The loss of use resp. The compensation for loss of use:The loss of use resp. The compensation for loss of use in particular is one of the main items of damage in the settlement of accidents.
Loss of use compensation judgment of the judgment of the Bochum Regional Court, I-6 O 65/12, dated 30.04.2014:
Already in 2014, it was possible to obtain here judgment of the Bochum Regional Court, I-6 O 65/12, dated 30.04.2014 presented. In the decision there a payment of 40 days loss of use à 59,00 €/day could be reached. The Regional Court of Bochum has after extensive evidence in a remarkable judgment the workshop owner for an unsuccessful repair to compensation, which includes the repair costs, a private damage assessment and above all compensation for loss of use, payment of 40 days.
In the judgment of the AG Essen-Steele of 10.12.In 2014, the court elaborated on the frequently disputed details for granting compensation for loss of use.
Compensation for loss of use – basic principles:
Compensation for loss of use is only awarded if the injured party would have had both the will to use and the possibility 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. A compensation for loss of use is therefore only made if the car is repaired after damage or a replacement vehicle is purchased and no rental car is used during this period or no other car was available. A compensation for loss of use can therefore never be fictitious. Compensation for loss of use is not always the same, even in terms of amount. The repair and thus the loss of a higher-value passenger car leads to a higher compensation for loss of use than in the case of a lower-value passenger car. The compensation for loss of use is often calculated according to tables, because so called "loss of use compensation" is not a standard. "Loss of use tables". In the case of older passenger cars, the insurance company often reduces the compensation for loss of use by up to 2 levels.
Compensation for loss of use, transport costs, UPE surcharges, lump sum damages, depreciation, disposal costs, expert costs and repair costs are the common disputed items from the damage items after a traffic accident, which the insurer wants to reduce and also reduces. The following judgement puts out alone the position loss of use compensation, because the loss of use compensation leads fast to a very high damage.
Compensation for loss of use – decision of the AG Essen-Steele:
Enforceable execution 8 C 97/14
Announced on 10.12.2014
…, court employee
Essen-Steele Local Court IN THE NAME OF THE PEOPLE Judgment
In the legal dispute of Mr. … Dortmund, plaintiff, attorney at law Reissenberger, Ostenhellweg 53, 44135 Dortmund, against the … Versicherung AG, represented by the. D. D. Board of Management, …, Defendant, represented by …, the Essen-Steele Local Court ruled in written proceedings with a deadline for the submission of written submissions of 03.12.2014 at 10.12.2014 by the judge … Found for right: The defendant is ordered to pay the plaintiff EUR 826.00 plus interest in the amount of 5 percentage points above the prime rate from 02.04.2014 to be paid. ..
Compensation for loss of use – facts in the judgment of the AG Essen-Steele:
Facts: The plaintiff asserts a claim against the defendant for payment of compensation for loss of use in.
Compensation for loss of use – undisputed presentation:
The plaintiff is the owner of a BMW vehicle with the registration number DO .. .
On 02.09.2013 at around 4:20 p.M. There was a traffic accident on the A40 in Essen involving the plaintiff's vehicle, which was caused solely by the vehicle insured with the defendant with the license plate number … … The driver of the vehicle insured with the defendant drove in the right rear area of the plaintiff's vehicle on this. Immediately after the collision, the vehicle insured by the defendant was between the plaintiff's vehicle and another vehicle traveling in the lane to the right of the plaintiff's vehicle. The full liability of the defendant for the accident in question is not in dispute between the parties. On the day after the accident, 03.09.In 2013 the plaintiff instructed his legal representative to represent his legal interests. On the same day, the plaintiff from the office of his legal representative contacted the expert …, which the plaintiff an appointment for the assessment of his vehicle for the 05.09.2013 offered. By letter from his legal representative dated 04.09.In 2013, the plaintiff approached the defendant for the first time, provisionally quantified the damages incurred by him due to the accident event with EUR 4.525.00 and demanded the defendant, setting a deadline of 10 days, to affirm its obligation to accept responsibility and to pay the quantified damages. On 05.09.In 2013, the plaintiff commissioned the expert … To prepare a damage appraisal, which the expert … Issued on 09.09.2013 and charged to the plaintiff according to the invoice of the same date with an amount of EUR 636.06. The expert opinion was received by the plaintiff's legal representative on 10.09.2013 to. The plaintiff also did not receive the expert opinion of the expert … Before this day. In the expert opinion of the expert Elblein dated 09.09.2013 states, among other things:
"Loss of use per day € 59.00, repair time approx. 04 – 05 working days"
By letter from the lawyer dated 16.09.In 2013, the plaintiff quantified to the defendant the damages incurred by him as a result of the accident event, submitting the expert opinion of the expert … Dated 09.09.2013 to EUR 3.366.30 repair costs, EUR 639.60 VAT, a lump sum for damages of EUR 25.00 and expert costs of EUR 636.06. In addition, the plaintiff also claimed compensation for loss of use in this letter, which would be quantified to the defendant after the damage had been repaired. In the period from 16.09.2013 until 21.09.In 2013, the plaintiff's vehicle was in the BMW workshop of the fa. .. .
No repair was carried out during this period. On 21.09.In 2014, the plaintiff initially took the vehicle back from the workshop. By letter dated 08.10.In 2013, the defendant declared to the plaintiff that it would bear the repair costs. On 16.102013, the defendant paid an advance of EUR 2.500.00 to the plaintiff's legal representative. In the period from 21.10.2013 until 25.10.2013, the plaintiff's vehicle was serviced in the workshop of Fa. BMW … Repaired. The vehicle was repaired on 29.10. Work contractor lien made use of. First had demanded the payment of the repair price. By letter from the lawyer dated 07.11.In 2013, the plaintiff quantified the damages incurred by him to the defendant as follows: "Repair costs acc. Invoice BMW … EUR 3.354,27
Lump-sum compensation EUR 25,00 SV-costs acc. To. Invoice EUR 636.06
Depreciation EUR – Total EUR 8.074,64
Remain to be paid EUR 4.938,58."
After the defendant subsequently paid further amounts of EUR 128.90 and EUR 1.After having paid EUR 463.68 to the plaintiff, the plaintiff quantified the damage caused to him by the accident in question in a lawyer's letter of 18.12.2013 finally to EUR 8.374.64 and demanded the defendant within a period of 10 days to pay the difference remaining after deduction of the payments made from EUR 3.646.00 to.
This letter states:
"Repair costs acc. Invoice BMW … EUR 3.354,27
Value added tax (no input tax deduction) EUR 637,31
Loss of use compensation 58 days * 59,00 EUR EUR 3.422,00
Damage lump sum EUR 25.00
SV costs acc. Invoice EUR 636,06
Depreciation EUR 300,00
Total EUR 8.374,64
Minus. Of your payment to the SV … – EUR 636,06
Minus. Advance to my office from 08.11.2013 – EUR 128.90
Less. Advance payment to my office – EUR 2.500,00
Minus. Advance to my office from 06.12.2013 – EUR 1.463,68
Remain to pay EUR 3.646,00."
Subsequently, the defendant paid a further amount of EUR 519.00 to the plaintiff. On the claimed loss of use, the defendant paid, according to its settlement letter of 06.01.2014 a total of EUR 295.00 for a loss of use of 5 days à EUR 59.00.
Loss of use compensation – plaintiff's claim at issue:
The plaintiff is of the opinion that the defendant is obligated to pay him a further compensation for use in the amount of EUR 3 in addition to the payments already made.127.00 for a further 53 days was obligated, since he had used his vehicle in the period from 02.09.2013 until the issuance by the Fa. BMW … On 29.10.2013 had not been able to use.
He claims – which is undisputed between the parties – to be dependent on his car and to use it on a daily basis. Since he was not injured in the accident in question – which is also undisputed between the parties – it would also have been possible for him to use his car under "normal circumstances" and he would have been willing and able to do so. He further claims that the delays that occurred were solely due to the slow processing of the defendants, specifically the late approval of the repair as well as also the late payment of the repair shop bill, whereas he was not responsible for these delays. It was also not possible for him to pre-finance the repair or to procure a replacement car, as he did not have the necessary financial means at the time in question and was not able to borrow the necessary money elsewhere, for example from his family. Although he had a reasonable income of EUR 2.100.00 net and thus over approx. EUR 1.000.00 per month, which remain to him. Since with a crediting however also a negative evaluation in the Schufa and with the banks was connected, an advance financing was not reasonable for him, whereas it had been easy for the deplored one to give the cost covering for the repair. This applies all the more as it was not finally determined that the defendant would settle the damage. Theoretically, it could also have turned out that the defendant denied liability because there might be intent, because the defendant was the very wrong insurance company, or because it could successfully plead some contributory negligence. Also for this reason had been given to him an advance financing of the repair costs – ggfs. Even by taking out a loan – would not have been reasonable. The plaintiff is also of the opinion that the defendant is liable to him for payment of the non-creditable part of the extrajudicial attorney's fees according to an amount in dispute of EUR 3.127,00, thus to the payment of an amount of EUR 218,71 were obligated.
Compensation for loss of use – plaintiff's application:
Order the defendant to pay to him EUR 3.127.00 as well as a further EUR 218.72, in each case plus interest at 5% points interest above the prime rate since 29.12.2013 to pay.
Loss of use compensation – defendant request:
Compensation for loss of use – defendant's contested submission:
It is of the opinion that the plaintiff is in breach of the duty owed to him under § 254 para. 2 BGB incumbent obligation to mitigate damages had violated. The accident happened on Monday 02.09.2013 occurred. However, the order to the expert … Had only been issued on 05.09.2013 was granted to him after the plaintiff on 03.09.2013 had instructed his legal representative. However, the latter had to advise the plaintiff to consult an expert on the same day. In the further delay until the preparation of the expert opinion, a causal damage mitigation breach of the plaintiff is therefore to be seen. An appraisal had already taken place on 03.09.2013 could take place, so that the appraisal already on 04.09.2013 have been able to be refunded. Repair time of ca. 2 working days, this repair should have been carried out on 04.09.Could have been commissioned in 2013. Had already been completed on Friday 06.09.Had been completed in 2013. 2 working days, this repair should therefore already have been carried out on 04.09.2013 can be commissioned. If already on Friday the 06.09.Had been completed in 2013. 09.2013 can be commissioned. If already on Friday 06.09.2013 had been completed. Could have been commissioned in 2013. If already on Friday 06.09.Had been completed in 2013.09.2013 had been completed. A loss of use of the plaintiff's vehicle had therefore only been necessary for a period of 5 days. The claimed compensation for loss of use – which is undisputed between the parties – was paid for this period. Another breach of the duty to mitigate damages by the plaintiff was also to be seen in the fact that he had made the issuance of the repair order dependent on the declaration of acceptance of costs by the defendant. Such a declaration is not a prerequisite for the issuance of a repair order. Rather, an injured party was obliged to issue a repair order without delay in order to minimize the extent of the loss. The fact that the plaintiff now claims that he was not in a position to pre-finance a repair, since this was not indicated to the defendant before the proceedings, does not show otherwise. An injured party was obliged to arrange for restoration of the original condition after receipt of an expert's report on the damage and – if he could not arrange for this from his own resources – to indicate his lack of financing possibilities to the damaging party. Since the plaintiff had omitted this notification – which is undisputed between the parties – before the proceedings, this violation of the duty to mitigate damages incumbent on the plaintiff also precludes further compensation for loss of use. The defendant also disputes the plaintiff's right to sue with regard to the asserted attorney's fees. In addition, the calculation of the attorney's fees is also incorrect. Contrary to the plaintiff's calculation, the total value of the subject matter was to be taken as a basis, but not the amount in dispute in court, since the asserted business fee "accrues uniformly". In addition, an amount of EUR 413.64 has already been paid for the extrajudicial attorney's fees – which is undisputed between the parties. The claim was submitted to the defendant on 01.04.2014 had been served. With pleadings dated 10.09.2014 and 02.10.2014, the parties have agreed to a decision in written proceedings pursuant to Section 4 of the German Civil Code (HGB). § 128 para. ZPO explained.
Compensation for loss of use – reasons for decision in the judgment of the AG Essen-Steele:
Reasons for decision:
The action is partially well founded.
The plaintiff has a claim against the defendant for payment of an amount of EUR 826.00 plus interest in the amount of 5 percentage points above the base interest rate from 02.04.2014. In all other respects the action is unfounded.
Loss of use compensation – insofar as the court granted the claim:
On the merits, the plaintiff has a claim against the defendant for payment of compensation for loss of use for a total period of 19 days.
Compensation for loss of use – insofar as the court upheld the claim, basic legal position:
1. It is recognized in case law that also the temporary loss of the possibility to use a passenger car in principle constitutes a compensable damage within the meaning of §§ 249 et seq. Of the German Civil Code. BGB represents, if the injured party has not procured a replacement car for the time of the loss of use. This loss of use is not a necessary part of the damage to the car in nature occurred. It is rather a typical, but not necessary consequential damage, which is neither fixed at all, nor its amount from the beginning. In addition to the loss of use, it requires that the injured party would have been willing and able to use the vehicle without the damaging event and exists for the necessary downtime, i.E. Basically for the necessary repair or maintenance work. Replacement time plus. The time for the damage assessment and if necessary. A reasonable period for consideration (cf. BGH, Judgement. V. 05.02.2013 – VI ZR 363/11; LG Saarbrücken, Urt. V. 14.04.2014 – 13 S 189/13; Düsseldorf Higher Regional Court, Judg. V. 25.05.2010 – 1 U 168/09).
Compensation for loss of use – dependence on the car and possibility of use:
2. According to these principles, the plaintiff is entitled to compensation for loss of use for a total period of 19 days. Since the plaintiff, according to his undisputed submission, was dependent on his vehicle and – in the absence of an injury in the accident event at issue – was also in a position to use his vehicle, the prerequisites for a claim for compensation for loss of use are fulfilled.
Loss of use compensation – the pure repair time:
A. The plaintiff is therefore initially entitled to compensation for loss of use for the time of the actual duration of the repair of his vehicle of a total of 5 days.
Aa. The plaintiff's vehicle has been. BMW … Was indisputably repaired within a period of 5 days, so that the plaintiff has a claim for payment of compensation for use for this time.
Bb. Insofar as the defendants have argued in this connection that, according to the Elblein expert opinion, the repair time was only approx. 2 days could have been expected, this argument does not correspond to the facts. According to the expert opinion of the expert … Of 09.09.2013, the repair time of approx. 04-05 working days were stated. In the end, however, this can also be irrelevant, since the repair of the plaintiff's vehicle was carried out at the Fa. BMW … Indisputably actually took 5 days and any workshop-related delays in the repair grds. To be borne by the tortfeasor (cf. Only Burmann/Heß/Jahnke/Janker, Road Traffic Law, 23. Edition 2014. 5 249 Rn. 199 m.W.N.).
Loss of use compensation – the damage assessment period:
B. In addition, in accordance with the principles set out above, the plaintiff is also entitled to compensation for the period from 02.09.2013 to 10.09.2013, thus for a period of a further 9 days a claim for payment of compensation for use is due.
Aa. It is recognized in case law that the period of loss to be compensated is not limited to the time required for repair or replacement. Time necessary for the procurement of a replacement, but in addition, the damage assessment period, i.E. The time that elapses until the expert opinion is prepared, must also be taken into account (cf. OLG Düsseldorf, judgment. V. 25.05.2010 – 1 U 168/09). It is undisputed between the parties that the plaintiff called the expert … On 05.09. Date of 09.09.2013. To the plaintiff's attorney at law on 10.09.2013 received.09.2013 had been reimbursed and that the plaintiff's attorney had been informed on 10.09.Received in 2013. The defendant is therefore also obligated to pay the plaintiff compensation for use for this time that has elapsed until the presentation of the damage appraisal.
Bb. Insofar as the defendant has claimed in this context in a sweeping manner that an appraisal of the plaintiff's vehicle had already been carried out on 03.09.2013, as well as that the corresponding expert opinion in this case was already available on 04.09.2013, the defendant, which in this respect has the burden of presentation and proof for a possible breach of the plaintiff's duty to mitigate damages, is not in a position to accept the plaintiff's submission in this respect, according to which the expert … Was still in the office of the plaintiff on 03.09.2014 had been called from the office of the plaintiff's trial counsel, but that the latter had not been able to schedule an earlier appointment than the one on 05.09.The court did not further dispute the fact that the company had been able to provide the information it perceived in 2013 and did not provide any further evidence of its assertions in this regard, despite the court's indication to this effect.
Loss of use compensation – the damage assessment period for the duration of the preparation of the expert report:
Cc. Finally, contrary to the view of the defendant, nothing else arises from the fact that the plaintiff – which is undisputed between the parties – on 03.09.2013 first commissioned his legal representative to look after his legal interests. In this respect it is recognized in the jurisdiction rather that it cannot be held against an injured party in principle, if he first instructs a lawyer with the perception of his rights and / or a damage appraisal with an extrajudicial expert, since the delays connected with it are to be accepted by the injuring party in any case in the usual temporal framework (cf. LG Saarbrücken, Urt. V. 07.06.2011 – 13 S 43/11). Since the plaintiff commissioned his legal representative on the day following the accident in question, the delay of at most one day caused by this commissioning is therefore also to be accepted by the defendant.
C. Finally, the plaintiff is also entitled to compensation for the period from 11.09.2013 until 16.09.2013, thus entitling him to compensation for loss of use for a period of a further 6 days.
Aa. Admittedly, an injured party – as the defendant has also correctly pointed out – is in principle obliged to pay for the repair or. The injured party shall, without culpable delay, seek to have the damage repaired or a replacement vehicle purchased within a reasonable period of time, so that when the damage has been reliably determined by an expert opinion, the injured party shall, without culpable delay, seek to have the damage repaired or a replacement vehicle purchased and shall place an order for repair without delay, or. Must make a replacement purchase immediately (cf. LG Stendal, Urt. V. 06.06.2013 – 22 S 108/12; OLG Saarbrücken, Urt. V. 27.02.2007 – 4 U470/06). If the injured party does not comply with this obligation, his claim for compensation for loss of use is usually only in accordance with the expected repair costs, assuming that the repair is initiated immediately, and he cannot claim full compensation for the entire period of the actual loss of use (OLG Saarbrücken, Urt. V. 27.02.2007 – 4 U470/06). In this respect, however, it must be taken into account that the aggrieved party must be given sufficient time for disposition. Not only must he know the result of the expert opinion. Rather, he must also, if necessary. Also be given a reasonable period of time for its further dispositions – repair or replacement (cf. About Burmann/Heß/Jahnke/Janker, Road Traffic Law, 23. Edition 2014, 5 249 Rn. 197; BGH, Urt. V. 05.02.2013 – VI ZR 363/11; LG Saarbrücken, Urt. V. 14.04.2014 – 13 S 189/13; Higher Regional Court of Düsseldorf, Urt. V. 25.05.2010 – 1 U 168/09).
Loss of use compensation – the disposition period, repair or replacement:
Bb. In accordance with these principles, the plaintiff in the present case can therefore also be held liable for the period between the submission of the expert's report of the expert … On 10.09.2013 and the first transfer of his vehicle to the Fa. BMW … On 16.09.2013 claim payment of compensation for use from the defendant. A culpable delay in the issuance of a repair order by the plaintiff during this period has not been shown by the defendant, who – according to the above explanations – has the burden of proof for a possible breach of the plaintiff's duty to mitigate damages, and is also not evident from the other circumstances of the case. The time between receipt of the expert opinion of the expert Elblein on 10.09.2013. First transfer of the plaintiff's vehicle to the workshop of Fa.09.2013 and first transfer of the plaintiff vehicle in the workshop of the Fa. BMW … On 16.09.2013 seems to be a reasonable period of time for the plaintiff to consider the matter, which is all the more true in the present case, since in this respect both a possible. The plaintiff's necessary consultation with his legal representative as well as the fact that the 14.09.2013 and the 15.09.2013 on a weekend are to be taken into account.
Compensation for loss of use – refusal of days exceeding this:
D. However, the plaintiff has no claim against the defendant for payment of compensation for loss of use for a period exceeding the total of 19 days described above.
Aa. As already explained above, an injured party is in principle obliged to pay for the repair or. To procure a replacement within a reasonable period of time without culpable delay. If he is not able to do so, his claim for compensation for use exists as a rule only in accordance with the expected time of an assumed immediately initiated repair and he cannot claim the full compensation for the entire time of the actual loss of use (OLG Saarbrücken, Urt. V. 27.02.2007 – 4 U 470/06). Insofar as the plaintiff, with reference to the fact that the defendant did not reject the claim until the letter of 08.10.2013, is of the opinion that it was not reasonable for him to pre-finance the repair, even on a credit basis, if it was not ultimately certain that the defendant would settle the damage, since it could theoretically turn out that the defendant would not assume liability if necessary. Because there might be intent, the defendant was the wrong insurance company or could successfully object to any contributory negligence, the court is unable to share this view. It is true that an injured party is in principle not obliged to initially repair the damage from his own funds or, going further, even to take out a loan to repair the damage, since it is in principle the responsibility of the damaging party to finance the repair of the damage to be arranged by the injured party. The injured party is therefore basically entitled to immediate compensation and is basically entitled to compensation. The plaintiff is also not obliged to repair the damage with his own funds or to take out a loan in order to avoid consequential damage. Since the injuring party must in principle also compensate for those disadvantages that result from the fact that the damage was not immediately remedied due to the lack of immediate compensation and thus increased (cf. Z.B. LG Saarbrücken, Urt. V. 14.02.2014 – 13 S 189/13 m.W.N.). However, it is also recognized in case law that the liability insurer of the other party involved in the accident is generally entitled to claim compensation from its own funds. That the claimant is entitled to a certain review period for his settlement decision and that the claimant may not rely on an early compensation payment by the insurer before the expiry of this review period. In the interest of the damaging party in the minimization of the damage and the production costs it can therefore be necessary that expenditures for the removal or reduction of the damage are already made by the damaging party, before the compensation payments to be made to the damaging party or to the claimant are made. The reasonable period of time to be granted to his liability insurer for the examination of the obligation to indemnify has expired. It is therefore recognized that it is possible for the injured party in the settlement of damages from a traffic accident with a view to the duty to mitigate damages incumbent upon him pursuant to the German Civil Code (Bürgerliches Gesetzbuch). § 254 para. 1 BGB (German Civil Code), it is in principle reasonable to initially advance the costs of the repair from one's own funds, if this is possible without any particular restrictions to the usual lifestyle, whereby the injured party, if he has an overdraft account with a financial institution, can generally be expected to pay the costs of the repair from his own funds. Could also be expected to make use of a loan that could be granted to him as a result or of an overdraft facility granted to his salary account (cf. To the foregoing as a whole LG Saarbrücken, Urt. V. 14.02.2014 – 13 S 189/13 m.W.N.). In addition, the injured party may, if necessary, claim compensation from the court within the scope of the duty to mitigate damages incumbent upon him. Even be required to bridge a longer loss of use by purchasing an interim vehicle (cf. For example BGH, Urt. V. 10.03.2009 – Vl ZR 211/08; BGH, Urt. V. 14.04.2010 – Vlll ZR 145/09). The mere fact that the defendant did not approve the repair until 08.10.2013 cannot therefore justify a claim by the plaintiff for compensation for use for a period exceeding 19 days. Rather, the plaintiff – in accordance with the above explanations – would have been obliged in principle to advance the repair costs – as far as possible – from his own funds and to issue a repair order without delay.
Bb. In the present case, nothing to the contrary results from the fact that the plaintiff has also claimed that he was not financially able to pre-finance the repair costs. The question disputed between the parties in this respect as to whether the plaintiff – in accordance with his assertion – was actually financially unable to pre-finance the repair of his vehicle is not relevant in the result. Even if one assumes – in accordance with the plaintiff's assertion – that the plaintiff was not in a position to finance the repair prior to receipt of full compensation from the defendant, the plaintiff is not entitled to payment of further compensation for use on the basis of a breach of the obligation to pay compensation to him pursuant to 5 254 para. 2 BGB to mitigate the damage.
(1) In the case law it is grds. Although it is recognized that the injured party is then entitled to compensation for use over the usual replacement period or. Repair time, if the latter is not in a position to carry out the repair or repair work. To pre-finance the EnNerb of a replacement vehicle without receiving the compensation from the injuring party (LG Stendal, Urt. V. 06.06.2013 – 22 S 108/12 m.W.N.). However, this does not apply without restriction. The aggrieved party is entitled to compensation within the scope of the rights conferred on him under 5 254 para. 2 BGB (German Civil Code), the tortfeasor is obliged to compensate the injured party in such cases in which he himself is required to pre-finance the repair or replacement of the vehicle. Of the substitute verb is not able to point out the danger of an imminent higher damage in a timely and concrete manner .(cf. E.G. Burmann/Heß/Jahnke/Janker, Road Traffic Law, 23. Edition 2014, ä 249 Rn. 201; OLG Stuttgart, order dated 25.01.2010 – 7 U 217/09; OLG Karlsruhe, Urt. V. 08.08.2011 – 1 U 54/11; OLG Brandenburg, Urt. V. 30.08.2007 – 12 U 60/07; OLG Düsseldorf, Urt. V. 17.12.2007 – 1 U 110/07). This duty of the injured party to inform and notify is intended to give the damaging party the opportunity to take countermeasures against the threat of further damage, for example by paying an advance payment (OLG Brandenburg, Urt. V. 30.08.2007 – 12U60/07; OLG Karlsruhe, Urt. V. 08.08.2011 -1 U54/11). If the injured party does not comply with this duty to notify and report and fails to notify the tortfeasor accordingly, he violates his duty to mitigate damages pursuant to. 5 254 para. 2 BGB (OLG Düsseldorf, Urt. V. 17.12.2007 -1 U 110/07).
(2) According to these principles, the plaintiff in the present case has violated the compensation due to him pursuant to. § 254 para. 2 BGB, the plaintiff has violated his duty to mitigate damages. According to the undisputed submission of the defendant, the plaintiff did not inform the defendant at any time before the proceedings that it was not possible for the plaintiff to place a repair order due to its financial circumstances. Nor can such an indication be inferred from the plaintiff's submissions and the pre-trial letters of his legal representative submitted by the plaintiff for the file.
(3) This breach by the plaintiff of the duty to mitigate damages was also the cause of the total loss of use of 58 days that occurred. In view of the circumstances of the present case, it must be assumed that the defendant would have paid the plaintiff a corresponding advance payment if the plaintiff had informed it that it was not in a position to finance a repair in advance. This is supported first of all by the fact that the defendant already on 16.10.2013 – and thus before the completion of the repair of the plaintiff's vehicle actually carried out in the period from 21.10.2013 until 25.10.2013 an advance of EUR 2.500.00 paid to the plaintiff's trial counsel. Also the fact that the defendant, according to the settlement letters on file, expressly reserved the right to offset the payments made or to reclaim them if there was no claim or only a partial claim, indicates in the present case that the defendant would have paid a further advance in the knowledge of the plaintiff's inability to advance the repair costs. This applies all the more, since the deplored one submitted also ' in the context of the law case uncontradicted to have paid in case of an appropriate reference of the plaintiff a further advance. Finally, the presumable self-interest of the defendant in avoiding further damage as well as general life experience (cf. Z.B. KG, Urt. V. 09.04.2009 – 12 U 23/08) that the defendant would have paid a corresponding advance payment if the plaintiff had pointed out that it was unable to commission a repair in a timely manner due to a lack of financial resources.
(4) Since the plaintiff in the present case is thus guilty of causal contributory negligence for the overall failure of his vehicle in the period from 02.09.2013 until 29.10.2013, the extent of the defendant's obligation to pay compensation depends on an assessment and weighing of all the circumstances of the case at hand, with the weighing being based primarily on the extent of the mutual contributions to causation, i.E. On the degree of probability with which the mutual contributions to causation were suitable for bringing about the damaging result – in this case the downtime of a total of 58 days (cf. Palandt/Grüneberg, 73. Edition 2014, § 254 Rn. 57 ff.). In the context of this consideration, it first had to be taken into account that the plaintiff's vehicle was in the period from 16.09.2013 to 21.09.2013 undisputedly in the workshop of Fa. BMW … And the repair was not carried out at that time only because the cost assumption explanation of the deplored one was not yet present. In addition, it had to be taken into account that the circumstance of not being financially able to pre-finance the repair of his vehicle was for the plaintiff, at least upon receipt of the expert opinion of the expert … On 10.09.2013 was evident. Since – in accordance with the above explanations – it can furthermore be assumed that the defendant would have immediately paid a corresponding advance to the plaintiff in case of a corresponding indication of the plaintiff's financial inability to prefinance a repair, it seems probable in the present case that the plaintiff's vehicle, in case of a corresponding indication of the plaintiff's financial inability to prefinance a repair, would have been repaired immediately after receipt of the expert's report of the expert … On 10.09.2013 when the plaintiff's vehicle was first brought to the company's workshop. BMW … On 16.09.2013 could have been fixed. Taking into account the indisputable fact that the company. BMW … Required repair time of a total of 5 days, it therefore seems likely in the present case that a repair of the plaintiff's vehicle in this case at least until 20.09.2013 could have taken place, so that a claim by the plaintiff for payment of compensation for loss of use extending beyond this date on the basis of the violation of the provisions of this gem. § 254 Abs. BGB incumbent reference-. Obligation to report eliminated. BGB obligatory note-. Obligation to notify eliminated.
II. The plaintiff is entitled to payment from the defendant in the amount of EUR 826.00. In accordance with the above, the plaintiff is entitled to the defendant on the merits of a claim for compensation for loss of use for a total period of 19 days. The amount of compensation for loss of use of EUR 59.00 per day claimed by the plaintiff is undisputed between the parties. For a period of 19 days, therefore, a claim for compensation for use in the amount of EUR 1 is calculated.121,00. Since it is undisputed that the defendant has already paid an amount of EUR 295.00 for a period of 5 days on the total compensation for loss of use claimed by the plaintiff, the plaintiff's remaining claim for compensation for loss of use amounts to a further amount of EUR 826.00.
III. The interest claim follows from §§ 291, 288 para. 1, 187 para. 1 BGB. ..
V. The decision on costs follows from sec. 92 para.