Reference book: yes
BGHZ: yes
BGHR: yes
BGB § 249 Hb

 

In order to compensate for the damage to the vehicle caused by an accident, the injured party may demand the repair costs estimated by the expert up to the amount of the replacement value without deduction of the residual value if he actually has the vehicle repaired and continues to use it. The quality of the repair is in any case irrelevant as long as the estimated repair costs do not exceed the replacement value.

 

BGH, judgement of 29 April 2003 - VI ZR 393/02 - LG Aachen
AG Eschweiler

 

At the hearing on 29 April 2003, the VI Civil Senate of the Federal Court of Justice (Bundesgerichtshof) by the Presiding Judge Dr. Müller, Judge Wellner, Judge Diederichsen, and Judges Stöhr and Zoll

found to be right:

The defendant's appeal against the judgement of the 7th Civil Chamber of the Regional Court of Aachen of 9 October 2002 is dismissed at its cost. By operation of law

Facts:

The plaintiff sought compensation for the remaining damage to his property resulting from a traffic accident, for which the defendant, as the liability insurer of the other party involved in the accident, was fully liable. The costs necessary for the repair of the plaintiff's car were estimated by the motor vehicle expert D. including the statutory value added tax at DM 24,337.24. For the remaining depreciation of the car he estimated DM 1,500; the replacement value he estimated at DM 30,300 and the residual value at DM 8,000. The plaintiff, who is a master body builder, repaired the vehicle himself. He settled his claim on the basis of the expert's report and demanded a total of DM 31,028.83, including the costs for the expert, towing and the hire of a replacement vehicle as well as general expenses incurred as a result of the accident. The defendant reimbursed DM 25,611.59 pre-trial, taking into account its offer of a residual value of DM 10,000. The plaintiff demanded a further DM 5,417.24 plus interest. He claimed, referring to a letter from the motor vehicle assessor D., that he had properly repaired the vehicle himself as a master body builder and that the damage had been repaired in the meantime. The Local Court awarded the claim in full. The defendant's appeal was unsuccessful. With the admitted appeal, the defendant continued to seek dismissal of the action.

Reasons for decision:

I.
The court of appeal bases the economic efficiency check of the damage calculation by the plaintiff on a comparative consideration between the repair costs and the costs of replacement of the vehicle, without taking into account the residual value of the vehicle. In justification, it referred to the recent case law of the Düsseldorf Higher Regional Court (DAR 2001, 125 = ZfS 2001, 111 et seq.), according to which the injured party may settle repair costs in this way on the basis of an expert's report if the amount of the estimated repair costs, including the reduction in value, was below the replacement value without taking into account the residual value and the injured party had repaired his vehicle worthy of repair with the intention of continuing to use it in such a way that it could be used safely in road traffic. The injured party only had to prove his special interest in the integrity of the damaged vehicle by a complete and professional repair if the claimed repair costs exceeded the replacement value by more than 30 %. This was not the case here. Since the plaintiff had restored the roadworthiness and operational safety of his car by repairing the damage and had subsequently used the vehicle himself for several weeks at any rate, he was entitled to settle his repair costs in full on the basis of the expert opinion.

II.
The appellate court's decision stands up to review by the appellate court. Contrary to the view of the appellate court, the calculation of damages by the court of appeal neither violates the principle of economic efficiency to be observed according to the principles of damages law nor does it disregard the prohibition of enrichment.

(1) According to section 249 of the Civil Code, whoever is obliged to pay damages shall restore the condition that would exist if the circumstance giving rise to the obligation to pay damages had not occurred. If compensation is to be paid for injury to a person or damage to an object, the injured party may demand the necessary amount of money instead of the restoration. For the calculation of motor vehicle damage, there are generally two ways of in rem restitution available to the injured party: the repair of the vehicle involved in the accident or the purchase of a (equivalent) replacement vehicle. According to the legal concept of compensation, the injured party is the master of the restitution process. He remains the master of the restitution process, even in the relationship of tension that exists between him and the injuring party or its insurer due to the conflict of interests (cf. senate judgement BGHZ 143, 189, 194). This position finds expression in the power of substitution resulting from § 249 sentence 2 BGB old version (now § 249 section 2 sentence 1 BGB) and the free choice of means to remedy the damage. Due to the freedom of disposition existing according to recognised principles of damage law, the injured party is also free in the use of the means he can claim from the tortfeasor to compensate for the damage (cf. senate judgement of 20 June 1989 - VI ZR 334/88 - VersR 1989, 1056 f. with further references; Weber, VersR 1990, 934, 938 ff.; Steffen NZV 1991, 1, 2; ders. NJW 1995, 2057, 2059 f.). He is neither obliged to repair his vehicle nor to take it to a service workshop for repair, whose prices are usually the basis of the cost estimate. Rather, it is up to him to decide how he repairs his vehicle (cf. senate judgements, BGHZ 54, 82, 86; of 20 June 1989 - VI ZR 334/88 - VersR 1989, 1056 with further references and of 17 March 1992 - VI ZR 226/91 - VersR 1992, 710). If, however, among several possibilities leading to the compensation of damage, one causes the lower expense, the injured party is in principle limited to this one. Only the amount of money necessary for this kind of damage compensation is necessary for the production in the sense of § 249 sentence 2 BGB old version (cf. senate judgements BGHZ 115, 364, 368; 115, 375, 378 each with further references; of 5 March 1985 - VI ZR 204/83 - VersR 1985, 593; of 21 January 1992 - VI ZR 142/91 - VersR 1992, 457; of 17 March 1992 - VI ZR 226/91 - VersR 1992, 710). The compensation to be granted is also limited by the prohibition of enrichment under the law of damages, which states that the injured party may demand full compensation, but should not "earn" from the damage (cf. senate judgement of 20 June 1989 - VI ZR 334/88 - ibid.). These principles of damage law cannot be realised in isolation. Rather, they are interrelated (cf. Steffen, NJW 1995, 2057, 2059 f.). Accordingly, in pursuit of the economic efficiency postulate, the integrity interest of the injured party, which enjoys priority due to the legally required in rem restitution, may not be curtailed. Damage restitution may not be limited to the most cost-effective restoration of the damaged object; rather, its objective is to restore the condition which, from an economic point of view, corresponds to the hypothetical situation without the damage event (cf. BGHZ 115, 375, 378 with further references).

According to this, the plaintiff can claim the full amount of the repair costs estimated by the expert D.. Contrary to the view of the appeal, his claim in the case in dispute is not limited by the costs of replacement (i.e. replacement value minus residual value). The recognising senate has not yet decided the underlying question of whether repair costs can be claimed in full on the basis of an expert opinion even if the repair does not fully meet the expert's requirements but only restores the vehicle to a functional condition in which it can continue to be used. The question is not answered uniformly in the case law of the courts of instance.
a) The majority of courts award repair costs up to the amount of the replacement cost. In order for the tortfeasor to be held liable beyond this amount, the injured party would have to repair the vehicle professionally for the purpose of continued use. This was required by the economic efficiency principle resulting from § 249 sentence 2 BGB a.F. and the prohibition of enrichment under the law of damages, because the residual value of the vehicle remained in the property of the injured party despite the damage (cf. OLG Nürnberg, NZV 1990, 465; OLG München, ZfS 1991, 303; previously OLG Düsseldorf, NZV 1995, 232; OLG Saarbrücken, MDR 1998, 1346; OLG Karlsruhe, MDR 2000, 697; OLG Hamm, VersR 2000, 1122; OLG Köln, ZfS 2002, 74; OLG Frankfurt, OLGR Frankfurt 2002, 81).
b) The opposing opinion allows the injured party compensation for repair costs up to the amount of the replacement value, excluding the residual value. It justifies this by arguing that the consideration of the residual value in the calculation of damages would interfere with the injured party's right to replacement and freedom of disposition. In addition, the determination of a fictitious residual value would burden the settlement of damages with further uncertainty and generally delay it (cf. OLG Düsseldorf, DAR 2001, 125 with further references; LG Wiesbaden, ZfS 2000, 250; Eggert, DAR 2001, 20; on the residual value: Senate judgement, BGHZ 143, 189; cf. also the recommendation of the 28th VGT NZV 1990, 103, to draw the line at 70 % of the replacement value).
c) The senate agrees with the latter opinion. Even if the estimated costs of repair exceed the replacement costs, this is in accordance with the principles of the law of damages. In its judgement of 15 October 1991 (cf. BGHZ 115, 364, 371 ff.), the senate already decided that in cases in which the injured party actually repairs his damaged vehicle, a reduction of the replacement value by the residual value generally does not take place in the comparative consideration between the repair costs and the costs of replacement procurement on the part of the latter, which is necessary for the determination of the economic viability limit of a repair. This principle also applies here, without the quality of the repair being relevant. If the car is actually repaired by the injured party and continues to be used, the residual value is merely a hypothetical accounting item which the injured party does not realise and which must therefore not be reflected in the balance of damages. Only the disproportionate nature of a possible in rem restitution forms the limit from which the claim for compensation of the injured party is no longer directed towards production (in rem restitution), but only towards the compensation of the value of the loss in the balance of assets (compensation) (senate judgement, BGHZ 115, 364, 367). The senate has made an exception to this if the injured party, with a special interest in the integrity of the preservation of the motor vehicle familiar to him, has the vehicle repaired at a cost of up to 130 % of the replacement value (cf. senate judgement, BGHZ 115, 364, 371 with comment by Lipp, NZV 1992, 70 et seq.; senate judgements of 17 March 1992 - VI ZR 226/91 - and of 8 December 1998 - VI ZR 66/98 - VersR 1999, 245). Whether the quality of the repair is relevant for this surcharge does not need to be decided in the present case because the repair costs here do not exceed the replacement value of the vehicle.

(3) In this situation, the court of appeal was right to allow the injured party to settle the damages on the basis of the estimated repair costs without limiting them to the replacement costs. According to the findings in the appeal judgment, which are not objectionable under the law of revision, the plaintiff's repair measures restored the roadworthiness and operational safety of the vehicle. The plaintiff also continued to use the vehicle. The court of appeal was not obliged to further clarify the nature and quality of the repair pursuant to § 287 ZPO, since the defendant did not dispute that the vehicle had been repaired to the extent confirmed by the expert D. The defendant also did not dispute that the vehicle had been repaired to the extent confirmed by the expert D. The court of appeal was not obliged to further clarify the nature and quality of the repair. The defendant also did not question that the estimated repair costs were basically justified in terms of amount.

After all, the appeal is to be dismissed with the consequence of costs under § 97 (1) ZPO7.

Müller Wellner Diederichsen Stöhr Customs