Traffic Law & Accidents

§Not at fault: what you are entitled to

The other driver's motor liability insurer pays for your loss and, where liability is clear, your legal fees too.

The opposing insurer is also your debtor. Its interest is to keep the loss as small as possible: it offers quick "claims management", sends its own surveyors and steers repairs to partner garages. Insurers only pay what is claimed; people who settle on their own often give away items such as loss in value.

• Repair costs; you do not have to accept used parts. The risk of the garage overcharging generally lies with the party at fault, even if the repair costs more than estimated (Federal Court of Justice, 16 January 2024, VI ZR 266/22).
• Your own independent surveyor, even if the other side's surveyor has already inspected the vehicle.
• A hire car or compensation for loss of use; you do not have to accept the insurer's hire car offer.
• Reduction in market value, towing costs, a general lump sum for expenses.
• Damages for pain and suffering, loss of earnings and loss of ability to run the household if you were injured.
• Be careful with garages that bill the insurer directly under settlement schemes: they often agree not to involve a surveyor.

§Apportioning liability, operating risk and burden of proof

A claimant must prove both the basis and the amount of the claim. Where the course of events is unclear, prima facie evidence and operating risk help.

The vehicle keeper is liable for damage arising from the operation of the vehicle even without fault (§ 7 of the Road Traffic Act, StVG). Fault and operating risk on both sides are weighed; where an event was unavoidable even for an ideal driver, liability falls away. The claimant must produce original documents such as repair and hire car invoices.

• Operation covers everything closely linked to the vehicle's function: for example a wheelie bin pushed across the road while being emptied (Federal Court of Justice, 12 December 2023, VI ZR 77/23), or stones thrown by a verge mower onto a motorcyclist (Munich Higher Regional Court, 31 January 2024, 10 U 683/23).
• A driver pulling out from the kerb is usually solely liable if the course of events cannot be established (Hanau Local Court, 5 June 2023, 39 C 329/21; § 10 StVO).
• Accidents involving e-scooters on pavements, cyclists or pedestrians raise particular liability questions.

§First steps after an accident

The more you record at the scene, the easier the settlement.

• Note names, contact details, number plates, makes and insurers of everyone involved; photograph the scene and the damage; note any witnesses.
• If insurance details are missing, the central information service of motor insurers (Zentralruf der Autoversicherer) can provide them; in exceptional cases the registration office or the Federal Motor Transport Authority.
• Notify the other side's insurer within two months of learning of the loss and who caused it. The easiest way is the claimant questionnaire developed jointly by insurers and the legal profession; we will send it to you.
• If the police recorded the accident, we apply for access to the file, for which we need your power of attorney.
• The insurer has a reasonable period to examine the claim, usually up to six weeks from receipt of complete documents.
• Tell us whether you have legal expenses insurance; it allows a quicker lawsuit if settlement is delayed.
• Do not make any statement on fault to the police or prosecutor before taking advice.

§Accidents with a leased car

With a leased car, two rights are infringed: the lessor's ownership and the lessee's possession.

The lessor is the owner and claims the vehicle damage and loss in value from the party at fault; the lessee needs the lessor's express authorisation to do so. Under the leasing terms, the lessee must report the damage immediately and usually bears the risk of maintenance, defects and damage. The lessee's own claims concern the use of the car.

• The lessee's own claims: loss of use, hire car, towing, surveyor and legal fees, loss of earnings, pain and suffering.
• When the car is returned after an accident, disputes over the lessor's final settlement are common, and it can be challenged.
• Bring a copy of the leasing agreement to our first meeting.

§Fines, driving licences and road traffic offences

Even if you feel you were at fault, make no statement without a lawyer.

• Regulatory offences: speeding, red lights, tailgating, vehicle defects.
• Criminal offences: drink- or drug-driving, endangering road traffic, dangerous interference, leaving the scene of an accident, negligent bodily harm.
• Driving licences: withdrawal and reissue.