Is Scratching a Car’s Paint with an Iron Shovel an Accident?

Mar 1, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) dealt with the definition of an accident as used in insurance contracts. An accident is an event that takes place suddenly and directly from the outside by means of mechanical force.

The plaintiff had taken out a fully comprehensive insurance policy for his car with the defendant. The contract was based on the Austrian General Conditions for Motor Vehicle Comprehensive Insurance (KKB 17). These conditions read, in part, as follows:

‘1.4 The vehicle and its parts stored in or attached to the locked vehicle are insured against damage, destruction and loss [...]

1.5 by wilful or malicious acts of persons outside the company;

1.6 by accident, i.e. a sudden, direct external event involving mechanical force; [...].’

In April 2021, the plaintiff noticed scratches in his car’s paintwork, probably caused by a third party using an iron shovel improperly when clearing snow. As a result, he applied for a declaration that the defendant was obliged to provide cover for the repair of all the damage.

The claim was upheld in its entirety by the court of first instance. However, the plaintiff’s claim for declaratory judgment and payment was dismissed by the court of appeal. The OGH then went on to rule on the facts of the case as follows:

The scratches on the car’s paint were caused by a direct external mechanical impact. However, the question of whether the impact of the iron shovel was ‘sudden’ had to be resolved.

A claim is considered ‘sudden’ if it occurs within a relatively short timeframe. As the term includes a subjective element of the unexpected, an event is also considered ‘sudden’ if the consequences were unexpected by the policyholder.

In summary, the OGH came to the following conclusion: If a third party caused damage to the car, the event was sudden and unforeseeable for the policyholder. However, there is no sudden impact if the plaintiff himself removes the snow from the vehicle with an iron shovel and thereby damages the car’s paint.

OGH 7 Ob 170/23k (22 November 2023)