Racing events (§ 2 b Para. 3 AKB) are only events in which the aim is to achieve a high speed and the participants are ranked. The exclusion clause therefore does not apply if the main purpose is to improve driving skills and control the vehicle in everyday traffic.
1. on the plaintiff’s appeal, the judgment of the Mannheim Regional Court of May 14, 2007 – 5 O 280/06 – is set aside on the point of costs and otherwise amended as follows:
The defendant is ordered to pay the plaintiff EUR 662.90 plus interest in the amount of 5 percentage points above the base interest rate since November 18, 2006.
It is established that the defendant is obliged to grant the plaintiff insurance cover from the motor vehicle liability insurance in accordance with the conditions with regard to the accident on April 20, 2006 at 6.30 p.m. on the Hockenheimring.
Reasons:
The plaintiff is claiming payment and cover from the defendant under a vehicle insurance policy.
The plaintiff took out liability and partially comprehensive insurance with an excess of EUR 150 with the defendant for his Audi 90 (registration number: ….), which was first registered in 1988, on the basis of the defendant’s general terms and conditions of insurance (AKB), which were not submitted until the appeal.
On April 20, 2006, the plaintiff drove the insured vehicle onto the vehicle of Adam J, which was braking in front of him, during a “tourist trip” on the Hockenheimring, causing considerable damage. The action brought against the plaintiff and the defendant, which was limited to the economic total loss of EUR 20,000, was dismissed by the Mannheim Regional Court (11 O 295/06) in a judgment dated March 7, 2007 on the grounds that claims for damages were excluded due to a tacitly agreed exclusion of liability. J has lodged an appeal against this judgment, which is pending before the 10th Senate of the Higher Regional Court of Karlsruhe (case no. 10 U 40/07). It is undisputed that damage of EUR 812.90 net was caused to the plaintiff’s own vehicle, which the plaintiff is claiming here. He is also seeking a declaration that the defendant must provide insurance cover under the liability insurance.
The tourist ride was based on the “Conditions for Tourist Rides” of Hockenheim-Ring GmbH (Annex K1, I 31). According to section 3 of the conditions, the StVO applies. Section 9 prohibits testing, training and racing. The defendant considers the tourist trip to be a racing event and invokes the risk exclusion according to § 2c a) of its general terms and conditions, which corresponds analogously to § 2b para. 3 AKB. It also considers claim 2 to be inadmissible due to a lack of need for legal protection, as the question of its obligation to assume liability would inevitably be clarified in the liability proceedings.
The Regional Court dismissed the action in the contested judgment of May 14, 2007, to whose factual findings reference is made. There was no obligation on the part of the plaintiff to wait until the legally binding decision in the parallel proceedings, so that the action as a whole was admissible. However, there was no insurance cover due to § 2b para. 3b AKB, as the journey on April 20, 2006 was a race. The risk exclusion applies not only to races in the sporting sense, but to races of any kind, as long as the aim is to achieve the highest speed. It is true that this was not a car race in the conventional sense, as neither the lap times were stopped nor was a winner officially declared at the end. However, the level of danger is comparable and the participants are aware of this.
The plaintiff contests this with his appeal, with which he finally applies,
1. order the defendant to pay the plaintiff EUR 812.90 plus interest in the amount of 5 percentage points above the base interest rate since the lis pendens;
2. declare that the defendant is obliged to grant the plaintiff insurance cover from the motor vehicle liability insurance in accordance with the conditions with regard to the accident on April 20, 2006 at 6.30 p.m. on the Hockenheimring.
The plaintiff requests that the appeal be dismissed.
For details of the parties’ submissions, reference is made to the parties’ written submissions and annexes.
The admissible appeal is largely well-founded.
The action is admissible overall. The plaintiff has a legal interest within the meaning of Section 256 ZPO in clarifying the question of whether the defendant is obliged to provide him with cover under the liability insurance contract. It is true that the pending liability proceedings may or must also decide whether the defendant is liable to the injured party J pursuant to § 3 PflVG. A judgment upholding the claim would not conclusively clarify the internal relationship between the plaintiff and the defendant. In addition, it is one of the duties of a liability insurer to defend against any unjustified third-party claims. Since the defendant denies its obligation to indemnify the plaintiff as a whole, the plaintiff’s legal interest in clarifying this issue cannot be denied.
The complaint is largely well-founded.
1. the plaintiff is entitled to compensation for his glass breakage damage to the vehicle from the defendant under the partially comprehensive insurance in accordance with § 12 para. 2e of the agreed general terms and conditions of insurance.
a. The defendant is not exempt from payment pursuant to § 2c a) of the agreed general terms and conditions of insurance. According to this, insurance cover is not granted for damage that occurs during participation in racing events or associated practice runs. The requirements of this exclusion provision are not met.
Risk exclusion clauses must be interpreted narrowly. Their scope of application – which the Regional Court did not observe – may not be extended further than their meaning requires, taking into account their economic purpose and the chosen wording. This is because the average policyholder need not expect to have gaps in the insurance cover without these being made sufficiently clear to him (Senate VersR 2007, 1078). Applying these standards, the plaintiff cannot be denied insurance cover on the basis of § 2c a) of the agreed AKB.
The term “racing event” from the AKB in dispute or the paraphrase used in the AKB 2004 of “driving events in which the aim is to achieve a maximum speed” refers to “races with motor vehicles” within the meaning of Section 29 (1) StVO (BGH NJW 2003, 2018). According to the administrative regulation to § 29 StVO, races are competitions or parts of a competition (e.g. special stages with racing character) as well as events (e.g. record attempts) to achieve maximum speeds with motor vehicles. From the perspective of the average policyholder, nothing else applies.
The average policyholder will also understand that the exclusion of risk applies not only to races in the classic sense, but also to all types of driving, in particular speed, touring, rallies and the like, as long as the aim is to achieve the highest speed (or even just the highest average speed), even if this may be lower in absolute terms than in racing events in the narrower sense (BGH NJW 2003, 2018; see also LG Stuttgart, Schaden-Praxis 2005, 312). However, the exclusion clause does not apply if the focus is on improving driving skills and control of the vehicle in everyday traffic, especially in extremely dangerous situations, and the achievement of the highest possible speed is not the main and ultimate goal, i.e. it is not important. The fact that such an event is held on a circuit that is not open to public traffic does not preclude this (OLG Hamm, RuS 1990, 43 – Circuit in Zandvoort; see also BGH NJW 2003, 2018).
According to the understanding of an average policyholder, the exclusion applies to rides in the context of an event whose character is characterized by the fact that the highest possible speed is achieved and then the participants are ranked. He will only understand an “associated practice drive” as a drive that relates directly to a specific driving event in which maximum speed is important in the sense described above. (OLG Cologne, VersR 2007, 683 with further evidence).
The plaintiff’s tourist drive on the Hockenheimring is not covered by the agreed exclusion of risk. The Senate has no doubt that the motor vehicles used, some of which have racing equipment, are subject to an increased risk at such an event despite the mandatory application of the StVO (see BGH NJW 2003, 2018). However, in the absence of scoring, ranking and timekeeping, a tourist ride is not a racing event or a driving event in which the aim is to achieve a maximum speed. The fact that the participants may undoubtedly also be interested in achieving the highest possible speeds is not sufficient in the required narrow interpretation of the exclusion clause, the wording of which the Federal Court of Justice described as “ambiguous” as early as 1975 (BGH VersR 1976, 379). Due to the increased risk, a separate treatment of tourist trips in the comprehensive insurance may also be appropriate in the interest of the insured community. However, this cannot be taken into account by way of interpretation, but only by including corresponding clauses in the policy conditions.
The defendant does not claim that the plaintiff caused the accident through gross negligence (§61 VVG).
b. The amount of the insured glass breakage damage results from the plaintiff’s cost estimate of EUR 812.90 net, which is not in dispute. The insurance cover also includes the pro rata labor costs, i.e. the costs for the removal of the broken and installation of the new glazing (OLG Munich VersR 1988, 1289), as well as the costs of accessories firmly attached to the glass (Prölss/Martin, VVG, 27th edition, 2004, § 12 AKB, RN 66). Insofar as the defendant believes that it only has to reimburse the material costs, this is based on the erroneous assumption that the plaintiff’s car was a total loss.
Taking into account the agreed deductible of EUR 150, this results in a claim of EUR 662.90.
2. the defendant is also obliged to provide cover in the liability insurance for the reasons set out in section 1. Since there is no racing event, it cannot invoke a breach of the obligation not to participate in such events (§ 2 b (1) a of the agreed AKB). It is therefore not necessary to explain in detail that the exemption from liability insurance benefits would be limited to EUR 5,000 in any case in accordance with § 2 b (3) of the agreed AKB.
The decision on the costs follows from sections 91, 92 (2) ZPO. The decision on provisional enforceability is based on sections 708 no. 10, 711 ZPO. There are no grounds for granting leave to appeal pursuant to Section 543 (2) ZPO.
(OLG Karlsruhe judgment of 6.9.2007, Ref. 12 U 107/07)