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Vehicle damage (fictitious or specific settlement, 4-stage model of the BGH, residual value offers)
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Within the framework of §§ 249 ff. BGB (German Civil Code), settlement variants have been developed in practice for road accidents, which apply regardless of whether the claim for damages is based on the StVG or the standards of tort law.
1.Settlement on the basis of an expert opinion (fictitious settlement of damages) or settlement of the actual repair costs (concrete calculation of damages)
In principle, the injured party is free to decide whether to have the damaged vehicle repaired (in a specialised workshop), whether to repair it himself or whether to keep it unrepaired or sell it.
He then also has the choice between settling with the other party on the basis of the actual repair costs (concrete damage calculation) and settling on the basis of an expert opinion (fictitious damage calculation, also possible with a cost estimate).
In both cases, the ‘necessary costs’ of manufacture within the meaning of § 249 II BGB are reimbursed. The right to choose is referred to as the injured party's freedom of disposition.
It is important to note that VAT is not to be reimbursed when calculating the fictitious repair costs (§ 249 II 2 BGB). This is only reimbursed if it can be proven to have actually been incurred.
The fictitious damage settlement is of interest to the injured party if they do not have their vehicle repaired at all or only in a makeshift manner, or if they carry out at least some of the repair work themselves. He is then entitled to the difference for settlement.
If the injured party makes a financial gain from the traffic accident, this only partially conflicts with the prohibition of enrichment under the law on damages, as his own services or any remaining damage are usually offset by the gain, i.e. the injured party is not enriched in total.
2. The vehicle damage: Repair costs or replacement value (economic total loss), the 4-stage model of the BGH
Another important distinction concerns the settlement of (real or fictitious) repair costs as opposed to the replacement value.
Due to the principle of economic efficiency (§ 251 II BGB), the injured party can only ever choose the more favourable of the two settlement methods to remedy the damage. As soon as the replacement cost (= WBA, i.e. the difference between the replacement value and the residual value to be realised) is lower than the repair costs, the injured party may no longer have his vehicle repaired (economic total loss).
However, case law recognises that the injured party has a special interest in the integrity of their previous vehicle, which is taken into account with a flat-rate premium of 30% on the replacement value. The injured party knows his previous vehicle, its operation, state of maintenance and history and is unintentionally placed in this situation.
From this system, the BGH has worked out 4 case groups for claims settlement, also known as settlement (of the vehicle damage) according to the ‘4-stage model’ of the BGH:
In order to cover all permissible settlement variants in individual cases, the gross values of the repair costs plus the mercantile reduction in value must be compared with the replacement value (= WBW) or the replacement cost (= WBA, i.e. replacement value less residual value).
The net values take the place of the gross values if the injured party is entitled to deduct input tax. The gross values can only be deducted if the VAT has actually been incurred (§ 249 II 2 BGB). In principle, the injured party must choose the more favourable settlement method, but at the same time the special interest in integrity must be taken into account.
1st stage: Repair costs are below the replacement cost
If the repair costs are less than the replacement cost, the injured party is entitled to reimbursement of the repair costs (BGH, judgement of 15 October 1991, case reference: VI ZR 67/91). VAT is only reimbursed to the extent that it has been incurred and can be proven. The repair costs can be invoiced both notionally according to an expert opinion or cost estimate as well as concretely after submission of the invoice.
2nd stage: Repair costs between replacement cost and replacement value (= ‘uHu’ (less than one hundred per cent of the replacement value))
Variant a): Fictitious settlement of repair costs for continued use
If, in the event of accident damage, the repair costs are higher than the difference between the replacement value (RAV) and the residual value, but lower than the replacement value (RAV), the full compensation is due for payment immediately if the vehicle has been demonstrably repaired (Lübeck District Court, judgement of 13 January 2011, ref.: 22 C 2797/10). A specific repair invoice does not have to be submitted. However, the injured party must continue to use the vehicle for 6 months in order to recover the full net repair costs (BGH, judgement of 23 May 2006, Ref.: VI ZR 192/05). The vehicle must actually have been repaired in a roadworthy manner, the quality of the repair is irrelevant (BGH, judgements of 29 April 2003, ref.: VI ZR 393/02; of 23 May 2006, ref.: VI ZR 192/05 and of 29 April 2008, ref.: VI ZR 220/07).
Variant b): Fictitious or concrete settlement in the event of resale
In this case, the injured party receives the replacement value less the residual value, as the residual value has already been compensated by the sale of the vehicle (BGH, judgement of 07.06.2005, AZ: VI ZR 192/04). The vehicle damage can then only be settled as a total loss.
Variant c): Specific settlement after repair:
If, on the other hand, the injured party has his vehicle completely repaired, he can demand gross compensation for the repair costs without any further use being relevant (BGH, judgement of 23 November 2010, AZ: VI ZR 35/10).
3rd stage: Repair costs plus depreciation amount to up to 130% of the replacement value
Normally, this would constitute a total loss and this would also be notionally billable according to the expert opinion.
In this case, however, the injured party can also have the vehicle repaired, i.e. invoke the special integrity interest of the injured party, but must then continue to use the vehicle for at least 6 months. If this does not take place, the claim is limited to the replacement cost (BGH, judgement of 15 February 2005, AZ: VI ZR 172/04).
The forecast made in the expert's report is decisive for the value limit. This means that the repair order may be placed if the forecast repair costs are below 130%. The insurer bears the forecasting risk that the actual repair costs will be higher after all. In contrast, the repair company bears the forecasting risk in the case of cost estimates.
Only in individual cases is a repair with used parts permissible if this nevertheless corresponds to a professional repair in line with the expert opinion (BGH, judgements of 2 June 2015, AZ: VI ZR 387/14 and of 14 December 2010, AZ: VI ZR 231/09). However, if the repair deviates from the specifications of the expert opinion, only the restoration costs are to be reimbursed by the insurance company.
Unjustified discounts by the repair company to maintain the value limit are not recognised by case law (BGH, judgement of 08.02.2011, AZ: VI ZR 79/10).
Stage 4: Repair costs exceed 130% of the replacement value
If the repair costs calculated in the expert opinion are even more than 30% above the replacement value, the repair is generally considered uneconomical.
If a repair is nevertheless carried out, the damage cannot be split into an economically reasonable part (up to 130% of the replacement value) and a part to be borne by the claimant. The injured party then only has a claim in the amount of the replacement cost, as in the case of a total loss (BGH, judgements of 15 October 1991, AZ: VI ZR 67/91 and of 8 December 2009, AZ: VI ZR 119/09).
3. Residual value
The residual value is the remaining value of the vehicle damaged in a road accident. This becomes relevant if the vehicle damage is to be settled as a total loss.
When exercising the right of substitution according to § 249 II BGB, the injured party may sell his vehicle at the value determined on the market by the expert engaged by him (BGH, judgement of 10.06.2010, Ref.: VI ZR 316/09).
The expert determines the specific residual value taking into account the specific damage and regional market conditions.
A high residual value is of interest to the insurer, as the amount to be compensated is then reduced accordingly in the settlement of the total loss (the insurer settles the restoration costs = replacement value minus residual value).
In such cases, the insurer then attempts to minimise the damage in its favour by presenting an improved residual value offer. For the injured party, the total amount remains the same. As a rule, the injured party does not have to accept higher purchase prices from special residual value buyers from the insurer.
The injured party must accept the improved residual value offer, particularly in the case of notional settlement, if this represents an acceptable offer. The injured party can only defend himself against this if he can prove an earlier sale (for the amount stated in the expert opinion).
If the injured party finds his own and improved offer after the expert opinion has been prepared, he does not have to disclose this, i.e. he does not have to offset it, as it was due to his own economic skill to go looking again himself.
In such cases, a ‘set-off’ will only be made if the insurance company also finds an improved offer (in relation to the expert opinion).
If the insurance company's offer is even higher, the injured party discloses the (improved) sale to limit the damage.
If the injured party's offer is still higher, he must at least accept the insurance company's improved offer.
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