Tenor:

On the appeal of the plaintiff, the judgment of the Euskirchen Local Court - 13 C 189/07 - pronounced on 27 February 2008 is amended:

The defendants are jointly and severally ordered to pay the plaintiff - over and above the payment obligation titled in the interim settlement of 02.07.2008 - a further € 387.58 plus interest in the amount of 5 percentage points above the respective base rate since 22.12.2006 from € 338.85 since 22.12.2006 and from € 48.73 since 12.04.2007.

Of the costs of the proceedings, the plaintiff shall bear 20 % and the defendants shall bear 80 % jointly and severally, with the exception of the costs of the settlement, which shall be set aside against each other.

The judgment is provisionally enforceable. Both parties may avert enforcement by providing security in the amount of 120 % of the amount enforceable on the basis of this judgment unless the respective creditor provides security in the amount of 120 % of the amount to be enforced before enforcement.

The appeal is admitted.

 

G r o u n d s I.

The plaintiff claims compensation from the defendants for the remaining damage to property as well as damages for pain and suffering arising from a traffic accident on ##.##.###, for the consequences of which the defendants are indisputably solely responsible.
Pursuant to § 540 para. 1 sentence 1 no. 1 of the Code of Civil Procedure, reference is made to the factual findings of the contested judgement.

The district court dismissed the action and allowed the appeal against the judgement. In order to justify the dismissal of the action, it stated that the plaintiff had to refer to the hourly rates of the company T & X in his fictitious settlement. The plaintiff could have had his vehicle repaired at the more favourable hourly rates quoted by the second defendant without any significant disadvantages. In particular, the plaintiff was not disadvantaged by the fact that the workshop of the company T & X was further away from his place of residence than the workshop of the company H, which was "just around the corner" and whose hourly rates the plaintiff used as a basis for his invoice. In particular, the plaintiff's duty to mitigate damages required him to base his settlement on the more favourable hourly rates. The plaintiff was also not entitled to the payment of further damages for pain and suffering. The accident-related injuries evident from the medical certificates submitted were adequately compensated for by the payment of the € 300.00 already made by the second defendant.

The plaintiff's appeal, which was filed in due form and time and is well-founded, is directed against this, with which he continues to pursue his first-instance claims in their entirety. In support of his appeal, the plaintiff argues that he does not have to be referred to a repair at the company T & X. The plaintiff is not entitled to have his car repaired. In its judgement of 29.04.2003 - VI ZR 38/02 - (so-called "Porsche judgement"), the Federal Supreme Court (BGH) had indeed decided that the injured party, who had an easily accessible, cheaper and equivalent repair option, had to allow himself to be referred to this. In the present case, however, the proximity of the company T & X was not to be assumed. This company was 23 km away from his house, whereas company H was only about 500 metres away. It was also irrelevant that the company T & X had a free pick-up and delivery service, which, incidentally, had only been asserted by the defendants in the course of the proceedings at first instance and had been disputed by him. Moreover, contrary to the opinion of the district court, damages for pain and suffering in the amount of at least € 650.00 were appropriate.

The defendants defend the contested judgment, repeating and deepening their submissions at first instance, and request that the appeal be dismissed.

At the oral hearing on 02.07.2008, the parties concluded an interim settlement in which the defendants undertook to pay the plaintiff a further € 200.00 to compensate for the asserted claim for damages for pain and suffering.

For further details of the facts and the dispute, reference is made to the pleadings exchanged at both instances and to the documents on file.

 

II.

The admissible appeal is well-founded to the extent still to be decided.

1.
Due to the traffic accident of ##.##.####, the plaintiff is entitled to a further claim for compensation for property damage in the amount of € 338.85 from §§ 823 para. 1 BGB, 7 para. 1 StVG, 3 no. 1 PflVG in addition to the amount already settled by the defendants.

a)

It is undisputed that the defendants are fully liable to the plaintiff for the consequences of the accident. The only point of disagreement between the parties is whether the defendants, in the settlement made by the plaintiff on the basis of an expert opinion, are also liable to pay compensation for the labour costs for bodywork and paintwork shown in the expert opinion of Mr. Dipl.- Ing.U, which are based on an hourly rate of € 89.50 and a paint material surcharge of 40 %, or whether their obligation to pay compensation is limited to the hourly rates of T & X GmbH (labour costs for bodywork: € 73.00/ labour costs for painting incl. paint material surcharge: € 98.00).

b)

The type and scope of the compensation to be paid shall be determined according to the provisions of §§ 249 ff. BGB (German Civil Code) in the version of the Second Act amending the provisions of the law on damages of 19 July 2002 (BGBl. I, p. 2674), which, according to Art. 229 § 8 para. 1 EGBGB (Introductory Act to the German Civil Code), applies to all damaging events after 31 July 2002. The objective of restitution under the law of damages is not limited to the restoration of the damaged object according to the settled case law of the highest courts; rather, it consists in a comprehensive manner of restoring a condition which, from an economic point of view, corresponds to the hypothetical situation existing without the damaging event (cf. BGH, NJW 2007, 67, 68). In this context, according to the case law of the Federal Court of Justice, the injured party generally has two options for in rem restitution in the event of damage to a motor vehicle, namely, on the one hand, the repair of the vehicle involved in the accident and, on the other hand, the purchase of an equivalent replacement vehicle (cf. BGH, NJW 2005, 2541). If the injured party - as in the present case - refrains from purchasing a replacement, he may claim compensation for the objectively necessary costs of a fictitious repair pursuant to § 249 para. 2 sentence 1 BGB. According to the case law of the Federal Supreme Court, the injured party is generally entitled to compensation for the repair costs incurred in a brand-affiliated authorised workshop, irrespective of whether he actually has the car fully repaired, repaired to an inferior standard or not repaired at all (cf. BGH NJW 2003, 2086).

However, 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. However, it is generally sufficient that he calculates the damage on the basis of an expert opinion obtained by him, provided that this 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. For in the effort to objectify the need for restitution in an economically reasonable manner within the framework of § 249.2 sentence 1 BGB, the basic concern of this provision must not be lost sight of, namely that the injured party should receive the fullest possible compensation for the damage in the event of full liability of the tortfeasor (cf. BGH NJW 2003, 2086, 2087). In the present case, the defendants do not dispute that the hourly rates used by Dipl.-Ing. U in the damage report of 6 December 2006 correspond to the labour costs incurred for a repair in a brand-affiliated specialist workshop, but merely refer to the fact that T & X GmbH charges more favourable hourly rates to customers whose repair costs are borne by the second defendant on the basis of a partner contract existing with the second defendant.

In principle, the defendants have to admit that the injured party, who easily has access to a cheaper and equivalent repair option, must also be referred to this option according to the case law of the Federal Supreme Court (see BGH, NJW 2003, 2086, 2087). However, such a constellation cannot be assumed in the case in dispute.

In this context, the court does not fail to recognise that, according to the defendant's factual evidence, T & X GmbH is a brand-affiliated specialist workshop, so that it is also not relevant to the question, which is disputed in the case law of the Regional Court, whether, in those cases in which the injured party settles a fictitious account on the basis of an expert opinion and is specifically shown by the tortfeasor or his insurer the possibilities of a technically perfect and cheaper repair in a non-brand-affiliated - independent - specialist workshop. insurer, the injured party must allow himself to be referred to these repair options (e.g. LG Potsdam, NJW-Spezial 2008, 107; LG Berlin, NJW-RR 2007, 20, 21; LG Heidelberg, judgement of 25 April 2006 - 2 S 55/05; LG Heidelberg, judgement of 25 April 2006 - 2 S 55/05).04.2006 - 2 S 55/05, cited in juris; also: LG Bonn, judgement of 05.03.2008, 5 S 168/07; LG Bonn, judgement of 15.05.2007, 8 S 8/07; LG Mainz, judgement of 31.05.2006, 3 S 15/06, cited in juris; LG Trier, judgement of 20.09.2005, 1 S 12/05, BeckRS: 2006 No. 02543; AG Aachen, judgement of 14.06.2005, 5 C 81/05, BeckRS: 2005 No. 09994).

The repair option at T & X GmbH pointed out to the plaintiff by the second defendant is not an equivalent repair option to which the plaintiff would have to be referred even if the repair were actually carried out, because T & X GmbH is connected to the second defendant by a partnership agreement. by means of a partner contract, on the basis of which those customers for whose repair costs the second defendant is responsible are offered - according to the defendant's own factual submission due to the large number of repairs arranged - special conditions that are more favourable than the regular hourly rates of brand-affiliated specialist workshops. In the opinion of the board, this would contradict the intention of § 249 para. 2 BGB. The provision enables the injured party to compensate for the damage by fictitiously calculating the repair costs without being obliged to entrust the injured party with the injured legal good for in rem restitution (see Heinrichs in: Palandt, BGB, 67th ed., § 249 marginal no. 5; Schiemann in: Staudinger, BGB, Revised 2005, § 249 marginal no. 210). According to the case law of the Federal Court of Justice, the basic purpose of this provision, to give the injured party the opportunity to remedy the damage on his own initiative, must not be lost sight of even when trying to objectify the need for restitution in an economically reasonable manner within the framework of § 249.2 sentence 1 BGB (cf. BGH, NJW 2003, 2086). However, the reference of the injured party to a specialist workshop that is economically linked to the motor vehicle liability insurance of the tortfeasor devalues the right of the injured party to be able to carry out the repair on his own at usual conditions. In addition, due to the economic connection of the repair shop with the defendant insurer, he must fear - even if the fear does not materialise in concreto - that the latter will also perceive (comprehensible) interests of the tortfeasor to keep the damage as low as possible during the repair (in agreement: AG Nürtingen, NJW 2007, 1143 f.; also LG Köln, judgement of 29.01.2008, 11 S 1/07).

Accordingly, the net repair costs determined by the expert opinion of Dip.-Ing. U in the amount of € 2,462.85 minus an improvement in value in the amount of € 120.65 are to be reimbursed. Taking into account the pre-court payment of the defendant on the repair costs of € 2,003.35, an amount of € 338.85 remains.

2.

The claim for reimbursement of non-allowable, pre-court lawyer's fees in the amount of € 48.73 as well as the interest claim follow from §§ 280 paras. 1 and 2, 286, 288 para. 1 sentence 2, 286, 288 BGB. The obligation to pay interest begins analogously to § 187 (1) BGB in the case of pendente lite interest on the day after service.

3.

The decision on costs is based on §§ 92 para. 1 sentence 1 2nd alternative, 98 sentence 1 ZPO. The decision on provisional enforceability is based on §§ 708 no. 10, 711 ZPO.

4.

The Chamber allows the appeal because, in view of divergent decisions of the courts of instance, the safeguarding of a uniform case law requires a decision of the appellate court (§ 543 para. 2 nos. 1 and 2 ZPO).