The case:
The plaintiff, a house owner, had taken out a fire and natural hazards insurance policy with the defendant, an insurance company. After a force 10 storm just before Christmas in 2011, moisture penetrated the policyholder's staircase and bedroom. The property owner identified the cause as roof tiles lifted by the storm, which subsequently allowed rain to penetrate.
The insurance company claims that the damage was due to rainwater entering through a leaky roof, and that the roof had already had significant defects, and is therefore not liable.
The expert consulted has determined that the type of attachment of the roof tiles is not to be criticized, but that overall the roof structure shows a deficit in rain safety. Rain had penetrated through the gaps between the roof covering plates and the nail heads of the fastening nails. He could not clearly confirm an uplift of the roof tiles by the storm.
The district court ruled that the owner was covered by the insurance. The defendant had to prove the circumstances that led to their exemption from liability. It was unsuccessful in doing so.
Decision:
The OLG set aside the judgment because the defendant insurance company could claim exemption from liability to pay. The district court had indeed come to the correct conclusion that the moisture damage was caused directly by the storm as an insured risk. However, the district court misjudged the burden of proof. The defendant proved that water had entered through building openings. However, insurance coverage only exists if the openings were caused by the storm, which the owner must prove. He was unable to prove that the loosening of the fastening was caused by the storm, since according to the expert opinion, it could not be ruled out that the protruding nails had other causes.
Practical tip:
As part of a legal dispute, the policyholder must regularly prove that an insured event has occurred in accordance with the conditions. Insurance coverage only exists for the events specified in the terms and conditions of insurance. Even if the policyholder proves this, only the direct impact of the storm on the insured property is covered. This sometimes leads to difficult-to-understand cases. For example, if rainwater collects in a light shaft because the rainwater is whipped into the light shaft by the storm, the water accumulates in the light shaft and breaks the windowpane. In this case, there is no direct impact of the storm on the insured property. but the accumulation of water and the shattering of the window due to the excess pressure caused the damage, the whipping in of the storm being an intermediate cause (Cologne District Court, judgment of October 10, 1994 - 24 O 56/94 - ). On the other hand, the detachment of parts of the exterior plaster is storm-related, even if cavities have favored the detachment (OLG Saarbrücken, judgment of April 12, 2006 - 5 U 496/05 - ).
Reference
OLG Karlsruhe, judgment of September 30, 2014, - 12 U 63/14 -.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.