The Federal Court of Justice (BGH, ruling of 07.07.2020, ref. VI ZR 308/19) decided that an employed claims adjuster is (co-)liable in tort if he uses his alleged expertise for an injured party by exerting influence on the performance of third parties; § 823 I BGB.
In the case in question, the injured party had suffered a cylinder head damage covered by liability insurance, which led to an economic total loss due to the only apparently expert recommendation of an employee (AN) of the insurer (VR) to save “unnecessary” measures (not an allegedly only costly replacement of an additional drive belt).
Also competent claim handlers employed by brokers are personally liable
Anyone who claims to possess the relevant expertise – wherever he may be from – is liable in tort if he acts negligently. Therefore, no (possibly conditional) intent is required – the Contractor can therefore have acted in good faith to benefit the person ultimately injured.
Even simple employees, without real expert knowledge, are affected
The mass of the lower level employees (AN) are affected, not only the few real “experts”. For example, those who, with pretended expertise, explain to the physician/dentist, in accordance with a “cookbook”, which measures are not necessary and why, and why they would not be paid by the BoD. In other words, to influence its treatment with alleged expertise and emphasis, in the expectation that this will then be implemented.
Full external liability alongside the BoD – questionable recourse against the employer
As a matter of principle, Contractors are fully liable for their work – only they have a claim graded from slight negligence to intent, from full liability to complete release by their employer (AG), which of course comes to nothing in the event of insolvency.
The hint with the fence post by the BGH
Many claims handlers (SSB) make “extra-mandatory” efforts to influence the performance of the UN, the injured party or a workshop, medical practitioner or lawyer commissioned by the UN. This is not only through pure denial of the insurer’s obligation to pay benefits, but also by asserting alleged expertise of a medical, technical or legal nature – for example under the term “case management”.
However, if the person concerned or his workshop, medical practitioner, lawyer etc. follows this (also because of the otherwise expected non-reporting by the board of directors) even as here at the BGH against his better knowledge – a damage can arise for which the employee can then be personally (jointly) liable.
Extra-mandatory influence for career advancement?
Here (cf. VW diesel affair) there are certainly ideas of the SSB about what the AG expects from them. If necessary also own initiative without instructions of the AG, even against instructions of the AG, in order to have (career-promoting) success. This can lead to a targeted presentation of these supporting judgments, such as a random judgment (possibly not even relevant or outdated), which is opposed by a majority of others who have been left out. Or perhaps an isolated or outdated “specialist” publication. This may even be done by the SB on the explicit instruction of his client, possibly even against his better knowledge, which may also make him liable externally. If he is sued (he is personally passive-legitimated), he often cannot and probably will not be able to refer to instructions – externally this would be useless anyway.
In particular, “customer-friendly” behaviour in the form of not merely contesting the obligation to perform, but rather as an attempt to convince the UN, the injured party or third parties – by presenting expertise – of this.
Without insurance, the employees’ private assets are at risk
Contractors are not insured – if only because of a lack of offers and problem awareness – as a rule because of their liability, except in the public sector. If there is a liability policy with the employer at all, and the contractor would also be insured under it, the contractor will rub his eyes when the liability VR regresses the payment of damages to the employee – for example, in the case of contractor co-insurance in the broker VSH or regulator VSH.
And if the BoD believes that the conduct of the SSB is in complete contradiction to all BoD principles, it will, if necessary, refuse to assume the damages altogether.
Of course, as the injured party of such service processing, one can sue the AG jointly and severally, in addition to the AN, and in addition to the workshop, medical practitioner, lawyer commissioned by the injured party.
Non-employees are liable under contract with protective effect in favour of third parties and expert liability
As the Federal Court of Justice (loc. cit.) clarifies, the employment contract does not additionally provide even more stringent protection for the injured party. This would, however, be possible in the case of self-employment as a claims adjuster. And whoever is actually an expert (e.g. finance professor or StB) negligently falls under expert liability as a guarantor for his own (also advertising) statements (BGH, ruling 17.11.2011, ref. III ZR 103/10).
by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm
by courtesy of
www.experten.de (published in ExpertenReport 11/2020, page 4-5)
www.experten.de (published on 10.11.2020 under the heading: Corona-Hilfen: With state aid in insolvency and poverty in old age)
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About the author
PhD, MBA, MM
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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