Loss of use after a road accident: What you should know

Loss of use after a road accident: What you should know

If you are involved in a road traffic accident through no fault of your own and your car is damaged - whether on the A1 motorway near Bremen or in Sulingen town traffic - it is usually not only the visible damage (repair costs) that is incurred, but also so-called Loss of use damage - i.e. the damage caused by the fact that you cannot use your vehicle for a certain period of time. The law stipulates that you can also demand compensation for this. But what exactly does it depend on? Here are the most important points.

1. claim and principles

• According to German damage law (§ 249 BGB), accident victims are entitled to compensation for the condition they would have been in if the accident had not occurred - this also includes the ability to use the vehicle.

• The claim for loss of use arises, if the vehicle is not roadworthy or not roadworthy due to the accident or in the event of a total loss, as long as no replacement vehicle is available.

• As the injured party, you often have a choice: either you use a hire car (which corresponds to the damaged vehicle) or you claim compensation for loss of use in cash.

Especially in more rural regions such as Sulingen, where people are often more dependent on their own vehicle than in large cities, the lack of a utilisation option can have major practical consequences.

2. calculation of the compensation for loss of use

• The compensation is generally calculated as Daily flat rate × number of days lost.

• Proven tables are often used for the daily flat rate, such as the Schwacke list / Sanden-Danner-Küppersbusch. The vehicle is categorised in a group according to type, age, equipment, etc. Vehicles over 5 years old can be downgraded.

• In the event of a total loss, the „replacement period“ is often used as the downtime.

At our law firm in Sulingen or Bremen, we regularly check such calculation bases as part of your claims settlement.

3. duration: What is included in the days lost?

The period for which you can claim loss of use typically comprises several partial periods:

• Injury investigation periodFrom the accident to the expert opinion or until the extent of the damage has been established. Delays for which you are not responsible must be taken into account.

• Consideration periodAfter you have received the report - a short period of time to decide whether to repair or replace the vehicle. Often 1-3 days.

• Repair time or replacement timeDepending on whether the vehicle is repaired or has to be replaced in the event of a total loss. Delays, e.g. due to the procurement of replacement parts, shall be borne by the claimant, unless the claimant is responsible.

Example: In one case, the Higher Regional Court of Celle awarded 26 days of loss of use - not only the pure replacement time, but also the expert opinion time + consideration time were taken into account. Such decisions are also of great practical importance for injured parties in Bremen or Sulingen.

4. case law: important judgement

A central judgement is the Judgement of the Federal Court of Justice of 5 February 2013, Ref. VI ZR 363/11. The BGH made this clear:

The claim for compensation for loss of use includes not only the necessary repair or replacement period, but rather additional the time for the Damage assessment and an appropriate Consideration time.

This judgement considerably strengthens the rights of accident victims - including here in the Bremen and Diepholz region - and prevents insurers from reducing compensation claims to the mere duration of repairs.

5. common points of contention & what you should look out for

• Whether an existing Second car is available and whether its use is reasonable. If so, the claim for loss of use can be reduced.

• Whether you were actually willing to use the vehicle and would have used it. If there is no proof, the claim may be reduced.

• Whether the delay was caused by you (e.g. delayed repair order) - this can also lead to reductions.

• Whether the insurer tries to compare the loss of use with cheaper car hire costs. This can only be an argument if you actually wanted to hire a replacement car and this is reasonable. Not automatically a reduction.

We regularly experience such cases at our locations - both in Bremen city centre and in the rural area around Sulingen.

6. practical tips for those affected

• Have an expert report drawn up at an early stage and show this to the opposing insurance company. In this way, you can secure the damage assessment period.

• Document repair times, spare parts delivery times and enquiries - anything that proves delays.

• Point out that you are claiming a loss of use and do not simply accept the quoted cost of a hire car if the loss of use is higher.

• If you are not sure whether your situation is atypical (e.g. total loss with a long replacement period), seek advice from a motoring lawyer - for example at our law firm in Sulingen or Bremen.

Conclusion

• In the event of an accident through no fault of your own, compensation for loss of use can be claimed as an alternative to a hire car.

• The amount is calculated on the basis of the daily flat rate × duration of downtime; standard tables such as Schwacke apply to the flat rate.

• The duration includes more than just repair time: Expertise & consideration time also count.

• The BGH judgement VI ZR 363/11 is central and secures this claim framework.

If you are involved in a claim - whether in Bremen, Sulingen or the surrounding area - it is worth checking these points carefully and, if necessary, seeking legal assistance.

If you need support in enforcing your claim for compensation for loss of use or have questions about the legal details, we will be happy to assist you. Our law firm Steveker & Odebrecht specialises in traffic law and supports you at our locations in Sulingen, Bremen, Osnabrück or online.

FAQ

1. When does the entitlement to loss of use begin?
   As a rule, the claim begins on the day of the accident - as soon as it is established that your vehicle cannot be used immediately and the damage is assessed.

2. How many days of loss of use can you realistically expect?
   In the event of a total loss or replacement vehicle procurement, normally around 14 to 16 days; longer periods are possible, e.g. if expert opinion time + consideration time are added or spare parts are difficult to obtain. (Example: OLG Celle - 26 days)

3. Can the insurance company reduce the claim if I have a second car?
   Yes, but only if the use of the second car is reasonable. The insurance company is responsible for providing proof.

4. What do I do if the repair is delayed (e.g. spare parts)?
   Document everything and inform the insurer of any delays - if you are not at fault, these are also eligible for compensation.

5. Do I have to use a hire car myself or is the compensation for loss of use in cash sufficient?
   No, you do not necessarily have to use a hire car. You have the right to choose: hire car or compensation for loss of use.