As a rule, a policyholder only has a claim against his liability insurance for the provision of insurance cover in accordance with the conditions and not for payment of the liability claim.
It is established that the defendant is obliged to grant the plaintiff legal protection in accordance with the conditions of the business liability insurance contract concluded between the parties for the extrajudicial and judicial recovery of the payment amounts withheld by way of offsetting against claims for damages from a damage event of May 20, 2009 of company I, A-straße C in the amount of € 13,428.15 plus interest in the amount of 5 percentage points above the base interest rate.
The defendant is ordered to pay the plaintiff € 807.80 plus 5 percentage points interest above the prime rate since July 23, 2010.
Orders the plaintiff to pay 1/5 of the costs and the defendant to pay 4/5.
The judgment is provisionally enforceable.
Facts:
The plaintiff, a company involved nationwide and internationally in the erection of scaffolding and shoring, maintains liability insurance with the defendant, which is based, inter alia, on the General Insurance Conditions for Commercial and Personal Liability Insurance (AVB 2005), the BBR PHV-BAU and the BBR-BAU 99. In accordance with clause 6.2 of the latter conditions, the insurance also covers damage to self-propelled work machines that the policyholder has rented or borrowed from companies working on the construction site for work on the construction site.
The plaintiff claims:
On 20.05.2009 at around 14:45, one of its employees was working on a construction site at the M viaduct, T-Straße. Due to the construction progress, scaffolding parts had to be moved from one place to another. No wheel loader suitable for this purpose was available on site. On the basis of the contract for work and services between the company and Company I, Company I provided the employee with a wheel loader free of charge. Due to carelessness, her employee had damaged the wheel loader when reversing while moving the scaffolding parts, causing it to crash into a beam on site.
The plaintiff reported the damage to the defendant on May 25, 2009, enclosing photos of the damaged wheel loader. Company I, which constantly needed the wheel loader, had the vehicle repaired and sent the plaintiff the repair invoice for € 16,428.15, which the plaintiff forwarded to the defendant. Since the invoice was not settled, Company I offset the plaintiff’s claims for compensation for work in the amount of the repair claim. The company subsequently paid € 3,000.00 to the plaintiff, but then refused cover and demanded repayment of the payment on account.
The plaintiff therefore made a claim against the defendant for payment of a further € 13,428.15, a declaration that there was no obligation to repay the payment on account and payment of pre-trial legal fees.
After withdrawing the application for a declaration of lack of repayment obligation and converting the application for payment to an application for a declaratory judgment for the granting of cover, the plaintiff now applies for the following:
It is established that the defendant is obliged to grant the plaintiff, on the basis of the business liability insurance contract concluded between the parties, legal protection in accordance with the conditions for the extrajudicial and judicial assertion of the payment amounts withheld by way of offsetting against claims for damages from a damage event of 20.05.2009 of the company I, A-Straße in the amount of € 13,428.15 plus interest in the amount of 5 percentage points above the base interest rate.
Order the defendant to pay her extrajudicial costs in the amount of € 807.80 plus 5 percentage points interest above the prime rate since July 23, 2010.
The defendant has acknowledged the application for a declaratory judgment under protest against the burden of costs and otherwise applies for
dismiss the action.
It disputed the grounds and amount of the liability claims before acknowledging this claim after amending the application for cover.
For further details of the parties’ submissions, reference is made to the content of the written submissions exchanged between them, including annexes, and the minutes of the hearing.
Reasons for the decision:
The complaint is well-founded.
The defendant’s obligation to provide cover was to be pronounced on the basis of the acknowledgement given. The defendant is obliged to pay the pre-trial legal fees on the grounds of default, as it had refused to provide cover to the plaintiff prior to the proceedings.
With the exception of the withdrawn part of the action, the costs of the legal dispute were to be imposed on the defendant, Section 91 ZPO. Contrary to the opinion of the defendant, § 93 ZPO does not apply, although the defendant has acknowledged the amended application for a declaration of coverage. However, this acknowledgement is not an immediate one within the meaning of Section 93 ZPO. The plaintiff had originally requested that the defendant be ordered to pay her € 13,428.15. The defendant defended itself against this and the other motions exclusively with objections to the grounds and amount of the liability claim. It has not raised any objections under cover law – because it obviously does not exist. The court then advised the plaintiff that there were reservations about the claim for payment of € 13,428.15, as the liability insurer is in principle free to decide whether it wishes to satisfy the liability claims asserted or attempt to defend itself (legal protection obligation). Therefore, the policyholder can generally only sue for a declaration that the insurance cover is granted in accordance with the conditions, unless the existence of the liability claim has been legally established (KG IBR 2007, 343; OLG Karlsruhe VersR 2005, 781; OLG Düsseldorf R + S 2001, 16; Wendt R + S 2008, 265/278) or recognized – then action for indemnification is possible – or the policyholder has satisfied the claim, then action for payment to the policyholder is possible (OLG Stuttgart R + S 2010, 284 with comment Steinbonn, jurisPR-VersR 7/2010, Anm. 4). The court also pointed out that this fundamental constellation was not changed by the fact that in the present case the injured party satisfied itself by offsetting a claim of the policyholder against the alleged liability claim. This offsetting does not constitute satisfaction within the meaning of § 106 VVG and therefore does not convert the claim for exemption and legal protection under insurance law into a claim for payment by the policyholder against the insurer. In this situation, the insurer fulfills its legal protection obligation by financing an active lawsuit of the policyholder against the injured party for payment (due to unjustified set-off) (OLG Hamm VersR 1978, 80; Schneider in Beckmann/Matusche/Beckmann, Versicherungsrechts-Handbuch, 2nd edition, § 24, para. 17; Baumann in Berliner Kommentar zum VVG, § 150, para. 12 and § 154, para. 13). The court advised the defendant that, due to the principle of separation applicable in liability proceedings, the grounds and amount of the liability claim must be decided exclusively in the liability proceedings, whereas in the coverage proceedings the policyholder does not need to prove the existence of the liability claim; the injured party’s assertion is sufficient in this respect (OLG Hamm VersR 2005, 1678, 1679; Lücke VK 2010, 145/146).
On the basis of this information, the plaintiff converted the claim for payment to a claim for a declaratory judgment and the defendant then acknowledged the converted claim. However, this was done under the “pressure” of the court notice and by abandoning their previous legal position, according to which denying the liability claim should be sufficient to refuse cover. In this situation, the acknowledgement given is not an immediate acknowledgement within the meaning of Section 93 ZPO, which could release the defendant from the obligation to bear costs (OLG Cologne MDR 2006, 226; Zöller/Herget, ZPO, 28th edition, Section 93, para. 4).
LG Dortmund, judgment of 27.01.2011, Ref. 2 O 275/10