DE: Insurance recourse - damage caused by third parties

Feb 25, 2022 Benn-Ibler Rechtsanwälte

An employer is only liable to the accident insurance company in the event of an accident at work of his employee if he or one of his organs can be accused of having caused the accident intentionally or through gross negligence. According to the German Federal Supreme Court (Bundesgerichtshof, BGH), recourse against the company is not possible if the damage was caused by a third party.

In order for a roofing company to fulfil its contract, it commissioned a scaffolder. The company then awarded this contract to another company. The scaffolding was ultimately erected without toe boards and safety nets. As a result, an apprentice of the roofing company subsequently fell and injured himself. The accident insurance company covered the costs and now wants to take recourse from the roofing company.

Contrary to the opinion of the Court of Appeal, there is no contractual claim of the injured apprentice against the roofing company transferred to the accident insurance. For this to be the case, the employer would have had to have intentionally caused the accident. Here, the limitation of liability under Section 104 para 1 sentence 1 of the Seventh Book of the German Social Code (Sozialgesetzbuch, SGB VII) applies.

The BGH also did not accept a separate recourse claim under Sec. 110 para 1 SGB VII of the statutory accident insurance. This claim is not a transferred claim for damages of the injured apprentice, but an original, independent claim of the social insurance agency, which is of a private law origin. Such a claim requires that the entrepreneur himself or a person authorised to represent him has caused the insured event intentionally or by gross negligence. A failure to exercise due care on the part of a third party, such as the scaffolder in this case, is not sufficient. An attribution of the fault of the scaffolder according to Sec. 278 of the German Civil Code (Bürgerliches Gesetzbuch, BGB), who caused the insured event intentionally or by gross negligence, is not possible within the scope of the right of recourse according to Sec. 110 para 1 SGB VII. Secs. 110 et seqq. of the Social Code, Book VII (SGB VII) constitute a conclusive regulation with regard to the insurance companies' possibilities of recourse against the employer. A more extensive liability is not intended.

BGH, VII ZR 170/19 (09.12.2021)