had previously concluded for insurance contracts with the Plaintiff and all other customers.
45 The applicant claims that the Court should:
On the appeal of the plaintiff/appellant, the judgment of the Regional Court of Mannheim of 27 September 2013, 10 O 72/12, is amended.
47 2. orders the defendant to pay to the applicant EUR 19 976,60 together with interest at the rate of five percentage points above the base rate from the date of lis pendens.
48 3. the defendant is ordered to indemnify the plaintiff with regard to the costs for the repair of the crash barriers on the Nürburgring in the amount of EUR 1,803.20 (damaged over a length of approx. 28 metres on 04.04.2012 during the event "H. Fahren") vis-à-vis D. GmbH, K.-B.-Str. 2, ... S.-S..
49 The defendant defends the judgment of the Regional Court insofar as the action was dismissed and requests that the plaintiff's appeal be dismissed.
50 By way of cross-appeal, the defendant contests the judgment of the Regional Court insofar as it was condemned and continues to pursue its first-instance request for dismissal of the action. It further raised the objection of lack of local jurisdiction. The event in question was a racing event in which the participants aimed at achieving their own top speeds or improving their lap times. The "free driving" made it possible to drive on a racetrack at top speed, which was also the aim of the participants. The film material examined at first instance showed that the event in question was a racing event with the aim of achieving top speeds. In the required overall assessment, it also had to be taken into account that the plaintiff's managing director had already participated in events with the same content with a number of vehicles and was a member of the German Sports Drivers' Association (Deutscher Sportfahrerkreis). Furthermore, the defendant claimed that it was exempt from paying benefits because of fraudulent misrepresentations made by the plaintiff's managing director in the notice of claim.
51 The defendant applies by way of cross-appeal:
52 In partial amendment of the judgment 10 O 72/12 LG Mannheim of 27.09.2013, the action is dismissed in its entirety.
53 The plaintiff defends the judgment of the Regional Court insofar as the defendant was convicted and requests that the cross-appeal be dismissed.
Reasons for decision
54 The plaintiff's appeal is admissible, but not well-founded. The defendant's admissible cross-appeal is only successful on the merits to a small extent - with regard to the pre-litigation lawyer's fees awarded at first instance plus interest.
55 A. Berufung der Klägerin:
56 The Regional Court correctly assumes that the plaintiff is not entitled to reimbursement of the asserted comprehensive damage due to damage to the insured vehicle in the accident event at issue. In particular, such a claim does not arise from the insurance contract concluded between the parties in conjunction with § 1 sentence 1 VVG.
57 In this respect, the defendant's duty to indemnify is precluded by the exclusion of risk pursuant to clause A.2.18.2 GTCLI.
Contrary to the plaintiff's view, the exclusion clause is effective in its concrete form. In particular, in view of the design and wording of the risk exclusion, there is neither a surprising clause (§ 305 c para. 1 BGB) nor an intransparent clause nor a clause that disadvantages the plaintiff in any other way contrary to the principles of good faith (§ 307 para. 1 and para. 2 BGB).
59 a. A provision is surprising within the meaning of section 305 c (1) of the German Civil Code if it is so unusual under the circumstances, in particular under the external appearance of the contract, that the contractual partner of the user does not have to expect it. This is not the case here. Already according to the typographical design of the insurance conditions, the exclusion of risk - in the section under the bold heading "A.2.18 - What is not insured? - is easily recognisable to the policyholder as a restriction of the insurer's scope of benefits.
60 The clause in clause A.2.18.2 AKB is also not surprising because a risk exclusion clause deviating from it is found in the same AKB for the area of liability insurance. Motor insurance is a number of independent insurance contracts combined in one insurance policy, which is why increases of risk, breaches of the duty of disclosure and breaches of obligations must be examined separately for each class of insurance (see Senate, judgement of 18.01.2013 - 12 U 117/12, juris, para. 27; Prölss/Martin, VVG, 28th ed. 2010, Vor A AKB 2008, para. 3). The fact that the question of risk exclusion must be examined independently for each of the individual insurance areas combined in the motor insurance - according to the relevant insurance conditions for the respective class - is by no means unusual, but corresponds precisely to their legal character as legally independent insurance contracts.
61 The risk exclusion clause in clause A.2.18.2 GCI is also not surprising in the sense of § 305 c para. 1 BGB because the average policyholder would not have to expect such a provision in the insurance conditions. Rather, the concrete form of the insurance relationship, in particular through the concrete limitation of the insured risk - which the average policyholder must be aware of without further ado - is the usual content of general insurance conditions.
62 b. The exclusion of risk agreed in the insurance conditions for the area of comprehensive insurance also does not unreasonably disadvantage the plaintiff contrary to the requirements of good faith (§ 307 para. 1 sentence 1 BGB).
63 (1) Contrary to the plaintiff's view, such an unreasonable disadvantage does not exist in the present case because the clause is not clear and understandable (cf. section 307 para. 1 sentence 2 BGB).
64 To the extent that the plaintiff argued that, in view of the multiple risk exclusion provisions in the GCI, it was not sufficiently clear to the average policyholder which exclusion provisions governed the contractual relationship between it and the defendant as insurer, the Senate did not share this assessment. The allocation of the risk exclusion clauses to the individual types of insurance - liability insurance on the one hand and comprehensive insurance on the other hand - is already sufficiently clear from the headings and subdivisions used in each case. Thus, it is readily apparent that the risk exclusion under clause A.1.5.2 AKB - in accordance with the superordinate bullet point "A.1 - Motor third party liability insurance - for damage you cause to others with your vehicle" - refers exclusively to the third party liability insurance, whereas the exclusion clause under clause A.2.18.2 AKB - in accordance with the superordinate bullet point "A.2 - Comprehensive insurance - for damage to your vehicle" - refers exclusively to the comprehensive insurance.
65 Also in view of its structure, the clause in no. A.2.18.2 AKB is easily understandable by itself. In p. 1 and p. 2, the clause initially provides for an exclusion of risk for driving events designed to achieve a maximum speed and associated practice drives. In p. 3, the exclusion of risk - irrespective of the "racing character" of the respective journey - is extended to all journeys on motor sport racetracks. S. 4 again excludes driving safety training from this regulation.
66 Insofar as the plaintiff claims that the term "motorsport race track" in p. 3 of the clause cannot be defined with sufficient clarity, the senate does not share this view. General terms and conditions of insurance, and thus also the clause at issue, are to be interpreted in such a way as an average policyholder must understand them on the basis of a reasonable assessment, attentive perusal and consideration of the recognisable context of meaning. In this context, the possibilities of understanding of a policyholder without special knowledge of insurance law and thus - also - his interests are relevant (cf. BGH, VersR 2003, 236; Senate, judgement of 17.05.2011 - 12 U 45/11). The starting point of the interpretation is the wording of the clause. Accordingly, the meaning of the term "motor sports race track" that the average policyholder would attribute to it is decisive. According to this, a motorsport race track is a track that is dedicated to motorsport and on which - for the time of this dedication - no public road traffic in the sense of the road traffic regulations takes place. The fact that the track - as is the case here for the Nürburgring Nordschleife outside the times of organised events - is accessible to the general public in the sense that everyone has the possibility to use the track, if necessary against payment of an access fee, does not deprive it of its character as a motor sports racetrack.
67 To the extent that the applicant points out that the use of such a definition leads to the result that for certain routes - namely areas of the public road network on which racing events are held from time to time - a differentiation must be made in terms of time and that they fulfil the concept of a motor sports racetrack at certain times but do not constitute such a racetrack at other times, this does not contradict the said interpretation. It is neither explained nor otherwise evident why the character of a "motor sport race track" should be attached to a track area as such - without taking into account the overall circumstances of its use.
68 The fact that the clause is found under the heading "Races" does not justify the assumption of an unreasonable disadvantage within the meaning of § 307 para. 1 sentence 1, sentence 2 BGB. This does not give the average policyholder the impression that the clause exclusively covers races in the sense of driving events designed to achieve top speeds. Rather - as the Regional Court correctly pointed out - there is such a close connection between "race" and "driving on a motor sports racetrack" outside of such a race that the reasonable policyholder who intends to drive on a motor sports racetrack does not refrain from reading the condition because he might believe that the clause is not relevant to him. In this respect, too, the content of the clause is not surprising.
(2) In the present case, an unreasonable disadvantage pursuant to § 307 para. 2 BGB is not to be assumed. In particular, such a disadvantage does not result from a deviation of the exclusion clause from the exclusion clause for liability insurance in clause A.1.5.2 of the General Terms and Conditions of Insurance, the supplementary relevant provision for liability insurance in clause D.2.2 of the General Terms and Conditions of Insurance and the provision of § 4 no. 4 of the Motor Vehicle Insurance Contract (KfzPflVV). As already explained, the liability insurance on the one hand and the comprehensive insurance on the other hand are legally independent insurance contracts. Moreover, in view of the increased danger of driving on a race track, even outside of a race, an interest of the insurer and the insured community in a separate exclusion clause - broader than the liability insurance - for the comprehensive insurance seems quite understandable. Against this background, the reasonable policyholder must also expect a provision such as the one at issue in the present case for comprehensive insurance. Even to the extent that the clause - which the plaintiff does not substantiate - deviates from provisions in other insurance contracts of the defendant both with the plaintiff and with other customers, this does not justify the assumption of an unreasonable disadvantage within the meaning of § 307 (2) BGB, contrary to the plaintiff's view.
The factual requirements of the risk exclusion clause in clause A.2.18.2 AKB are met.
71 a. In this respect, it can be left open whether the event in question was a race or a related practice drive within the meaning of p. 1 and p. 2 of the clause. In any case, it is a drive on a motor sports race track according to p. 3 of exclusion clause A.2.18.2 AKB. The Nürburgring-Nordschleife is a motorsport race track in the sense described above. This is not disputed by the plaintiff and, moreover, also results from the findings of the Regional Court regarding the video recordings that were examined.
72 b. Contrary to the plaintiff's view, it is also not a case of driver safety training - excluded from the exclusion of risk - within the meaning of sentence 4 of the provision in no. A.2.18.2 AKB. Even on the basis of the plaintiff's submissions, the trip in question does not constitute such a training.
73 As already explained, general terms and conditions of insurance, and thus also the present clause, are to be interpreted as an average policyholder must understand them on the basis of a reasonable assessment, attentive reading and taking into account the recognisable context of meaning (cf. BGH, VersR 2003, 236; Senate, Judgment of 17.05.2011 - 12 U 45/11).
74 The starting point for the interpretation is - as always - the wording of the clause. Already according to the general understanding of the word, the existence of a driving safety training requires the presence of at least one person who instructs the participation in the training, observes the driving behaviour of the participants and gives advice in order to avoid detected driving errors or to optimise the driving behaviour. However, the presence of such a person as a "trainer" in the context of a driving safety training course is already lacking on the basis of the plaintiff's factual submission.
75 Such an interpretation is also supported by the sense and purpose of the clause provision, which is readily apparent to the average policyholder. While initially - with regard to the increased danger associated with this - driving on motor sports racetracks is excluded from the insurance cover, driving safety training courses are in turn excluded from this exclusion, apparently with regard to the less far-reaching dangers associated with such driving safety training courses compared to other driving on motor sports racetracks. However, a lesser degree of danger can only be assumed if the participants are subject to a certain degree of instruction and supervision, but not if - as is the case here - they use the racetrack in the context of so-called "free driving" and in this way try to optimise their driving behaviour and their skills in handling the vehicle.
76 B. Anschlussberufung der Beklagten:
The plaintiff has a claim against the defendant for indemnification from the claims asserted by D. GmbH against the plaintiff for damage to the crash barrier in the amount of EUR 1,803.20 arising from the motor vehicle liability insurance contract in conjunction with § 1 sentence 1 VVG.
78 a. It is undisputed that a liability insurance contract exists between the parties for the motor vehicle in dispute.
79 b. The insured event within the meaning of clause A.1.1.1 AKB has occurred. The plaintiff damaged a crash barrier along the Nordschleife on the Nürburgring through the use of the insured vehicle, which is why claims for damages in the form of repair costs are being asserted against her by D. GmbH.
80 (1) After the result of the taking of evidence, the Senate is convinced that - as alleged by the plaintiff - on 4 April 2012 on the Nürburgring Nordschleife, section "Hohe Acht", there was an accident with the Porsche driven by the managing director of the plaintiff and insured with the defendant, in which the vehicle hit the crash barrier and damaged it in the process. (...)
81 c. The exclusion clause in clause A.1.5.1 GTCLI does not prevent the defendant's obligation to pay benefits. There are no factual indications of intentional causation of the damage. In particular, this does not result from the plaintiff's own argument that the accident had occurred in a curve at a speed of 115 km/h. The mere fact of driving through a curve at a speed of 115 km/h was not sufficient to justify the exclusion clause. Merely driving through a bend at high speed - especially on a motorsport racetrack - does not justify the conclusion that the driver had at least condoned the occurrence of third-party damage. On the contrary, it is general life experience that the driver trusts in the absence of a corresponding result of the damage.
82 d. The defendant also cannot successfully invoke the exclusion clause in clause A.1.5.2 GTCLI. The defendant did not prove the actual requirements of the risk exclusion clause (cf. on the distribution of the burden of proof: BGH, decision of 11.09.2013 - IV ZR 259/12, juris, para. 16; OLG Köln, judgement of 21.11.2006 - 9 U 76/06, juris, para. 24) to the conviction of the senate (§ 286 ZPO).
83 (1) Clause A.1.5.2 AKB provides for an exclusion of risk for the liability insurance for damages that occur during participation in officially approved motor sporting events where the aim is to achieve a maximum speed, including the associated practice drives. This is not to be assumed in the present case.
84 (2) Risk exclusion clauses shall be interpreted narrowly. Their scope of application may not be extended further than their meaning requires, taking into account their economic purpose and the chosen wording. This is because the average policyholder does not need to expect gaps in the insurance cover without these being made sufficiently clear to him (see Senate, Judgment of 19.04.2007 - 12 U 237/06, juris, para. 18; Senate, Judgment of 06.09.2007 - 12 U 107/07, juris, para. 16). The term "events in which the aim is to achieve a maximum speed" refers to "races with vehicles" within the meaning of section 29(1) of the StVO (BGH, NJW 2003, 2018). According to the administrative regulation to § 29 StVO, races are competitions or parts of a competition (e.g. special stages with racing character) as well as events (e.g. record attempts) to achieve maximum speeds with vehicles. From the point of view of an average policyholder, nothing else results. From his point of view, the exclusion relates to rides in the context of an event whose character is characterised by achieving the highest possible speed and then ranking the participants. He will only understand an "associated practice drive" as a drive that is directly related to a specific driving event, in which maximum speed is important in the sense described above (cf. Senate, judgement of 6 September 2007 - 12 U 107/07, juris, para. 17, 19; OLG Köln, VersR 2007, 683 with further references; Stiefel/Maier, Kraftfahrtversicherung, 18th ed. 2010, AKB A, para. 17).
(3) The defendant did not prove to the conviction of the Senate (§ 286 ZPO) that the disputed event of the German Sports Drivers' Circle was aimed at achieving a maximum speed. In this respect, a certainty beyond all conceivable doubt is not required. Rather, a "personal certainty" is sufficient, which silences the doubts without completely excluding them (see Zöller - Greger, 30th ed. 2014, § 286 ZPO, marginal no. 19 with further references).
86 (a) First of all, such evidence does not result from the videos posted on Youtube of driving on the Nürburgring Nordschleife in the context of the event in dispute on 4 April 2012. In this respect, the Senate agrees with the correct and detailed reasoning in the contested decision. The Regional Court correctly came to the conclusion that the inspection of these videos did not prove that the event in question was about achieving a maximum speed within the meaning of clause A.1.5.2 GTCLI. A renewed inspection of these videos in the appeal proceedings was not necessary. The defendant did not present any concrete evidence that would cast doubt on the correctness of the Regional Court's findings based on the inspection of the videos (§ 529 para. 1 sentence 1 ZPO). The Regional Court recorded the perceptions and findings during the inspection in detail and comprehensibly in the minutes of the hearing of 2 July 2013. Insofar as the defendant arrives at the assessment that the videos prove the racing character of the event in question, it ultimately substitutes its own assessment of the evidence for that of the Regional Court. However, this does not help the cross-appeal to succeed.
87 (b) Contrary to the view of the defendant, a legal classification of the event as one in which the achievement of a maximum speed is important also does not result from an evaluative view of the event taking into account the membership of the plaintiff's managing director in the German Sports Drivers' Association. Admittedly, the senate has no doubts that at an event of this kind, the motor vehicles used are subject to an increased risk and that the driving behaviour of the participants - for example by outbraking other participants, overtaking on the right, slipstream driving - would often not meet the requirements of the StVO. However, it is undisputed that there is no ranking, placing or time measurement. Whether the individual drivers - which the defendant claims - have the possibility to measure the individual lap times for themselves is irrelevant in this respect. The fact that the participants may undoubtedly also be interested in achieving the highest possible speeds is not sufficient in the narrow interpretation required (cf. Senate, judgement of 6 September 2007 - 12 U 107/07, juris, para. 20).
(4) The event in question does not constitute an "associated practice drive" within the meaning of No. A.1.5.2 AKB. In this respect, there would have to be a practice drive organised by the organiser for a specific race. In the present case, this is clearly not the case due to the lack of connection with a specific race.
e. Contrary to the defendant's view, it was also not released from its obligation to pay benefits due to the plaintiff's breach of obligations pursuant to § 28 par. 2, par. 4 VVG, clauses E.1.3, E.6.1, E.6.2 AKB.
90 (1) Insofar as the defendant asserts a breach of obligation due to the statement of the plaintiff's managing director that the accident had occurred "within a built-up area", it is not to be assumed that false statements were made intentionally. The plaintiff comprehensibly explained that its managing director had inadvertently marked "within" instead of "outside a built-up area" on the damage report form. The senate is convinced that this was simply an oversight because the managing director, when describing the course of the accident in the same notice of claim, stated that the accident had occurred at a speed of about 115 km/h in a curve. The fact that in such a description the statement that the accident had occurred "within a built-up area" led to the expectation of enquiries by the insurer does not need to be discussed. However, if such an enquiry by the insurer was to be expected with certainty, it is not clear for what reasons the plaintiff's managing director should have intentionally placed the cross at the wrong place regarding the location of the accident, especially since an advantage in the settlement of the insured event by "moving" the location of the accident to the area within a built-up area is not apparent.
91 (2) However, even insofar as the plaintiff's managing director merely entered "road" in the field of the form regarding the place of damage without specifically designating the place of the accident - in this case the Nürburgring Nordschleife - this does not result in the defendant's exemption from liability due to wilful breach of duty on the part of the plaintiff or its managing director (§ 166 (1) BGB).
92 In this respect, it can be left open whether - as the Regional Court assumes - the defendant's damage report form is actually to be judged as ambiguous or whether - taking into account the line heading "Date and place of damage" and the indication "Place of damage" directly in the field of the form to be filled in by the policyholder - it is not rather obvious to the average policyholder that the question aims at the exact indication of the concrete place of the accident and that the indication "Town, road, motorway, highway, etc." in the field "Place of damage" is only an exemplary enumeration of locations to be taken into account." in the field "place of damage" is only an exemplary list of locations to be used for precise specification. Moreover, it is irrelevant whether the plaintiff's managing director actually explained the form entry "street" in a comprehensible way - as assumed by the Regional Court - by his statements during his personal hearing.
93 If contradictions or obvious inaccuracies in the information provided by the policyholder arise from a notification of loss form, it is incumbent on the insurer to investigate this unclear information by asking questions (cf. Stiefel/Maier, Kraftfahrtversicherung, 18th ed. 2010, AKB E, marginal no. 75; BGH, VersR 1997, 442 for accident insurance). In such a situation, the omission of complete information in breach of duty is equivalent to false information only if the insurer's required enquiry remains unanswered or if the policyholder reacts, for example, with immediate legal action (cf. Stiefel/Maier, loc.cit., AKB E, marginal no. 75 with further references). If, on the other hand, the policyholder completes his initially incomplete information upon the - required - enquiry of the insurer, it is not to be assumed that the policyholder provided intentionally incomplete information, which is equivalent to deliberately false information. This is the case here.
94 It was readily apparent to the defendant that the information provided by the plaintiff on the place of damage, which was limited to the entry "road", did not meet the requirements, so that the defendant had to feel compelled to enquire with the plaintiff as the policyholder - which it did in fact do in its letter of 15 May 2012. However, in response to this enquiry, the plaintiff's managing director, in his letter of 21 May 2012, specified the location of the damage with sufficient precision by stating "Nürburgring Nordschleife, section 'Hohe Acht'" and thus fulfilled his obligation to provide information in a manner that would have been required when filling out the notice of claim.
95 The senate does not fail to recognise that a subsequent correction of untrue information cannot, in principle, remedy a breach of obligation that has already occurred. If there is a deliberate breach of obligation, the policyholder can only escape the loss of claim if he discloses the true facts to the insurer completely and unambiguously of his own accord and does not conceal or withhold anything (cf. Stiefel/Maier, loc. cit, AKB E, marginal no. 80 with further references) or - as far as there is no fraudulent conduct (§ 28 par. 3 p. 2 VVG) - states and, if necessary, proves that the breach of obligation is neither causal for the occurrence or the determination of the insured event nor for the determination or the scope of the insurer's obligation to pay benefits (cf. § 28 par. 3 p. 1 VVG).
96 The present case differs from this, however, in that solely due to the information on the place of damage in the notice of claim, which was obviously insufficient for the insurer, an intentional breach of obligation - as explained - is not to be assumed. On the contrary, the plaintiff escaped the accusation of having committed such a breach by providing complete information on the place of the accident in the reply letter of 21 May 2012 to the defendant's expected enquiry.
97 (3) Finally, the defendant cannot successfully rely on the fact that the plaintiff's managing director had deliberately made false statements in the reply letter of 21 May 2012 insofar as he had untruthfully stated that he had taken part in a "tourist trip" at the time of the accident. It can be left open whether - which is disputed between the parties - the disputed ride of the plaintiff's managing director on the Nürburgring was such a tourist ride or whether such a ride only exists if the participation is made by a private person outside of an event organised by an organisation such as the Deutscher Sportfahrerkreis in this case. It can be inferred from the factual submissions in the context of the present legal dispute that the plaintiff would like the concept of a tourist ride to be understood as distinct from that of a race, namely as an event not aimed at achieving top speeds. On the basis of such a - at least comprehensible - understanding of the term, it cannot be assumed that the reply of 21 May 2012 contained intentionally false information.
Contrary to the opinion of the Regional Court, the plaintiff is not entitled to reimbursement of pre-litigation legal fees on the basis of the main claim awarded as the value of the object. (...)