OGH: Incidental damage caused by repair work and procurement
If, in the course of remedying defects, necessary preparatory and follow-up work requires damage of property belonging to the builder, insurance coverage exists even if the policyholder does not act as the builder's direct contractor.
The plaintiff regularly commissioned a district heating engineering company to carry out repair work. The plaintiff has business liability insurance with the defendant. The General Conditions for Liability Insurance (Allgemeinen Bedingungen für die Haftpflichtversicherung) stipulate that a series of damages is to be considered as one insured event if the damage events are based on similar and temporally related causes, provided they are legally, economically or technically connected. In the case of damage caused by repairs, it is standardised that the insurance cover also refers to such damage that is attributable to damage to the client's property due to repairs. The plaintiff now seeks payment from the insurance for incidental damages, such as finding and uncovering the damaged areas, because the plaintiff's contractor performed defective work in several cases during repair work.
The lower courts did not uphold the plaintiff's claim because such costs were not covered by insurance, but the Austrian Supreme Court (Oberster Gerichtshof, OGH) took a different view:
It decided that general insurance conditions according to Sections 914 f of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB) were to be interpreted according to the standards of an average policyholder, taking into account the purpose. This would mean that, unless the provisions were discussed orally, they had to be interpreted according to the wording. The wording only refers to damage to property of "one" contracting party, without further specification, which is why the OGH assumed that damage caused by a contractor of the plaintiff is also covered by the insurance of an incidental damage caused by repair. The interpretation also made sense because the provision would otherwise never apply due to the common practice in the construction industry of appointing contractors.
However, the OGH left open the question of whether the damage events qualified as a series of damage.
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