After a traffic accident, the question often arises as to which costs the at-fault driver’s liability insurance must cover. In the past, disputes frequently arose when repair shops or experts issued invoices that insurers considered too high, or when individual items on the invoice were contested.
In recent years, the Federal Court of Justice (BGH) has comprehensively clarified this issue through several landmark decisions and significantly strengthened the rights of accident victims. In particular, the decisions regarding the so-called “repair shop risk” and “expert risk” now provide significantly greater legal certainty.
The Right to Compensation Following a Traffic Accident
Anyone who is involved in a traffic accident through no fault of their own is generally entitled to be restored to the position they would have been in had the damaging event never occurred. This follows from Section 249 of the German Civil Code (BGB).
The injured party is therefore entitled, in particular,
- have their vehicle repaired.
- hire an independent expert,
- consult a Lawyer; and
- demand reimbursement of the necessary costs.
In practice, however, it was common for liability insurers to retroactively reduce individual items on invoices, arguing that certain work had not been necessary or that the fees charged were excessive.
In several landmark rulings, the Federal Court of Justice has significantly restricted this practice of reducing payments.
The Repair Shop Risk
The term “repair shop risk” refers to the risk that a repair shop will charge costs that later turn out to be excessive or even objectively unnecessary.
Typical examples include excessive hourly rates, unnecessary repair steps, incorrect calculations, or inflated prices for replacement parts.
For a long time, liability insurers frequently held the view that such costs must be borne by the injured party.
The Federal Court of Justice has clearly rejected this view.
The Case Law of the Federal Court of Justice
According to the Federal Court of Justice’s now well-established case law, the party responsible for the damage generally bears the repair shop risk.
The injured party may generally rely on a specialized repair shop they have commissioned to perform the repair properly and bill appropriately.
Even if it later turns out that individual items on the invoice were overpriced or that certain work was not necessary at all, the damages remain compensable in principle.
This applies in any case where the injured party cannot be blamed for any fault of their own.
In particular, the injured party is not obligated to conduct a technical review of the repair shop’s invoice, recalculate individual work items, question repair methods, or continuously monitor the repair shop.
Only if it was obviously apparent to a reasonable layperson that the repair shop was billing incorrectly or abusively may a different rule apply.
The Expert’s Risk
The same issues have also arisen for years regarding expert witness fees.
Following a traffic accident, the injured party is generally entitled to hire an independent automotive expert to determine the extent of the damage and the repair costs.
However, many liability insurers regularly reduced expert fees, arguing that individual incidental costs or the total fee were excessive.
The Federal Court of Justice has now taken a clear position on this matter as well.
Application of the Principles to Expert Witness Fees
The Federal Court of Justice has expressly ruled that the principles of the repair shop risk also apply to expert witness fees.
This so-called “expert risk” is also generally borne by the party responsible for the damage.
The injured party may rely on the expert they have retained to charge a reasonable fee. They are generally not obligated to compare prices, review fee schedules, question individual incidental costs, or verify the expert’s calculation. Even if the fee later proves to be excessive, the injured party’s claim for reimbursement generally remains valid.
Here, too, the only exception applies if the injured party could have recognized an obvious overcharge.
Conclusion
The case law of the Federal Court of Justice regarding repair shop risk and expert risk has significantly strengthened the rights of accident victims.
Anyone who engages a specialized repair shop or an independent expert after a traffic accident may, as a general rule, rely on their expertise. Erroneous, inflated, or even partially unjustified invoice items are generally not borne by the injured party but fall within the scope of responsibility of the party at fault or their liability insurance.
For accident victims, this means a significant simplification in enforcing their claims for damages and greater legal certainty in the settlement of accident claims.
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.