Loss of use -introduction:Loss of use is one of the essential damage items in accident settlement.
Here a payment of 40 days loss of use à 59,00 €/day could be reached by the judgement of the LG Bochum. In a remarkable verdict, the Bochum Regional Court, after taking extensive evidence, ordered the workshop owner to pay damages for a failed repair, which included the repair costs, a private damage assessment and, most importantly, compensation for loss of use, payment for 40 days.
Loss of use – basic principles:
Loss of use is only awarded if the injured party would in principle have had both the will to use and the opportunity to use the car if the car had not been damaged and therefore repaired or sold and was not available for this period of time. Loss of use is therefore only compensated if the passenger car is repaired after damage or a replacement vehicle is purchased and no rental car is used during this period or no other passenger car was available. Loss of use can therefore never be compensated fictitiously. Loss of use is also not always the same in terms of amount. The repair and thus the breakdown of a higher-value passenger car leads to a higher loss of use than in the case of a lower-value passenger car. Loss of use is often assessed according to tables, because sog. "Loss of use tables". In the case of older cars, the insurance company often reduces the loss of use by up to 2 levels.
Proof of prima facie evidence (prima facie evidence):
Furthermore, it is noteworthy with regard to the question of the extent to which loss of use exists, the application of the principles of "prima facie evidence" (prima facie evidence) due to the fact that the workshop foreman did not use the tool specified by the manufacturer when attempting to repair the Alfa Romeo 156 sports car, so that the Regional Court assumed in favor of the plaintiff the factual presumption that the use of the wrong tool was the cause of the damage.
A high loss of use of 40 days at €59.00/day was won before the Bochum Regional Court, I-6 O 65/12.
Loss of use, transportation costs, UPE surcharges, damage lump sum, depreciation, disposal costs, expert costs and repair costs are the common dispute positions from the damage positions after a traffic accident, which the insurer would like to reduce and also reduces. The following judgment highlights the loss of use item alone, because loss of use quickly leads to very high damages, whereby in the case at issue here the loss of use is paid by the workshop and not by the motor vehicle liability insurance.
Loss of use – judgment of the LG Bochum:
I-6 O 65/12
Delivered on 30.04.2014
As clerk of the court office
Bochum Regional Court
IN THE NAME OF THE PEOPLE
Of Mr. … Witten,
Attorney-at-law Reissenberger, Ostenhellweg 53, 44135 Dortmund, Germany,
G e g e n
Mr. … Witten,
Represented by: Attorneys-at-law .. ,
Has ruled on the 6. Civil chamber of the Bochum Regional Court
At the oral hearing of 30 September 2009.04.2014
By Judge Schulte of the Regional Court as single judge
For right recognized:
The defendant is ordered to pay to the plaintiff 4.464.07 euros plus 5 percentage points interest above the prime rate since 27 February 2009.12.2011 to pay.
In all other respects the action is dismissed.
The costs of the legal dispute shall be borne by the plaintiff in 1/3 and by the defendant in 2/3.
The judgment is provisionally enforceable, but only for the plaintiff against security in the amount of 120% of the respective amount to be enforced. In addition, the plaintiff is granted leave to avert enforcement by the defendant by providing security in the amount of 120% of the total amount enforceable against him, unless the defendant in turn provides security prior to enforcement in the amount of 120% of the respective amount to be enforced against him.
Loss of use – facts in the judgment of the LG Bochum:
T a t b e s t a n d :
Loss of use – undisputed claim:
The plaintiff claims damages from the defendant due to engine damage as a result of an allegedly improper vehicle repair. The plaintiff drove his passenger car (Alfa Romeo 156 sports car, registration number: BO-…, mileage: … Km, EZ: …) on the highway, when the on-board computer indicated emergency running, the vehicle slowed down and all control lamps lit up. The vehicle switched off, so that the plaintiff headed for a hard shoulder, notified the ADAC and had himself towed to the defendant's workshop. The defendant read out the fault memory with the Bosch KTS 540 readout device; the parties dispute the result, but at least the fault memory is said not to have indicated any specific faults. As further troubleshooting revealed that the vehicle's high-pressure pump was defective and leaking, causing fuel to run down and collect on the engine's lower cowling, plaintiff ultimately placed an order with defendant to replace a defective high-pressure diesel pump. However, the plaintiff already pointed out to the defendant that this work would require the use of special tools in accordance with the manufacturer's specifications. The defendant dismantled the high-pressure pump and sent it to the Bosch and Diesel Center of the company … For inspection and repair. Since the high-pressure pump is driven by the toothed belt, the belt tension had to be released for this work. Subsequently, the defendant mounted the repaired high-pressure pump and readjusted the timing without using any special tools by aligning it with the marks he had made during disassembly.
When the defendant subsequently started the engine, it started with strong side noises. The tests then carried out by the defendant were inconclusive with regard to the noises. An additional defective high-pressure hose of the turbocharger system that had been found in the meantime was replaced. As part of the question of further disassembly of the cylinder head, an endoscopic examination should first be carried out. However, since the defendant ultimately did not have the appropriate adapter for testing on site – who was to procure the testing equipment is disputed by the parties – the plaintiff then commissioned a repair on 18.09.2011 the motor vehicle expert office … Gmbh with the appraisal and examination of its passenger car. The inspection of the passenger car took place by the hired expert … In the premises of the defendant on 20.9.2011. According to the expert opinion, the timing should have been set correctly, but the belt tension was not.
The appointed expert first recommended replacing the timing belt of the engine control system with its belt tensioners and idler pulley to eliminate the noise. This work took the defendant on 24.09.2011, but the noise continued to persist.
After a further period of time, the expert advised the plaintiff on 05.10.2011 to take the car to another garage for repairs. The plaintiff then called for a repair on 10.10.2011, finally unloaded his vehicle with a rented car trailer. 10.2011 finally removed his vehicle with a rented car trailer. 2011 his vehicle finally with a rented car trailer from. It was taken to the workshop of the master car mechanic … A second inspection by the expert office … Was carried out on 26.10.2011 at the company … There the noises were determined now starting from the camshaft drive. The camshaft drive was subsequently dismantled. It then became apparent that the rocker arms of the 4. And 5. Cylinders were broken.
For the subsequent repair work, i.E. The replacement of the broken rocker arms, the vehicle repair store … Invoiced the plaintiff on 30.10.2011 an amount of 1.559,05 € in invoice. In addition, the plaintiff was charged an amount of € 545.00 for the expert opinion; the plaintiff claims both invoice amounts against the defendant. In addition, the plaintiff claims an amount of 59.00 €/day as compensation for a loss of use of 77 days, i.E. A total of 4.543,00 €.
Loss of use – disputed claim of the plaintiff:
The plaintiff claims that the passenger car was improperly repaired by the defendant and that the damage to the engine was caused by the defendant. The vehicle was found on 08.08.2011 and before the events in a perfect maintenance and care condition had been, in particular also the timing belt and the entire frame drive in a proper condition had been. The defendant had not properly adjusted the timing of the timing belt of the engine control system when disassembling and reassembling the high-pressure fuel pump, which was not even possible without using the necessary special tools. The procedure of the defendant by means of a "TDC marking" was not professional, so that he had acted neither professionally nor properly in his installation and removal of the timing belt, which was the reason for the later damage to the car. The incorrect disassembly and reassembly of the timing belt caused the rocker arms to tear off. In contrast, the failure of the high-pressure pump had no effect on the timing belt and its running. In the event of a failure of the high-pressure pump, the engine would no longer be supplied with diesel fuel, so that it would be forced to switch off, but a failure of the high-pressure pump could not have led to the breakage of the rocker arm. The damage to the rocker arms was therefore caused as a result of the incorrectly set timing by the defendant. The defendant should have taken care of the test equipment for the endoscopy; only when this was considerably delayed, he offered to get it from an acquaintance in order to accelerate the repair. Before picking up the vehicle, the defendant had also had various opportunities for rectification, which he had not complied with. He had returned the vehicle to the manufacturer on 30.10.Repaired and repossessed in 2011. He had previously used the car. Would also have done this during the downtime.
Loss of use – relief sought in the judgment of the Bochum Regional Court:
The plaintiff claims,
Order the defendant to pay to him 6.647.07 euros plus 5 percentage points interest above the prime rate since 27 September 2011.12.2011 and a further 131.86 euros plus 5 percentage points interest above the respective base interest rate since the 16.12.2011 to pay.
Loss of use – Defendant's motion in the judgment of the LG Bochum:
The defendant requests,
Dismiss the action.
Loss of use – disputed submission of the defendant:
The defendant claims that he properly carried out the commissioned repair and that the further damage to the engine was not caused by him. In this respect, it must be assumed that the vehicle was already in use on 08.08.2011 had no longer been "in order" and the further damage subsequently determined had already existed. Already during the removal of the high-pressure pump, he had noticed an abnormal noise and unusual, slight resistance when turning the engine, which had not been noticed previously during starting attempts. In addition, a fluttering timing belt was then noticed, which was due to incorrect belt tensioning. In this respect, he had to pay for the repair of the high-pressure pump. The disassembly of the pump did not change the tension of the timing belt. He could not be held responsible for the fact that the rocker arms of the engine had broken and the timing belt had not been properly adjusted. The bases or causes for this should already have existed. Accordingly, he owes neither reimbursement of repair costs for the repair of further damage nor the costs for the further expert opinion.
In addition, the plaintiff could not demand any loss of use even in the case of – contrary to expectations – liability, since the plaintiff had obviously been able to use another vehicle in the meantime. In addition, the plaintiff did not inform him of the necessity of dismantling the cylinder head until after approx. 16 days, namely on 10.10.2011 to inform him that he was going to pick up his vehicle. After the cause had been clarified, he had to give him another opportunity to rectify the problem. In addition, the plaintiff took too long with the assumed cooperation during the entire period. Ultimately, the plaintiff would not be entitled to 59 € per day in loss of use anyway. For further details of the facts and the dispute, reference is made to the pleadings exchanged between the parties together with the annexes. The board has taken evidence by obtaining a written expert opinion. A supplementary report by the expert DipI.-Ing.-Ing. … And in addition this in the hearing of 30.04.Heard in 2014. For the result, reference is made to the written expert opinion as well as to the minutes of the meeting of 30 September 2006.04.2014 referred to.
Loss of use – reasons for decision in the judgment of the LG Bochum:
E n s c r i p t i o n g g r ü n d e :
The action is well-founded to the extent awarded.
The plaintiff is entitled to claim damages against the defendant pursuant to §§ 631, 634 no. 3, 636, 280, 281 BGB to. According to the result of the conducted taking of evidence, the Chamber assumes that the Defendant incorrectly carried out the repair of his vehicle ordered by the Plaintiff from him in August 2012, after the latter had previously remained stationary on the highway, and thereby caused the further damage to the vehicle's engine. As recoverable damage, however, the plaintiff can only claim a total amount of 4.464.07 euros from the defendant, but a further amount is not recoverable. First of all the chamber assumes that here a breach of duty resp. There was a defective execution of the repair order given by the plaintiff to the defendant, which led to the fact that the defective action of the defendant caused a breakage of the rocker arm on the vehicle as an additional damage during the execution of the repair on the high-pressure pump, while other causes for the further damage cannot be considered in the end, so that the plaintiff is responsible for this additional damage.
According to the results of the taking of evidence and in particular taking into account the statements and findings of the expert Dipl-Ing. … Which the Board follows, it must be assumed that the further damage to the engine in the form of the broken rocker arms was caused by a faulty procedure of the Defendant in the repair of the defective high-pressure pump and here in particular in the disassembly and subsequent assembly of the high-pressure pump, because the Defendant did not use the special tool prescribed per se in carrying out the repair. In contrast, other causes previously considered by the expert as conceivable possibilities are to be ruled out on the basis of the further documents submitted and the expert's findings. Accordingly, it is to be assumed after the taking of evidence that this additional damage was caused by a faulty action of the defendant.
As a result, it is undisputed between the parties that there was a defect in the high-pressure diesel pump of the plaintiff's vehicle, which was obviously leaking, so that fuel was leaking out. This had to be repaired, the order in this regard was received by the defendant from the plaintiff. In this respect, the expert clarified that the removal of the high-pressure pump inevitably required the removal of the timing belt tension, so that here for a repair of the diesel high-pressure pump the complete disassembly of the timing belt was necessary and for the assembly inevitably the corresponding adjustments had to be carried out, whereby the manufacturer for the vehicle type in question provided for the use of special tools for this purpose, in order to enable an exact adjustment of the camshaft and crankshaft adjustment. In contrast, the procedure of the defendant with the application of markings was at best an emergency solution and in any case not professional, since a sufficiently exact adjustment was not guaranteed by this and also a possibly existing misalignment could not be detected. Since, moreover, the damage occurred immediately after the repair work and when the engine was restarted, and since the defect that occurred in the engine in the form of the broken rocker arms was, moreover, the result of the defective timing, this was, in the opinion of the expert, which the chamber follows, a weighty and compelling indication that, that this additional damage to the rocker arms was caused by improper execution of the repair during installation and removal of the high-pressure diesel pump, since no special tools were used and it was therefore not ensured that the camshaft and crankshaft settings did not match.
On the other hand, the expert ultimately ruled out other causes for which the defendant might not have been responsible or for which the defendant might have been responsible. Cannot be assumed. The expert ruled out a torn timing belt as the cause, since no one described such a torn timing belt as a conceivable cause. Nor can the defendant rely on the leakage of fuel from the diesel high-pressure pump as the cause, because a mere defect in the high-pressure pump in the form of leaks does not result in a change in the control times. A leakage of fuel from the high-pressure pump ultimately only leads to a drop in pressure, so that the engine switches off, as then happened on the highway. As explained, this does not result in a change in the timing. Insofar as the defendant has invoked the possibility that the damage could have occurred previously but not been noticed and the expert originally also considered this, at least from a theoretical point of view, the Board does not have to clarify whether the defendant should ultimately not only have asserted this theoretical cause but should also have proved it as a possibility (see below). After the further result of the taking of evidence, the Chamber assumes in any case that a previously already applied damage, which had led to the previous or simultaneous breakage of the rocker arm when the damage to the high-pressure pump occurred, is to be excluded in the result. Insofar as the expert originally suggested a conceivable jumping of the timing belt when the high-pressure pump was blocked as at least a theoretical possibility, this cannot be assumed after the further results of the taking of evidence. According to the subsequently submitted invoice of the company … From 23.08.In 2001, the removed high-pressure pump was disassembled, cleaned, defective parts were replaced and the pump was put on the test bench, where mainly seals and valves were replaced. The repair invoice for the high-pressure pump, on the other hand, did not indicate that there were any defects that would have caused the high-pressure pump to jam. Accordingly, after presentation of the invoice for the repair of the high-pressure pump, a blocking of this component with the consequence of a timing belt jumping due to this before the repair of the defendant is to be excluded. The further thought-theoretical possibility that it could have come due to an insufficient timing belt tension with the driving operation to a jumping of the timing belt, cannot be accepted after the result of the further hearing of evidence likewise. Thus, the expert … Stated that the possibility, which he had initially discussed, that the timing belt had already jumped before delivery, had been assumed to be a defect in the diesel line in view of the note made by the ADAC employee in the test report, which meant that the mixture preparation was listed as the reason for the breakdown. There were no indications of a timing defect, which was suspected to be the cause of the breakdown, and no such indications were to be found in the breakdown report.
Loss of use – the defendant's objections, 1. Objection:
Insofar as it was objected by the defendant here that it was not at all evident how intensively the inspection had taken place here, the defendant can nevertheless derive nothing from this. The expert did confirm at the oral hearing that he also assumed that the ADAC employee had carried out a normal breakdown inspection and had certainly not checked the engine in every detail. According to the descriptions, the expert assumed that the employee of the ADAC had suspected the defect in the area of the high-pressure pump according to the facts found with the leaked fuel, which inevitably also corresponds to the plaintiff's account of the course of events on the freeway from the outset. If, on the other hand, the subsequently determined damage to the rocker arms had already existed, it would have been imperative that a drop in performance had already occurred during the plaintiff's previous trip on the highway and that a corresponding noise development had also been present. However, such a description can neither be inferred from the plaintiff's presentation nor, in particular, from any statements made at that time to the ADAC employee and his statements in the test report, which, however, would have had to be expected if these circumstances had actually existed, because it can be assumed that the plaintiff described to the ADAC employee at that time the circumstances that actually existed and led to the breakdown on the highway. A decrease in performance resp. A corresponding noise development are here however at no time mentioned and thus also in the test report not taken up.
Loss of use – the defendant's objections, 2. Objection:
In addition, it must be taken into account that if these points had already been present at that time, such a fault should have been indicated by the vehicle's electronics and the expert also described it as somewhat astonishing that these faults were then not even rudimentarily apparent in the fault memory that was read out. In this respect, however, the defendant, who was no longer able to present the report, did not claim at any time that there were any indications in the fault memory.
Loss of use – the objections of the defendant, 3. Objection:
Insofar as the defendant asserted at the hearing that the damage may have been caused when downshifting and letting the clutch come out when the vehicle stalled on the highway, this cannot be assumed either. In this respect, the expert ultimately clarified that if the timing belt tension had still been properly adjusted here, this would not have been possible on the basis of normal conditions, especially since there is no evidence for the event on the highway alleged by the defendant at the hearing and this contradicts the plaintiff's submission.
Loss of use – the objections of the defendant, taking of evidence and prima facie evidence:
All in all, taking into account all the circumstances, the Board therefore assumes that the plaintiff, according to the result of the hearing of evidence, has even positively proven that the additional damage to the rocker arms was caused by improper execution of the repair work. This would apply a fortiori if, as the Board would tend to do, one were to apply prima facie evidence principles to the detriment of the defendant with regard to causality. Just the missing use of the special tool intended by the manufacturer was to a high degree suitable to create the cause for the damage which occurred afterwards. Since it was precisely this risk that materialized in the specific case, which was to be prevented or prevented by the use of special tools, if such damage occurs as a consequence of the non-use of the intended special tools, then in the opinion of the single judge making the finding, prima facie evidence actually speaks in favor of the fact that the non-use of special tools was responsible for the subsequently realized risk of the occurrence of the damage and that the lack of use of special tools thus caused the specific damage in the form of the breakage of the rocker arms. Accordingly, inevitably, when applying prima facie evidence principles in the context of causality, it would not have been the plaintiff who would have had to provide concrete evidence of causality, but rather the defendant would have had to not only assert but prove the possibility of deviating causes. The defendant was not able to provide this evidence after the result of the taking of evidence. So all in all the chamber assumes that the damage to the rocker arms was caused by a faulty repair. In this respect, the plaintiff can also demand compensation for damages, without having to give the defendant another opportunity to remedy the damage after the concrete damage has been determined. On the one hand, the defendant had sufficient time and opportunity after the occurrence of the damage to recognize the cause and the damage as a consequence of the faulty procedure and to remedy them. This did not happen. In addition, once the cause and the nature of the faulty procedure had been established, it was no longer reasonable for the plaintiff to give the defendant another opportunity to remedy the damage himself, after the defendant had caused this damage by an improper repair, although the plaintiff had already pointed out to him the compelling necessity of using special tools when he was commissioned to do so.
Loss of use – amount:
In terms of amount, however, the plaintiff is only entitled to damages in the amount of 4.464.07 euros to. This damage consists on the one hand of the undisputed repair costs in the amount of 1.559.07 euros, which the plaintiff had to spend for the repair at the master workshop … In Hagen as well as the costs for the consultation of the private expert in the amount of 545.00 euros. In addition, the plaintiff can also claim loss of use in the amount of 2.360.00 euros demand, since he can, taking into account all circumstances for a downtime of 40 days in each case, an amount of 59.00 euros replaced, which makes the total amount of 2.360.00 Euro results. On the other hand, there is no further claim for loss of use in this respect.
Loss of use – will to use:
First of all, the Board assumes that the plaintiff had a corresponding will to use the vehicle, because without the faulty procedure and if the plaintiff had returned the vehicle in time, he would have been able to use the vehicle without further ado. In addition, the Chamber assumes that a corresponding loss of use could not be compensated by the plaintiff in another way on a permanent basis. Thus, there is no evidence that there is another vehicle in the plaintiff's household which he could have used without restriction and permanently during the period to be determined subsequently. The mere fact that the plaintiff's mother, who did not live in the plaintiff's household, also had a vehicle does not constitute an opportunity to compensate otherwise. This applies all the more as it has not been proven anyway that the plaintiff was provided by his mother with her vehicle for use permanently and for the entire period as compensation. The mere fact that the plaintiff was able to use the vehicle once in a while does not constitute any other compensation possibility that would eliminate the claim for loss of use.
Loss of use – duration and deductions:
With regard to the period of time, however, the Board assumes that the plaintiff cannot demand loss of use for 77 days, rather the Board only considers a period of 40 days to be recoverable. In doing so, the chamber took into account that the period from the delivery of the vehicle to the defendant, the placing of the order for the repair of the diesel high-pressure pump, its removal as well as the sending to the Bosch and Diesel Center of the company … For the purpose of inspection, the preparation of a cost estimate and the subsequent repair as well as its return and reassembly cannot be taken into account from the outset, since this period of lack of use was caused by the original defect, but not by the erroneous action of the defendant. The additional damage occurred only after the re-installation of the high-pressure diesel pump and the subsequent starting of the engine, so that loss of use could only have been claimed from this point on anyway, because the previous period was caused by the original defect in the high-pressure diesel pump and its repair, for which the defendant is not responsible.
However, it must also be taken into account that the defendant first had to be given the opportunity to determine the cause of the noise development and to eliminate the defect in this regard, which was ultimately caused by his incorrect actions, because only after the expiry of a certain period for rectification were the relevant conditions for a claim for damages, so that only after the expiry of the further period, the claim for loss of use also existed; this applies even more so, as the plaintiff himself has given the defendant the opportunity to rectify the damage. By way of estimation, the Chamber assumes that the period up to the inspection of the vehicle by the expert was 20 days.09.2011 is to be taken into account.
Until this time, the defendant thus had sufficient time and opportunity to determine the cause of the noise and to remedy the damage caused by him in this respect. In this regard, the defendant also cannot rely on the fact that the plaintiff did not sufficiently cooperate, since it was solely the defendant's task to determine and eliminate the cause of the damage caused by his erroneous actions, for which, however, a period of approx. 3 weeks was sufficient, which is also shown by the fact that after the subsequent transfer of the vehicle to the workshop of the company … Ca. 3 weeks passed before the cause was determined and the damage repaired. Accordingly, the Chamber assumes in the result by way of estimation that the period until 20.09.2011 in the context of the calculation of the recoverable loss of use can not be taken into account, while the plaintiff from 21.09.2011 until the final return after repair of the vehicle on 30.10.2011 is entitled to a claim for loss of use. This is a period of 40 days. In the calculation, the Chamber bases the daily rate of 59.00 euros claimed by the plaintiff. Contrary to the view of the defendant, the daily rate in this regard is not translated. The tables of Sande/Danner/Küppersbusch provide indications for the value in use, according to which the daily rate of 59.00 euros, which the plaintiff uses as a basis, is not objectionable. Nothing else results from the fact that the plaintiff's vehicle at the time of the damage was ca. Was 7 years old. A reduction of the lump sum for loss of use can only be considered in the case of an otherwise reduced value in use for older vehicles. Since no other damage or defects that would have reduced the serviceability were presented, nothing is evident in this regard. If the daily rate of 59.00 euros is used as a basis and the reimbursable period of 40 days is taken into account, this results in a reimbursable loss of use amount of 2.360,00 Euro. If all recoverable damages are added up, the total claim for damages is 4.464.07 euros, a further claim, however, does not exist.