OGH: Compensation for total loss in the lack of intention to replace vehicle

Feb 25, 2022 Benn-Ibler Rechtsanwälte

In the case at hand, the Austrian Supreme Court (Oberster Gerichtshof, OGH) dealt with the question of whether the owner of a motor vehicle that has been totalled in a traffic accident can claim compensation from the liable party in the amount of the difference between the replacement value and the wreckage value or only in the amount of the difference between the retail value and the wreckage value if it is established that he does not intend to replace the damaged vehicle with a vehicle of equal value.

The lower court assumed that the injured party did not intend to obtain an equivalent vehicle. From this, it concluded that the party was only entitled to the small difference between the retail value of the vehicle before the accident and the wreckage value as compensation for damages. However, the OGH rejected the view, which is also represented in the literature, that the use of the purchase price in the calculation of the difference presupposes an intention to replace the vehicle.

In the case of an economic or technical total loss of a vehicle, the injured party is in principle entitled to claim compensation for the objective reduction in value in the form of the difference between the replacement value in undamaged condition and the retail value of the wreck. In this objective-abstract calculation of damages, it is irrelevant whether the injured party intends to purchase an equivalent replacement vehicle. Therefore, the replacement value (purchase price) is to be taken into account in any case and not the usually lower retail value of the undamaged vehicle.

The replacement value is determined according to the residence of the injured party. If - as in the case at hand - a comparable vehicle can only be recovered abroad (this case: USA), the purchase price there - plus the costs incurred in importing it into the country of residence of the injured party - is decisive.

OGH 2 Ob 157/20g (28.09.2021)