No Insurance for Improper Use of Parking Brake

Jan 19, 2024 Benn-Ibler Rechtsanwälte

Under Section 61 of the Austrian Insurance Contract Act (Versicherungsvertragsgesetz, hereinafter VersVG), the insurer is released from its obligation to pay if the policyholder caused the insured event intentionally or in a grossly negligent manner.

In front of the plaintiff’s house there is a car park with a gradient of up to 30%. If a vehicle is not properly secured, it can roll down the slope and travel a distance of almost 20 metres. This fact was known to the plaintiff. He was also aware of the fact that his vehicle was equipped with a hand brake, a manual gearbox, and a ‘hill-hold’ control system which is activated for 20 seconds, holding the brake in position while the vehicle is put into gear, thus preventing rollback.

In January 2022, the plaintiff parked his car in front of his house in an unsecured manner. He activated the hill-hold control by pressing the brake pedal. After 20 seconds, the brake was released again and the vehicle rolled backwards and into the plaintiff’s shed.

There was a contract of comprehensive motor vehicle insurance in force between the plaintiff and the defendant. The plaintiff claimed repair costs from the defendant.

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) made the following observations on the case:

A flagrant breach of the duty of care is gross negligence. Damage must be foreseeable and highly likely to occur. A breach of duty of care particularly serious in objective terms must also be very serious in subjective terms.

Under Section 23(5) of the Austrian Road Traffic Regulations (Straßenverkehrsordnung, StVO), drivers are obliged to secure their vehicles against rolling away before leaving them.

Two factors are important in assessing whether a vehicle is adequately secured, according to OGH case law. The first is that the policyholder must not have intentionally left the vehicle unsecured and the second is that the imminent occurrence of damage must not be obvious.

Given that the plaintiff was familiar with both the local conditions and the technical equipment of his vehicle, he is considered as having acted grossly negligent.

As a result, the defendant is released from liability in accordance with Section 61 of the VersVG.

OGH 7 Ob 127/23m (27 September 2023)