Information on loss of use of the car after an accident
After an accident is available to the injured party often entitled to a rental car or compensation for loss of use
If a vehicle is damaged after a traffic accident, it is no longer available for use by the owner.
For the time of the repair or in the case of a total loss for the period of a replacement acquisition, the owner as an injured party can choose between the use of a rental car or alternatively a replacement car Claiming loss of use.
The problem with claiming loss of use after an accident is that liability insurers, by their very nature, regularly object to damage items such as loss of use, and it depends on many details in the individual case.
The case law is not very uniform and almost unmanageable.
FAQ: Loss of use compensation
Loss of use occurs when a car cannot be used temporarily after a traffic accident. The injured party may be entitled to damages in this case.
Anyone who is dependent on their vehicle but cannot use it after an accident and is therefore at a disadvantage can claim this compensation after an accident.
After an accident, this is usually only allowed for a period of 14 days.
Please feel free to use our free sample. Click here to view and download it.
Special information on the subject of loss of use:
Loss of use always occurs when, after a traffic accident, a vehicle can no longer be used for a certain period of time. If the injured party forgoes a rental car, he or she can claim compensation for loss of use. But what is the situation with a motor home? Our guidebook will enlighten you. » Read more.
Whether the injured party is entitled to compensation for loss of use in the case of fictitious settlement is a question that repeatedly occupies the courts. We have summarized the case law and explain under which conditions a loss of use is due. We also discuss whether compensation for loss of use can be claimed if the repair is carried out by the victim himself or if the vehicle is a total loss. » Read more.
What is a loss of use?
Loss of use occurs when the vehicle can no longer be used after an accident
If the injured party renounces a rental car, he can claim loss of use from the tortfeasor and his liability insurance company. Loss of use means that the injured party has to pay for the vehicle because the Inability to use his vehicle a compensation in money can claim. The reason for this is that the vehicle represents a monetary asset (commercialization), the loss of which would result in a loss of value Compensable damage arises. He does not need to apply for the compensation for loss of use, but can claim it as a legal right.
How to calculate loss of use?
Since 1966, the basis for calculating the loss of use has been the Table from Sander/Danner/Kuppersbusch/Seifert/Kuhn (also known as EurotaxSchwacke). According to this table of compensation for loss of use, the amount of compensation for loss of use per day is determined for each type of car and for many motorcycles.
The BGH (VersR 05,284) emphasizes the importance of the tables for practice and recommends their application to the judge of the facts. Its application corresponds to common court practice.
You contains in 11 groups (A to L) 38.000 vehicle models. Depending on the model and age Daily rates between 23 € in group A and 175 € in group L. The following table provides an overview of the individual groups:
The authors of the table recommend that cars older than 5 years old are to be a group and cars, the 10 years and older to two groups to downgrade.
Consideration of vehicle age
If the damaged car is of an older model year, case law regularly makes a deduction, with the from a vehicle age of 5 or. 10 years is downgraded by one class in each case. If the vehicle is more than 10 years old, a deduction down to the real or reasonable preliminary costs is also made in some cases (BGH NJW 1984, 484).
Pre-use costs are the costs that the owner has to spend to use the vehicle (insurance premium, car tax, garage rental).
Criticism of this criticizes the fact that even older vehicles are equipped with high quality and long life, and a deduction does not seem justified. Consequently, this is the reason why the experts consider vehicles to have a "maintained above average" or with "a very good state of preservation" designate. In the judgement of the BGH it concerned a substantially damaged KFZ (a rust bucket), so that a deduction appeared quite justified.
Example for the calculation of the loss of use
- Damaged vehicle: AudiA1 1.2 TFSI Attraction, four years old,
- Loss of use compensation group for vehicles up to 5 years old: Group C,
- Value in use/day in euros based on vehicle age up to 5 years: €35,
- recommended compensation for loss of use for vehicles older than 5 years: Group B = € 29,
- recommended compensation for loss of use for vehicles older than 10 years: Group A = 23 €.
- Preliminary costs 9,39 €.
If the Loss of use duration 10 days, results in a compensation for loss of use of the passenger car of 10 days times 35 € use value/day of 350 €.
Is the Vehicle 7 years old (then group B), this results in 10 x 29 € = 290 €, is the Car 12 years old (then group A), this results in 10 x 23 € = 230 € Compensation for loss of car. Was the vehicle completely used up, comes the Reduction to the cost of ownership into consideration.
Which is better: rental car or compensation for loss of use?
Compensation for loss of use is usually better than having to use a rental vehicle
In case of doubt, if the question of guilt is not clearly clarified, it is recommended that instead of a rental car the compensation for loss of use to be applied for. If the court finds that both parties involved in the accident bear a share of the blame for the accident, the party that used a rental car must pay a pay part of the rental car costs yourself. The compensation for loss of use, on the other hand, is only reduced by the debt portion. In this respect, the injured party only receives less money, but does not have to pay anything extra himself.
Loss of use only in case of repair
Compensation for loss of use of a passenger car requires proof of concrete impairment. Unlike in the case of property damage, a purely fictitious settlement not possible. The injured party has to prove that he would have actually used his vehicle (will to use) and would have been able to use it (possibility to use). This he can usually then, if he has the vehicle repaired.
How does the will to use show?
insurers are happy to dispute the Willingness to use, in cases where the injured party does not have his vehicle repaired or does not have it repaired promptly after the accident and also has not purchased a replacement vehicle. From this Mobility waiver concluded. However, case law presumes that vehicles registered for road use are to be used permanently and thus assumes the will to use (OLG Dusseldorf 1-I U 192/08). Also here it depends crucially on the circumstances in the individual case. Ideally the Factual presentation with the usage habits document from the time before the accident. However, the injured party does not need to prove to what extent and for what purpose he would have used his damaged vehicle if it had not been damaged. It is sufficient to indicate that he could have used the vehicle without the accident and would have actually used it.
What about the possibility of use?
The damaged party must therefore provide proof of repair. If he leaves the vehicle unrepaired, he receives his fictitious property damage compensated, but at the same time shows that he lacks the will to use and thus the possibility of use. Will to use and possibility of use are equally missing, if the injured party, as a result of the accident in the hospital lies, bedridden ill is, his driver’s license has been revoked or he is on a Vacation trip is located (BGH VA 2008, 145).
Here, too, it depends on the correct factual presentation. The use possibility was affirmed despite sternum contusion and several weeks of inability to work (OLG Duesseldorf 1U 120/03), it was denied, with six-week inability to work after accident shock with post-traumatic stress disorder (OLG Duesseldorf 1 U 141/01) or with after own indication two-week bed confinement after HWS distorsion (KG DAR 2006, 151).
At the same time, however, he is entitled to compensation for loss of use again if he proves, that his vehicle is regularly shared by a relative or a third party (OLG Dusseldorf I-1 U 52/07).
Special scenarios for loss of use
What is, if a second car is available?
Insurers like to charge the "Second car defense". This means that the injured party owns a second car or could have used such a car. The required "tangibility" of the use is missing if the injured party has lost the possibility to use the vehicle due to the accident can be compensated by another vehicle (BGH NJW 1976, 286). The jurisdiction grants also in these cases a loss of use compensation, if the Second vehicle used by a relative permanently and it is not available to the injured party. The use of the second vehicle must also have been reasonable for him. For example, there is no equivalence if the vehicle involved in the accident is z.B. is a large limousine, but the second car is only a small Smart car.
Compensation for loss of use: How is it with free or low-cost replacement car?
If the injured party for the period of repair a replacement vehicle without cost calculation or against a friendship price, for example from the workshop or a friend, is made available, a Compensation for loss of use rejected (BGH VA 2008, 38).
Loss of use for a motorcycle
In the case of loss of use of a motorcycle, there is usually no entitlement to compensation for loss of use
The compensation for loss of use is limited to Vehicles on which the injured party typically relies on an ongoing basis. If a vehicle is not constantly needed, the will to use is missing. Insurers therefore like to object to the pecuniary loss with Enthusiast vehicles, classic cars, quads, but also motorcycles.
Loss of use for a motorcycle is recognized if the injured party has it constantly instead of a car used, e.g. driving it to work. Loss of use is rejected if the injured party owns a passenger car in addition to the motorcycle or uses the motorcycle exclusively for leisure (OLG Frankfurt 1 U 300/08). A motorcycle in group A is compensated with € 10, in group C with € 19.
For a Quad was the compensation as purely for recreational purposes rejected (LG Giessen SP 2007, 293). The same applies to classic cars (OLG Dusseldorf VA 2011, 77).
Even for a motor home there is rarely compensation (BGH VA 2008, 145). The vehicle had been a custom-built vehicle which, according to the injured party’s own submission, was not used for everyday transportation purposes. For this he had a passenger car at his disposal. The will to use may exceptionally exist if the accident at a time occurred, on which the motor home should have been used for vacation purposes. There is no special compensation table for loss of use.
Loss of use for motor vehicle in case of commercial use
The Compensation for loss of motor vehicle for commercial use is disputed. Since such vehicles are intended to generate profits, the injured party must usually pay his Calculate the loss in concrete terms and explain his loss of profit. The application of a lump-sum compensation for loss of use is not possible. At commercial/private mixed use is to be quota-based. A clear line cannot be recognized in the jurisdiction (vgle. Overview BGH VA2008, 38).
How is the repair proof?
Proof of repair is provided by ..
- Submission of photographs, that the repaired vehicle z.B. with a legible newspaper on it and a recognizable date of publication,
- Presentation of the workshop invoice as well as possible testimony of a workshop employee,
- Inspection of the vehicle by an agent of the insurer,
- Submission of an expert opinion,
- third person as witness, as far as he is able to give information about the extent of the repair and the exact time of the loss of use.
Which means the injured party is obliged to mitigate damages?
The injured party is responsible for Duty to mitigate damages. He must ensure that the repair is carried out without delay, arrange the repair date with the repair shop and insist on the repair being carried out by the repair shop quick execution of the repair urge as well as if necessary an emergency repair or an interim vehicle to take up. He can therefore not wait as long as he likes with the repair and believe that he can cover his living expenses with the compensation for loss of use.
What happens if the injured party repairs his vehicle himself??
It is disputed to what extent in case of a self-repair a claim for compensation for loss of use exists. Here, too, it is usually required that the injured party proves that he has a concrete loss of use (BGH VA 2008, 145) or in which period and by whom the vehicle was repaired and that he has suffered was willing to use the vehicle during this time (AG Wiesbaden r+s 1992,92). In practice, the evidence Strict requirements provided. The extent to which this is justified seems questionable, since the injured party must not be placed in a worse position than the party who has the vehicle repaired in the workshop.
Loss of use: How long is the compensation for loss of use granted??
Compensation for loss of use usually has a duration of 14 days
In the case of a vehicle that is no longer roadworthy as a result of an accident, the Duration of the compensation for loss of use from the time of the accident. Compensation for loss of use is then regularly paid for the Period of 14 days granted. After that there is no more compensation. The injured party is therefore obliged to have his vehicle repaired as quickly as possible. In part, however, a claim is granted to him not only for the pure duration of the repair, but also for the time of the expert opinion and for an reasonable period for consideration for the decision whether he chooses repair or replacement (OLG Munich DAR 2009, 703).
The injured party must loss of use its prove the duration of the damage, that his vehicle was not usable. It is not sufficient to refer to the repair time specified in the expert opinion. In return, the tortfeasor can show that this period would have been shorter if the necessary care had been taken. The injured party should therefore prepare and accompany the repair conscientiously.
Loss of use in the event of an economic total loss
If the injured party does not have his vehicle repaired in the event of an economic total loss, he regularly creates an Replacement vehicle at. Since he cannot use his accident vehicle in the period up to the availability of the new vehicle, must be granted to him naturally likewise with total loss loss loss of use. So far, this period has also been regularly applied in this case to 14 days dimensioned. In order not to "rush" the decision to buy a new car, the period seems unreasonably short.
The OLG Celle therefore granted the injured party a significantly longer loss of use than he needed for the mere replacement for new car (5 U 159/13). In particular, the injured party is allowed to wait, until the damage appraisal is available, to then decide. Only after this lead time the period for replacement begins. In the case 26 days were awarded! The period for which compensation for loss of use was granted was thus the sum of..
- the period of the damage assessment and the availability of the expert’s report,
- a reasonable period of consideration of 1 to 3 days
- and the replacement time for a replacement vehicle as estimated by the expert [PLZ].
Loss-of-use compensation sample letter (non-binding, depends on individual case)
It should be noted that, if possible, the compensation for loss of use should be part of the overall damage settlement! It is essential to provide information on the intention and possibility of use in each individual case.
[your last name, first name]
[street, house number]
[zip code, city]
[Address of the other party or. of his insurance]
[street, house number]
[zip code, city]
Subject: Claim for compensation for loss of use
Dear Ladies and Gentlemen,
Following the car accident with your policyholder [insert name of other party] on [insert date], I am entitled to compensation for loss of use of the car for my damaged vehicle, Audi A1 1.2 TFSI Attraction, four years old, according to the EuroSchwacke table, Group C, for a loss of use period of 10 days in the amount of € 35 value in use/day, i.e. € 350 in total.
I use the car every day to reach my workplace. Since the vehicle was not available to me due to repairs, I was dependent on using public transportation.
Please transfer the amount due to the following account within [insert deadline]:
IBAN: [insert IBAN]
BIC: [insert BIC]
Account holder: [insert your name]
With kind regards
Compensation for loss of use download
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