Austrian OGH on Enforceability of Pre-trial Insurance Consultations

Oct 10, 2025 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled on the question of whether the costs incurred by an insurance advisor in asserting a claim for damages out of court are recoverable as compensable damages under Section 1333(2) of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch, hereinafter ABGB).   

The case at hand involved a traffic accident in which the plaintiff, a partnership, claimed damages from the liability insurance of the other party involved in the accident. Instead of a lawyer, the partnership hired a commercial consultant specializing in insurance matters, whose fee of EUR 360 it claimed as part of the damages.

The lower courts denied the admissibility of legal action on this point and dismissed the action in part, arguing that there was no legal recourse for pre-trial consulting fees.

Economic significance of alternative enforcement measures

The OGH disagreed with this view and clarified that if insurance advisors are commissioned to settle a claim out of court, their costs can be claimed as damages provided that the measure was appropriate, necessary, and proportionate to the claim. The focus here is on avoiding legal proceedings, not on preparing for them.

From a financial perspective, this decision underscores the importance of cost-effective, practical approaches to law enforcement. For smaller companies and private victims in particular, using such advisors can provide low-threshold access to legal assistance. The fact that insurance advisors are not subject to a legal fee schedule also opens up scope for more affordable, flexible solutions.

The OGH has validated the substantive basis of the claim, while endorsing a contemporary framework for legal proceedings conducted beyond the courtroom. With this ruling, the court specified that reimbursement is restricted to consulting expenses that are clearly essential and have a direct impact on facilitating out-of-court settlements. This judgment clearly supports efficient extrajudicial mechanisms and enhances trust in alternative methods of legal enforcement, yielding practical benefits for the business sector.

OGH 2 Ob 104/25w