– When claims settlements by insurance brokers and car insurers are flawed -.
“There is also no rule according to which a certain speeding is insignificant,” formulated the OLG Frankfurt/Main in a recent ruling of 15.04.2014 (Case No. 15 U 213/13). The “too fast plaintiff” received a quarter of contributory negligence in the second instance.
Regulatory errors by insurance brokers
There is an opinion – also among insurance brokers – that a minor “usual” speeding (here 7 km at 30 km) should at most be punished with an administrative fine, but should be irrelevant for the question of liability in motor vehicle accidents. There are also rulings that suggest that it is not material in an accident for failure to yield the right of way that the party yielding the right of way was speeding slightly. This is also the opinion of many brokers and also of claims adjusters at insurers. This was also the case in a case initially decided by the Wiesbaden Regional Court (Landgericht, LG) (judgment of 22.10.2013, Case No. 8 O 129/11), where, according to the insurer, the party entitled to the right of way who was 7 km too fast should initially not be subject to any quota.
Frankfurt Higher Regional Court corrects Wiesbaden Regional Court
The decision of the Wiesbaden Regional Court was made despite the fact that the expert determined that the damage would only have been half as high had the vehicle been driven 30 km as prescribed. The OLG found that the 7 km were relevant because they increased the “operating risk” relevant for the quotation of the damage.
Such incorrect claims settlement by insurers seems to be common practice so far, i.e. not even taking into account the operational risk and contributory negligence in the case of minor speeding from the outset. This puts insurance brokers and claims adjusters in a liability trap because at least one party to the accident receives too little compensation from the other side.
The Higher Regional Court of Frankfurt am Main clarifies: “Without success, the defendants plead that the speeding offence was so minor that it was of no consequence at all and fell behind the plaintiff’s share of the causation. As a general rule, it is the responsibility of every road user to ensure that the speed limit is observed. This can be done by looking at the speedometer. If the speed is exceeded, he is constantly required to reduce it to the permissible level (BGH, loc.cit., NJW 2005, 1940). Nor is there any rule that a particular speeding violation is immaterial.”
Too little compensation due to faulty claims settlement
It is therefore entirely correct for speeding to be taken into account as an increase in the operating risk in the quotation of the damage, insofar as it has had an effect on the amount of the damage. Insurers who disregard such principles are acting in breach of duty.
Increased litigation is to be accepted because it serves justice. Insurers can avoid this by adhering to the law themselves and providing comprehensible reasons for their decision. But should they simply ignore such legal principles, they should not be surprised, as here, if they face a lawsuit and they are not lectured until they get to court.
As a broker who is also involved in claims handling, it would be liable to dismiss minor speeding violations as trivial. In retrospect, the mindset of many a broker is reminiscent of the motto: “Maximize my own liability by following my sense of justice at the expense of my client.”
No legal tolerance limit for 10% or 10 km/h speeding
The argumentation of the OLG Frankfurt/Main also leads to the fact that in the future almost every traffic accident would have to be put to the test in terms of speed. Because a speeding offence of 20 percent (60 instead of 50 kilometres per hour) is probably (and unfortunately) more the standard than the exception. A found food for many a motor vehicle liability claims adjuster and consequently an increased volume of lawsuits.
by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm
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About the author
Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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