FEDERAL COURT OF JUSTICE
IN THE NAME OF THE PEOPLE
VI ZR 225/13
11 February 2014
as clerk of the court
in the litigation
Reference book: yes
BGB § 249 (Gb)
On the question of the necessity of expert costs after a traffic accident.
BGH, Judgment of 11 February 2014 - VI ZR 225/13 -
At the hearing on 21 January 2014, the VI Civil Senate of the Federal Court of Justice (Bundesgerichtshof) by the Presiding Judge Galke, the Judge Zoll, the Judge Diederichsen, the Judge Pauge and the Judge Offenloch
found to be right:
On the appeal of the plaintiff and the cross-appeal of the defendant, the judgment of the 21st Civil Chamber of the Regional Court of Darmstadt of 17 April 2013 is set aside on the point of costs and insofar as the Regional Court dismissed the appeal of the plaintiff against the dismissal of the action for payment of further expert's fees in the amount of € 87.65 plus interest and, amending the judgment of the Local Court of Seligenstadt of 5 October 2012, ordered the defendant to pay further expert's fees in the amount of € 56.90 plus interest.
To the extent of the annulment, the matter is referred back to the Court of Appeal for a new hearing and decision, including on the costs of the appeal proceedings.
The further appeals of the parties are dismissed.
The parties are in dispute about the compensation of remaining expert and lawyer's fees as a result of a traffic accident.
In February 2012, the plaintiff was involved in a traffic accident with the defendant, for the damages of which the defendant is liable at 100%. The plaintiff obtained a motor vehicle damage appraisal according to which the necessary repair costs amounted to approximately € 1,050 plus VAT. The expert invoiced the plaintiff an amount of € 534.55 for the expert opinion, which was broken down as follows:
Preparation and drafting of the expert opinion € 260.00
Photographs (11) 8 x € 2,80 (1 set) € 22,40
Telephone/EDP co., office supplies, postage, writing costs € 75.00
Travel costs/time (51 km x Euro 1,80 max. € 100,00) € 91,80
Additional expenditure for salvage exchange € -
Subtotal without VAT € 449.20
VAT 19,0% € 85,35
Final sum incl. VAT € 534,55
The defendant's liability insurance settled the costs in the amount of € 390. The remaining amount of € 144.55 is the subject of the action. In addition, the plaintiff claims residual pre-trial legal costs (lawyer's fees) in the amount of € 74.97, taking into account a payment that was also made pre-trial, and finally seeks a declaration that the defendant is obliged to pay interest on the court costs incurred by the plaintiff in the amount of 5 percentage points above the base interest rate for the period from the receipt of the court costs paid until the receipt of the application for the determination of costs in accordance with the costs ratio to be awarded.
The district court dismissed the action. On the plaintiff's allowed appeal, the Regional Court ordered the defendant to pay further expert costs in the amount of € 56.90 as well as further pre-trial legal costs in the amount of € 43.31, plus interest in each case, while dismissing the remainder of the appeal. With the appeal admitted by the Regional Court, the plaintiff continued to pursue his original claim. The aim of the defendant's cross-appeal is to restore the judgement of the lower court.
Reasons for decision:
The court of appeal essentially stated that as a rule the injured party was entitled to commission a qualified expert of his choice to prepare the damage report. The motor vehicle expert did not exceed the limits of legally permissible pricing merely by setting an appropriate flat rate based on the amount of damage. However, the courts could, with the help of an expert or by way of an estimate of the damage pursuant to § 287 ZPO, make findings which showed that the amount of the expert's fees claimed exceeded the necessary production costs within the meaning of § 249 (2) BGB. In this regard, both with regard to the basic fee and with regard to the additional costs, the results of the survey on the amount of the motor vehicle expert fee 2010/2011 by the Federal Association of Freelance and Independent Motor Vehicle Experts - BVSK (hereinafter: "BVSK Fee Survey") could be used. According to this, the chamber estimated the costs necessary for obtaining the damage appraisal at € 446.85, on which the defendant had already paid € 390.
This calculation of damages does not stand up to the attacks of the appeal.
a) However, the Court of Appeal is correct in assuming that the plaintiff was entitled to commission an expert to estimate the amount of damage to his car that was damaged in the accident and to demand reimbursement of the objectively necessary expert's costs from the defendant pursuant to § 249 para. 2 sentence 1 German Civil Code (Bürgerliches Gesetzbuch - BGB) as production costs (see Senate judgements of 15 October 2013 - VI ZR 471/12, VersR 2013, 1544 para. 26 and - VI ZR 528/12, VersR 2013, 1590 marginal no. 27; of 23 January 2007 - VI ZR 67/06, VersR 2007, 560 marginal no. 13; of 7 May 1996 - VI ZR 138/95, BGHZ 132, 373, 375 et seq.26 May 1970 - VI ZR 168/68, BGHZ 54, 82, 84 f.; 4 December 1984 - VI ZR 225/82, VersR 1985, 283, 284 as well as 2 July 1985 - VI ZR 86/84, VersR 1985, 1090 and - VI ZR 177/84, VersR 1985, 1092 mwN). According to the established case law of the Senate, necessary expenses are those that a reasonable, economically minded person in the situation of the injured party would incur (Senate judgments of 15 October 2013 - VI ZR 471/12, VersR 2013, 1544 para. 20 and - VI ZR 528/12, VersR 2013, 1590 marginal no. 19; of 23 January 2007 - VI ZR 67/06, VersR 2007, 560 marginal no. 17; of 7 May 1996 - VI ZR 138/95, BGHZ 132, 373, 376; of 2 July 1985 - VI ZR 86/84 and - VI ZR 177/84, both ibid). If the injured party is able to influence the amount of the costs to be spent on remedying the damage, then according to the concept of damage and the purpose of damages as well as according to the legal idea of § 254 (2) sentence 1 BGB, which ultimately goes back to § 242 BGB, he is obliged to pay the damages. 2 sentence 1 BGB, which ultimately goes back to § 242 BGB, he is obliged to choose the more economical way of remedying the damage within the scope of what is reasonable for him (cf. the aforementioned senate judgements; see also senate judgement of 15 October 1991 - VI ZR 314/90, BGHZ 115, 364, 368
f.). However, as the senate has already stated, the requirement to remedy the damage in an economically reasonable manner does not require the injured party to save money for the benefit of the tortfeasor or to behave in every case as if he had to bear the damage himself (senate judgements of 15 October 1991 - VI ZR 314/90, BGHZ 115, 364, 369; of 29 April 2003 - VI ZR 393/02, BGHZ 154, 395, 398; of 2 July 1985 - VI ZR 86/84, ibid). For in the latter case, the injured party will not infrequently exercise waivers or make efforts which, in relation to the tortfeasor, appear to be excessively obligatory and which the latter can therefore not demand from the injured party. In the effort to objectify the need for restitution in an economically reasonable manner, the basic concern of this provision must not be lost sight of, even within the framework of para. 2 sentence 1 of § 249 BGB, namely that the injured party should receive the fullest possible compensation for damages in the case of full liability of the tortfeasor (cf. Steffen, NZV 1991, 1, 2; id. NJW 1995, 2057, 2062). Therefore, when examining whether the injured party has kept the effort to repair the damage within reasonable limits, a subject-related consideration of the damage must be made, i.e. This means that the special situation of the injured party, in particular his individual possibilities of knowledge and influence as well as the difficulties that may exist for him in particular, must be taken into account (Senate judgements of 15 October 1991 - VI ZR 314/90, BGHZ 115, 364, 369 and - VI ZR 67/91, BGHZ 115, 375, 378; cf. Senate judgement of 15 October 2013 - VI ZR 528/12, loc.cit. marginal no. 19). When hiring a motor vehicle expert, the injured party may also be content with hiring the expert that is readily available to him in his situation. He does not have to conduct market research beforehand to find the expert with the lowest fee.
The injured party usually satisfies his burden of proof regarding the amount of damage by submitting an invoice of the expert he has used to repair the damage. In the estimation of damages pursuant to § 287 ZPO, the actual amount of the invoice is an essential indication for the determination of the amount "necessary" for repair within the meaning of § 249 para. 2 sentence 1 BGB, as it regularly reflects the special circumstances of the respective individual case including the limited possibilities of knowledge of the injured party, which are relevant against the background of the subject-related consideration of damages (cf. Senate judgements of 15 October 2013 - VI ZR 471/12, loc. cit. para. 26 and - VI ZR 528/12, loc. cit. para. 27; of 23 January 2007 - VI ZR 67/06, loc. cit. para. 13; of 6 November 1973 - VI ZR 27/73, BGHZ 61, 346, 347 f.). Ultimately, however, it is not the legally owed costs that are decisive, but the costs that are actually necessary within the meaning of § 249.2 sentence 1 BGB (cf. Senate judgement of 7 May 1996 - VI ZR 138/95, BGHZ 132, 373, 381 mwN). An indication for the necessity is, however, the conformity of the costs incurred by the injured party with the invoice and the price agreement on which it is based, unless the latter is also clearly recognisable to the injured party as being considerably higher than the usual prices. The injured party's level of knowledge and possibilities of cognition therefore already play a decisive role in the examination of the necessity of the damage expenditure pursuant to § 249 para. 2 sentence 1 BGB (cf. senate judgements of 15 October 2013 - VI ZR 471/12 and - VI ZR 528/12, both ibid). However, a simple denial of the necessity of the invoiced amount to remedy the damage is generally not sufficient to call into question the claimed amount of damage. This does not apply if circumstances arise from the agreements made which deprive the invoice of its indicative significance for the necessity of the expenses (cf. senate judgement of 7 May 1996 - VI ZR 138/95, BGHZ 132, 373, 381 f.).
b) Even within the framework of the freer position of the judge of the facts in the assessment of damages pursuant to § 287.1 of the Code of Civil Procedure, the considerations with which the Court of Appeal arrived at a reduction of the expert's fees claimed by the plaintiff here cannot be reconciled with these principles. It was not allowed to reduce the costs charged to the plaintiff by the damage assessor solely on the basis of a survey of fees by an association of experts. In doing so, the Court of Appeal failed to recognise the particular significance of the submitted invoice for the specific individual case and the situation of the injured party when commissioning an expert. Only if the injured party can recognise that the expert selected by him charges fees for his work that significantly exceed the prices customary in the industry, does the requirement of economic efficiency under the law on damages dictate that a cheaper expert who is available should be commissioned (cf. senate judgement of 15 October 2013 - VI ZR 528/12, loc.cit., marginal no. 19). Such circumstances have not been established in the case in dispute.
aa) The amount of the basic fee charged by the expert is not objectionable. The amount of the additional costs is in dispute. The fact that the plaintiff could have recognised from the outset that the expert would charge excessive ancillary costs according to the defendant's assertion is not alleged in the legal dispute and was therefore not established by the Court of Appeal. The plaintiff was not obliged to research an expert with a more favourable fee offer vis-à-vis the defendant. The plaintiff also did not have to know the result of the survey among the members of the association of experts about the amount of the usual fees. However, this means that the costs claimed do not fall outside the scope of the amount of money required to remedy the damage pursuant to § 249 (2) sentence 1 BGB from the outset.
bb) Of course, the tortfeasor is also not obliged to fully reimburse the injured party for the invoiced amounts of the specialist companies used by the latter in the context of the damage repair without the possibility of verification. In any case, the tortfeasor has the opportunity to demonstrate and, if necessary, prove that the injured party violated his duty to mitigate damages under § 254 para. 2 sentence 1 case 2 of the German Civil Code (BGB) by failing to take measures during the damage repair that a prudent and reasonable person would have taken to mitigate the damage. However, the mere fact that the incidental costs charged by the damage assessor in the present case exceed the maximum rates evident from the BVSK fee survey does not justify the assumption of such a violation by the plaintiff.
c) Since the court of appeal assumed that the costs of the expert demanded by the plaintiff were already not fully "necessary" within the meaning of § 249 para. 2 sentence 1 of the German Civil Code, the defendant has not yet had any reason to present the question of the breach of the duty to mitigate damages at trial. She must be given the opportunity to do so in order to preserve her right to be heard. The contested judgment must therefore be set aside pursuant to § 562.1, § 563.1 sentence 1 ZPO with regard to the costs of the expert and the case must be referred back to the Court of Appeal for a new hearing and decision. The Court of Appeal will have the opportunity to take into account the further mutual submissions of the parties in the appeal instance.
In all other respects, the appeal and the cross-appeal were to be dismissed.
The Court of Appeal did not err in law in finding that the plaintiff was entitled to further pre-litigation legal costs in the amount of € 43.31 plus interest. The assessment of the Court of Appeal, on which the calculation is based, that the business value relevant with regard to the pre-litigation legal costs amounts to between € 1,500 and € 2,000, is neither objectionable on legal grounds nor dependent on the question of whether and, if so, to what extent the plaintiff will be awarded the expert costs in dispute in further proceedings.
Furthermore, the dismissal of the plaintiff's claim for a declaratory judgement is not objectionable for legal reasons. It is to be assumed with the court of appeal that the plaintiff has in any case not conclusively presented a corresponding claim for damages.
AG Seligenstadt, decision of 05.10.2012 - 1 C 610/12 (3) -
Darmstadt Regional Court, decision of 17.04.2013 - 21 S 191/12 -