AG Nuremberg sentences HUK-Coburg to pay remaining SV fee
The injured party brought an action against HUK-Coburg. HUK-Coburg had had the Controlexpert company reduce the hourly rates, the vehicle wash and the final cleaning, the additional paintwork to avoid a colour difference and the working days. The SV C. prepared an 8-page statement on this. HUK-Coburg was ordered to reimburse both the reduced fee from the damage appraisal and the fee from the supplementary appraisal. The supplementary expert opinion was appropriate and necessary for the prosecution.
In its judgement of 2 May 2008 - 34 C 1589/08 - the Nuremberg District Court ordered HUK-Coburg to pay the plaintiff € 623.63 plus interest. The costs of the legal dispute were imposed on the defendant.
From the reasons for the decision:
The admissible action is fully justified. The plaintiff has a claim against the defendant for the remaining damages. The costs for the expert opinions of the expert office C. according to invoices of 22.10. and 20.12.2007 are to be reimbursed in full by the defendant, as these costs fall under the necessary production expenses according to § 249 BGB and were necessary for the plaintiff's appropriate prosecution. The appraisal of the vehicle involved in the accident serves to restore the vehicle, which the injured party can demand (cf. BGH in NJW-RR 1989, 956). Expert costs are only exceptionally not to be reimbursed if there is a so-called trivial damage case or if the injured party is at fault for the selection of the motor vehicle expert or if the injured party has caused the incorrectness of the expert report himself. However, such a case constellation is not involved in the present case.
The amount of the remuneration charged by the SV for his expert opinion alone cannot in principle constitute a selection fault on the part of the plaintiff, because the amount of the expert's remuneration is in fact unsuitable to serve as a quality standard for the expert opinion and thus for the expert, especially since the injured party is in principle entitled to consult the expert of his confidence. In accordance with the principle of the law of damages, according to which the manner in which the damage is remedied is in principle at the discretion of the injured party, it is the general opinion in case law that the tortfeasor must reimburse the injured party in full for the costs of the motor vehicle expert's report even if they are excessive. The expert called in after an accident is not the vicarious agent of the injured party (cf. OLG Hamm in DAR 1997, 275). In relation to the tortfeasor, it is also not the injured party's task to make price comparisons and to determine the cheapest expert (cf. LG Hagen in NZV 2003, 337). The risk of an overpriced expert opinion is borne solely by the tortfeasor and his insurance company, but not by the injured party (AG Berlin-Mitte in DAR 2002, 459).
The court considers the BVSK fee survey to be a suitable basis for estimating the costs of the expert on the basis of which the costs of the expert can be calculated. In particular, the expert was also allowed to make photocopies. The injured party was also allowed to consider it necessary to obtain a supplementary expert opinion due to the defendant's objections.
According to all of the above, the injured party is to be reimbursed for the expert costs claimed in their entirety.