Do you have a car that dated exhaust scandal is affected and do you have legal protection insurance? Then you have certainly already received mail from your insurance company that they will pay you the costs and that they will be "happy to help you".
Not so with ÖRAG Legal Protection, which is the legal protection insurer of the Bavarian Insurance Chamber. It is not uncommon for us to see appalled clients asking us whether we are just trying to steal money, as the insurer has propagated. For example, ÖRAG writes to one of our clients:
Ladies and Gentlemen,
You will receive the attached letter with a request for information.
In the past we had many discussions with policyholders who basically wanted to keep their vehicle and receive compensation from the manufacturer. You have not been informed by your lawyers that a pure claim for damages may also be possible, which does not require the vehicle to be returned. For lawyers, a lawsuit for reversal usually means a significant fee advantage, as the amounts in dispute are much higher. In your case, too, we aim to reverse the transaction. If this is in your interest, you do not have to take any further action. However, if you want to keep your vehicle, you should contact your lawyer and discuss with him the possibilities of claiming pure damages without returning the vehicle.
Mit freundlichen Grüßen
This is the question you might ask yourself when reading such a letter from your legal expenses insurer. First of all: Yes, the lawyer (usually) earns morewhen he requests the return of the vehicle. So is the lawyer all about money and not my rights at all? No of course not! We always inform our clients about all possibilities. The result is that nevertheless, more than 95% of our clients want to sue for return.
Quite simply: if the lawyer earns more, the legal expenses insurer has to pay more! Then the legal expenses insurance business may no longer be so profitable. ÖRAG would like to contact us and explain the advantages of such an approach to us - apart from the savings potential. In the following, we would like to point out some of the disadvantages of “only” suing for damages - as proposed by ÖRAG.
In the event of a lawsuit for (small) compensation, you cut yourself off from the possibility of correctly quantifying the damage and comparing yourself sensibly with the car manufacturer.
Let us take the following example: You are claiming - as proposed by ÖRAG - small damages. Then you have to keep your manipulated car and can demand compensation from the car manufacturer for the damage for which the "object of purchase - measured by the objective value of the service and consideration - was acquired too dearly" (on small damages BGH judgment of July 06.07.2021th, 40, Az .: VI ZR 20/XNUMX).
Exactly! And if you don't yet know how high this damage will be, you can use the simple formula:
As a pecuniary loss in the context of claims from tortious acts, the differential loss in the form of negative interest is to be compensated. The injured party can request exemption from liability, or alternatively leave the contract in place and demand reimbursement of the additional work caused by the unlawful act. In the case of a sales contract, this happens in such a way that the injured party is treated as if he had been able to conclude the contract at a lower price with knowledge of the true facts. This case law of the Federal Court of Justice, developed for cases of (quasi-) contractual liability, which also applies to third parties who are not contractual partners, is transferable to tortious liability. It is not about the interest in performance, such as in the case of compensation in the amount of the (fictitious) cost of remedying the defect, but rather that part of the purchase price for which the injured party bought the vehicle too dearly in ignorance of the defect (cf. BGH judgment of July 06.07.2021th, 40, Az .: VI ZR 20/XNUMX).
And how much was the vehicle bought too dearly or what should be sued?
Thank you, that is also the answer to the question.
As already mentioned at the beginning, we of course inform our clients about this possibility. But also that you can hardly answer this question seriously. It's good that there is legal protection insurance and this one private expert report in advance of this question finance could.
But isn't that expensive and it certainly takes a lot of time?
Right! That is why we are also amazed at the cover letter from ÖRAG. The thought of "just" getting the small amount of compensation seems a bit too short-sighted. From experience we can say that an emissions scandal mandate for small damages takes a lot more time than a "regular" one. This is not least due to the expert report, which first has to determine the difference value.
Can't you just compare yourself to the automaker?
Out of court, this is the absolute exception. The manufacturer is simply not interested in this. The question is, of course, also: what should you compare yourself to if only the small amount of compensation is claimed anyway? If the manufacturer pays this, this is equivalent to an acknowledgment. Of course, you can also go down with your ideas, but then give away cash.
Of course, you keep your car with this motion. That may also be wanted. But what if after the update this no longer works so that you want to continue using it or the resale value has deteriorated significantly due to the emissions scandal? Remember, the claim is for damages and NOT for a return. In addition, we have never heard of a client "Oh great, the car drives much better after the software update". You can imagine which is more likely ...
You alone decide whether you want to return the vehicle or at least want to keep this option open - no lawyer and no legal expenses insurer. But think about this step carefully, it always has consequences. However, there are reputable law firms that advise their clients and point them out to any difficulties.
The Gabler & Hendel lawyers do not represent every emissions mandate. With us, the client is advised individually by the lawyer.