Independent experts and legal advisors to safeguard the enforcement of the law

– What insurance customers should pay particular attention to in the event of a claim? –


The European Court of Human Rights ruled (judgment of 02.02.2016, ref. 7186/09) that a technically incorrect calculation method discriminatorily understates the disability pension. Due to an incorrect approach, the degree of disability had been reduced from 50% to 27% – and thus the pension had ceased to exist, because 50% disability had to be present for the pension claim.


Convention on Human Rights also protects German insurance customers

The Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) has de facto supra-legal status because German law is to be interpreted “in a manner friendly to international law” (BVerfG, 26.03.1987, Ref. 2 BvR 589/79; 2 BvR 750/81; 2 BvR 284/85). However, the ECHR is not superior to the Basic Law (BVerfG, decision of 14.10.2004, file no. 2 BvR 1481/04).

Both individual complaints by citizens and state complaints against other states are possible. Petitions and complaints were already possible in Rome: Julius Caesar received scrolls with petitions every day when he entered the Senate. On March 15, 44 BC, the senators hid their daggers in them.


Questionable independence of surveyors and loss adjusters?

As already judged for a long time by courts (e.g. LG Cologne, decision of 15.01.2004, Az. 23 T 1/04) there are specialized institutes and experts, who are assigned predominantly by insurance companies, which results in an economic dependence, and justifies the partiality. The Regional Court of Cologne commented “Therefore, the court does not commission the expert with expert opinions at all; in cases of pre-trial expert opinions of the expert, the court also does not use them as documents, but always obtains a new expert opinion”.


A general distrust of surveyors commissioned by the insurer (VR) is also appropriate because they like to encourage the removal of fire and water damage, so that the policyholder (VN) ends up without any evidence – the judge then reproaches him with so-called obstruction of evidence. It is not uncommon for the insurance broker to leave the claims assessment process to the VR instead of pointing out the lack of independence of VR assessors, which has even been established by the courts.


Many a policyholder rubs his eyes later when he notices that forbidden legal advice is part of his broker’s business model (cf. Federal Court of Justice, BGH ruling of 14.01.2016, ref. I ZR 107/14), in that the broker also supports the premium collection or claims settlement for the VR, for example for an additional fee.


Damage cases often require judicial preservation of evidence with independent experts

Not only damage caused by fire and water, but also incapacity to work, occupational disability, as well as claims under accident, health, liability and other property insurance policies often require a request to the competent court to appoint a neutral independent expert as part of a procedure for the preservation of evidence. This is the only way to ensure that evidence is not lost due to the passage of time and changes, or even “thwarting of evidence”, after a fruitless deadline for an acknowledgement by the VR. Retroactive determinations are difficult or impossible in the case of illnesses. In the case of material damage, after repair it is at best possible to guess what it may have looked like before.


Pre-financing of claims items by dependent law firms

A lawyer’s court (BayAGH, judgment of 17.02.2014, file no. III – 4 – 7/13) criticised the pre-financing of damage items in motor vehicle accidents because this would “buy” and “sell” mandates, Section 49 b BRAO. The car repair shop recommends a certain law firm to the owner of an accident vehicle, and thus has its own advantage that the law firm pre-finances the repair costs as well as that the car owner is thus deprived of the possibility of a later set-off in the case of warranty. Thus, the lawyer sides with the car repair shop.

It is agreed with the car owner that the law firm bears the dispute and default risk of the repair shop – similar to a commercial litigation financier, whose business model of a (partial) success fee – in the case of an independent lawyer – will rarely be legally presentable. This is probably still the practice of some car dealerships.


Asset advantages through independent expert support

Already in the run-up to disputes, not only with insurers and credit institutions, expert assistance has often paid off – be it to determine whether the dispute is economically worthwhile; or be it that the financial house belittles the customer’s legal claim in order to settle the matter cheaply. Often, this is the only way to present a claim in a comprehensible manner and with the correct justification.


If it comes to the selection of an expert by the court, it is clever to have one’s own party expert at one’s side in order to critically question the expert opinion for the court. It has often turned out that, due to the lack of timely commissioning of an own expert prior to the filing of a lawsuit, the actual complaint was not even rudimentarily covered, starting with the statement of claim via the court’s decision on the taking of evidence up to the subsequent expert opinion of the court expert.


by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm

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About the author

Dr. Johannes Fiala Dr. Johannes Fiala

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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