The insurance conditions on which the insurance policies are based require a sudden external event that has an impact on the body and leads to involuntary damage to health for an insured accident event. The insured person’s own movements alone are not sufficient. However, something else may apply if the insured person can no longer control their own movements and, for example, slips.
Tenor
The Senate points out that the appeal is unlikely to be successful, that the case is not of fundamental importance and that the further development of the law or the safeguarding of uniform case law do not require a decision by the Senate. The Senate therefore intends to dismiss the appeal by order in accordance with Section 522 (2) sentence 1 ZPO.
Reasons
The plaintiff is claiming conditional compensation under four accident insurance policies that he took out with the defendant.
On August 29, 2005, the plaintiff was sawing wet wooden pallets into firewood in his garden. He took one pallet at a time from the pile, lifted it and swung it around in the direction of the circular saw while holding it flat in front of his stomach. During one of these lifting operations, the plaintiff felt a crunching sensation in his shoulder and neck area and pain, which worsened. Due to persistent complaints, the plaintiff underwent surgery on his cervical spine in April 2006 for spinal canal stenosis, foraminal stenosis with segmental instability; the C5/6 disc, foramina and retrophytes were removed; the cervical vertebrae were stiffened with implants.
The plaintiff claims that he slipped with his foot while lifting and swinging, which caused the injury. The plaintiff considers the event to be a conditional accident and claims that he is 50% disabled as a result of the injury he suffered, which led to the need for an operation.
The Regional Court dismissed the action and stated that it had not been able to establish that the plaintiff had slipped while lifting the pallet. The plaintiff had always described the event pre-trial and in the statement of claim without the slip. It was only in response to the objection in the statement of defense that the event described so far was not an accident because there had been no external impact on the plaintiff’s body that the plaintiff supplemented his description. It could not be ruled out that this was an adjustment to the defendant’s objection.
The requirements of accident fiction according to clause 1.4 of the General Terms and Conditions of Insurance were not met, as the exertion of force was not forced to defend against an external event. Whether the consequences of the injury asserted by the plaintiff were covered by the fiction of an accident at all, in particular whether the herniated disc constituted a dislocation, should rather be denied, but could be left open. The causality of the incident for the plaintiff’s complaints is therefore irrelevant.
The plaintiff’s appeal is directed against this, who wishes to pursue his first instance claim “in full” – in fact, however, the sum of € 25,000 from policy no. … still claimed in the first instance is missing from the announced appeal – and alternatively requests a referral back. In support of his appeal, the plaintiff argues that the event alleged by him constitutes an accident; insofar as the Regional Court expressed legal concerns in this respect, these are not comprehensible. The doubts existing in factual terms are also unfounded. The plaintiff had merely clarified his account, not adjusted it. He had not provided more detailed information beforehand because he had expected to be asked by the defendant to provide more detailed information if this was of importance to it. As an insurance agent, the plaintiff was also aware of this request for additional information. He himself had not attributed any significance to the slip; this was also not to be expected, as the plaintiff had not fallen and he had assumed as a matter of course that it was an accident. Despite several years of examination, the defendant had not had the incident described in more detail. On the contrary, it had obtained expert opinions on the consequences of the accident. The plaintiff therefore had no reason to provide a more detailed description, not even in the statement of claim, because he could assume that the defendant was not questioning an insured accident event. The submission could therefore have concentrated on the consequences of the accident. The defendant’s denial constituted contradictory conduct. It was also credible that the plaintiff had slipped. He had been working on grass; if one moves repeatedly on the same spot, it can become slippery even in dry weather.
In any case, there was an accident within the meaning of the fictitious accident according to Clause 1.4. At the time of the slip, a previously deliberate effort to defend against an external event was forced, as the plaintiff was no longer able to hold the pallet due to the external force and it fell out of his hands. As a result of this event, the plaintiff’s joints in his spine were dislocated. The damage to the plaintiff’s health after the accident was to be subsumed under the formulation “dislocation of a joint” or “tearing” of the spine.
The accident had led to cervicobrachialgia on the right with motor deficits and dysaesthesia in the right arm. Permanent damage included motor function impairment of the shoulder, arm and cervical vertebrae, a chronic pain syndrome with pain dependent on rest and exertion and restrictions in lifestyle due to the stiffened vertebrae and the resulting movement restrictions.
The appeal is likely to be unfounded.
The Regional Court rightly assumed that the plaintiff was not entitled to the claims asserted.
The insurance conditions on which the four contracts are based each require an insured accident event to be a sudden external event affecting the body which involuntarily leads to damage to health (cf. Clause 1.3 of the agreed AUB in each case). Such an event has not been proven. The mere lifting of the pallet and the resulting swing from the stack to the circular saw are mere movements of the plaintiff’s own, during which no external event had an effect on the plaintiff’s body. An accident could only have occurred if the plaintiff’s own movement had led to a sudden external impact, in particular if the plaintiff had slipped during his turning movement. In this case, the initially voluntary self-movement would no longer have been targeted and controllable for the plaintiff in its further course; rather, self-movement and external influence would then have coincided (see BGH decision of January 28, 2009 – IV ZR 6/08). However, the Regional Court was unable to establish that the plaintiff had slipped. The Senate is bound by this finding in accordance with Section 529 ZPO because there are no concrete grounds to doubt that the findings of the Regional Court are incorrect or incomplete. After hearing the plaintiff in person, the Regional Court came to the conclusion that doubts remain as to the accuracy of his claim that he had slipped. This is not objectionable. In view of the circumstances, the Senate also considers it possible that the plaintiff, who first stated that he had slipped in the statement of defense, merely wanted to refute the defendant’s objection that the events stated so far did not constitute an accident, but no longer described an event that he had actually experienced. This is particularly obvious because the plaintiff had not previously given such a description either in the accident report or to the doctor who first treated him or to the two experts.
It is possible that he failed to do so because he did not consider this fact to be significant and the defendant did not ask for any further details. However, it is just as possible that the plaintiff wanted to rectify a description that was recognized as inconclusive during the trial.
The defendant did not inspire any trust in the plaintiff worthy of protection that he would not dispute a conditional accident. The assessment of the plaintiff’s state of health arranged by the defendant was not suitable to justify the plaintiff’s expectation that the defendant would not doubt his description of the accident. An insurer can obtain certainty that an accident has occurred independently of the description of the policyholder by establishing typical accident injuries. Therefore, the performance of an expert opinion cannot be understood by the policyholder in such a way that the insurer assumes an accident in any case. Moreover, the second expert expressly expressed doubts that the events described by the plaintiff constituted an accident. For this reason, too, the plaintiff could not rely on the defendant not adopting this objection in the proceedings.
The plaintiff also did not suffer an injury deemed to be an accident pursuant to Clause 1.4 of the agreed AUB.
However, the reasons given in the contested judgment do not apply in this context. The exertion of force only required in accordance with Clause 1.4 does not have to be made to defend against an external event or be forced by it. If this were the case, it would already be an accident within the meaning of para. 1.3 AUB (cf. Grimm, Unfallversicherung, 4th ed., para. 1 AUB 99, marginal no. 51).
It can also be left open whether damage to an intervertebral disc can be subsumed under the spinal injuries mentioned in Clause 1.4 AUB. The fact that intervertebral discs are neither joints nor muscles, tendons, ligaments or capsules according to medical usage speaks against this; however, the everyday understanding of an average policyholder could speak for this, who, because this clause mentions the spinal column as a whole and not only its bony components, could possibly understand damage to an intervertebral disc as being covered by this provision, at least in the event of a rupture of the fibrous ring (cf. on the one hand BGH NJW-RR 1989, 217, on the other hand Grimm, loc. cit, No. 5 AUB 99, para. 63 a.E.). In any case, clause 5.2.1 of the agreed AUB excludes insurance cover for intervertebral disc damage. This risk exclusion is effective, even if it does not allow proof of a predominant causation by an accident event (as in the case of the contracts 48036484 and 50616024); it takes into account the fact that disc damage is very often caused by signs of wear and tear and is therefore generally attributed to the area of health insurance and not accident insurance. As the plaintiff himself claims and as is also evident from the medical findings submitted, he has undergone an operation for damage to an intervertebral disc. A damaged intervertebral disc was removed, stenoses, i.e. constrictions, were eliminated and the remaining instability of the vertebrae as a result of the damage and removal of the intervertebral disc was eliminated by means of an implant. As a result, the mobility of his cervical spine is restricted. The plaintiff does not allege any other injuries to his spine. He merely asserts in general terms that the alleged event caused orthopaedic damage which is independent of the operated disc damage. A specific injury within the meaning of para. 1.4. However, the plaintiff does not claim this. The cervicobrachialgia diagnosed in the plaintiff after the event of August 29, 2005, which the plaintiff wants to be understood as a strain, is nothing other than the intervertebral disc damage operated on the plaintiff later. This is because cervicobrachialgia is the collective term for pain and movement and sensory disorders in the neck, shoulder and arm area which are caused by irritation of the nerve roots emerging from the cervical spine as a result of a herniated cervical disc or as a result of degenerative changes in the spine.
There is an opportunity to comment within four weeks.
(OLG Frankfurt, reference decision of 28.12.2010, Ref. 7 U 102/10)