A motorist is not entitled to reimbursement of the costs of conventional dent removal and painting according to the cost estimate if the specialist garage also offers the modern dent removal technique (pusher technique).
§ 249 para. 2 p.1 BGB (§ 249 p.2 BGB a.F.)
If the "paint damage-free dent removal technique for hail/chestnut and parking dents" leads to in rem restitution of a motor vehicle, there is in any case no claim to the costs of conventional dent removal with subsequent painting in accordance with the cost estimate of a specialist garage if the latter also offers the dent removal technique.
Karlsruhe Higher Regional Court- Judgment of 21 August 2003- 19 U 57/03
Karlsruhe Higher Regional Court
19th Civil Senate in Freiburg
In the name of the people
In the litigation
- Defendant/ professional plaintiff-
Legal representatives to 1 and 2:
due to Damages
the 19th Civil Senate of the Higher Regional Court of Karlsruhe, at the oral hearing of
07 August 2003 with the cooperation of
Presiding Judge at the Higher Regional Court Dr. Eith
Judge at the Higher Regional Court Lauven
Judge District Court Kuhn
for Law recognised:
The plaintiff sought damages because the defendant no. 2 had damaged the plaintiff's vehicle parked next to it with his car door.
By the contested judgement, to the facts of the case and the reasons for the decision of which reference is also made because of the details of the parties' submissions at first instance, the Local Court (Amtsgericht) Freiburg granted the claim for payment of € 610.94.
In their appeal, the defendants continue to pursue their claim for dismissal. They do not consider it sufficiently established that the door of the plaintiff's vehicle was caused by a deliberate act of the defendant no. 2 (hereinafter only: the defendant). In fact, the plaintiff had slammed the door against the defendant. At most, the defendant had made a reflex-like counter-movement, which could not lead to liability on the part of the defendant. Finally, no more than € 165.00 in damages could be claimed. The estimate of € 565.94 submitted by the plaintiff was far higher. According to the motor vehicle expert at the hearing of the Local Court of 18.02.2003, the damage could be repaired by a very modern repair method for a maximum of 120.00 €. The district court of Freiburg had wrongly assumed that the plaintiff did not have to be referred to this cheaper repair method from the point of view of mitigation of damages because it was not yet particularly widespread. This was because research had shown that in particular the car dealership E. in S., according to whose cost estimate the plaintiff had quantified his repair damage, was able to repair the damage to the plaintiff's vehicle according to this method, the so-called 'paint damage-free dent removal technique for hail/chestnut and parking dents'. Apart from Autohaus E., two or three other large car repair shops in S. were also proficient in this repair technique. The objection was not out of time, as the cost estimate of the E. company had only been made available to the plaintiff during the oral proceedings at first instance. Without knowledge of the cost estimate and the repair method, no substantiated objections could have been raised in time.
The defendants request that the judgement of the Local Court of Freiburg of 4 March 2003 - 2C 3424/02 - be set aside and the action dismissed.
The plaintiff requests that the appeal be dismissed.
The plaintiff defended the contested decision in his written statement of 29 July 2003, which was received after the expiry of the time limit for appeal set by 16 July 2003 in accordance with § 521.2 of the Code of Civil Procedure. The defendant had actively and deliberately pushed back the door. The plaintiff also did not have to be referred to another method of repair, as this would not certainly lead to a 100% repair of the damage. The car dealer L. named by the defendants would not use the repair method. There was also a risk that the repair method would result in a hairline crack in the paintwork that was not visible to the naked eye. It was disputed that the company H. carried out such a repair method. The court had therefore rightly assumed that the plaintiff did not have to engage in the relatively new and not yet widespread repair method.
For further details of the parties' submissions on appeal, reference is made to the contents of the exchanged pleadings, which were the subject of the oral hearing before the senate. The senate took evidence by means of a supplementary oral expert opinion of the expert Dipl. Ing. K.-H. S.
1. the appeal is admissible.
The Higher Regional Court has jurisdiction pursuant to § 119.1 no. 1 b GVG in the version of Article 1 no. 6 of the Act on the Reform of Civil Procedure of 27 July 2001, as the defendant no. 2 had his general place of jurisdiction in Switzerland at the time of the first instance jurisdiction (see BGH, judgement of 13 May 2003 - VI ZR 430/02 - documented in Juris).
The appeal is mainly successful.
a) The defendant no. 2 is liable - in accordance with the German law applicable pursuant to Article 40 para. 1 EGBGB - pursuant to §§ 823 para. BGB and the defendant no. 1 as liability insurer pursuant to §§ 3 PfIVG, 6 para. 1, 4,2 para. 1 b AuslPflVG (Gesetz über die Haftpflichtversicherung für ausländische Kraftfahrzeuge und Kraftfahrzeuganhänger vom 24. The plaintiff was held jointly and severally liable for the damage incurred in accordance with §§ 3 PfIVG, 6.2.b AuslPflVG (Law on Liability Insurance for Foreign Motor Vehicles and Motor Vehicle Trailers of 24 July 1956 - Federal Law Gazette I, 667 - in conjunction with Article 6 of the Third Law on the Implementation of Insurance Directives of the Council of the European Community of 21 July 1994 - Federal Law Gazette I, 1630).
After the taking of evidence it is proven that the defendant damaged the plaintiff's vehicle by pushing back his car door at least in the context of an avoidable act, which is sufficient for an act of injury within the meaning of § 823 BGB. It was undisputed that there was a dent of about 2 - 3 cm, which the police officer who was called in noticed. It was not claimed that the dent had already been in the vehicle before. According to the expert's explanations, the damage could not be technically explained by the defendant's account that the plaintiff had slammed the door and that it had bounced back from the defendant's body. Rather, the active assistance of the defendant was required. This speaks for the correctness of the course of events of the damage testified to by the witness R., according to which the defendant had pushed her door against the plaintiff's car with her rear end.
b) As material damage, however, the plaintiff cannot demand the repair costs in the amount of the submitted cost estimate of the car dealer E. for € 565.94, but only € 120.00.
According to § 249 of the German Civil Code, whoever is obliged to pay damages must restore the condition that would exist if the circumstance obliging him to pay damages had not occurred. If damages have to be paid because of injury to a person or damage to an object, the injured party may demand the necessary amount of money instead of the restoration.
According to the legal picture of compensation for damages, the injured party is the master of the restitution process. This position is expressed in the power of substitution resulting from § 249 sentence 2 BGB a.F. (now § 249 section 2 sentence 1 BGB) and the free choice of means to remedy the damage. If, however, among several possibilities leading to the compensation of damage, one causes the lower expenditure, the injured party is in principle limited to this one. Only the amount of money required for this type of damage repair is necessary for the purpose of the § 249 sentence 2 BGB a.F. applicable here - after the vehicle was damaged on 21.5.2002 (cf. BGH NJW 2003, 2085; BGHZ 115, 364, 368; 115, 375, 378 each with further references).
aa) With the objection that the repair costs according to the submitted cost estimate of the car dealer E. were translated, the defendants were not precluded pursuant to § 531.2 no. 3 ZPO, because they were only confronted with the possibility of a more favourable repair by the expert's statements at the hearing of 18 February 2003 at first instance. They were therefore prevented from asserting their new findings that E. GmbH also carried out this repair method before the end of the oral proceedings at first instance.
In his statement of 29.07.2003 the plaintiff claims that the companies L. and H. do not use the modern repair method mentioned by the expert, but he does not dispute that the company E. is able to carry out the cheaper repair method. However, he claims that this repair method does not lead to a 100% repair of the damage.
Admittedly, the statement of 29.07.2003 was submitted after the expiry of the time limit for lodging an appeal, which is why the submission is late pursuant to § 530 ZPO, so that § 296 (1) ZPO applies. The delay is not excused. However, the senate was able to summon the expert Dipl. Ing. K-H. S. to the hearing on 7.8.2003 within the framework of preparatory measures according to § 273 para. 2 no. 4 ZPO and thus prevent a delay of the legal dispute.
bb) As the expert explained at the Senate hearing, the "paint damage-free" dent removal technique for hail/chestnut and parking dents" referred to by the defendants is a modern repair method that has been in use since the mid-1990s and is gaining ground, which makes it possible to repair minor damage such as hail or bump damage inexpensively and without painting. The repair method had been developed by the vehicle manufacturers themselves to eliminate small damages during the production process of new vehicles before delivery. The method is applicable if the paint surface is not damaged or weathered due to age and has not yet been pre-repaired. Several companies in the catchment area of the plaintiff's place of residence were able to carry out a repair according to this new method. Thus - according to the expert - the dent on the plaintiff's vehicle could be repaired for an amount between € 50 and € 120.
According to the inspection of the plaintiff's BMW carried out by the expert during the first instance appraisal, the dent had a size of approx. 1.5 cm². Despite the year of construction of the vehicle, 1997, the paint - according to the expert - was of such a good quality that the method could be applied - also in view of the age of the paint. Although it was true that hairline cracks - invisible to the naked eye - could occur during the repair, the formation of cracks was fundamentally unlikely. Possibilities of defects inherent in the repair could also occur with the conventional repair method. The risk of defects was not increased with the new repair method. On the contrary, both methods were comparable in this respect and their overall repair success was equivalent.
In accordance with the statements of the expert Dipl. Ing. K-H. S., the plaintiff can therefore only claim the estimated repair costs admitted by the defendants in the amount of € 120.00 as the amount of money necessary to restore the damaged vehicle.
c) With the lump sum for expenses in the amount of € 20.00, which is not contested in the appeal, and the expenses for the cost estimate in the amount of € 25.00, the plaintiff is entitled to a claim in the amount of € 165.00 in total.
d) The interest claim results from §§ 286, 288 BGB.
In all other respects, the action was dismissed and the further appeal dismissed.
The decision on costs is based on § 92 para. 1 ZPO, the further subsidiary decisions on §§ 543, para. 2; 708 no. 10, 713 ZPO.
Dr. Eith Pres. Judge at the Higher Regional Court
Lauven Judge at the Higher Regional Court
Kuhn Judge at the Regional Court