OGH: Indemnity Despite Changed Roof Structure

Oct 1, 2026 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) recently considered whether replacement value indemnity is payable under a buildings insurance policy when the reinstated structure is constructed differently from the original.

Canopy damaged by snow load

In January 2021, snow load destroyed a tent-shaped canopy at the claimant’s business premises. The claimant replaced it with a more robust canopy of a different design, which did not cover exactly the same roof space. The insurer paid the actual value but refused to cover the additional costs required for replacement value indemnity.

Reinstatement clause applicable to buildings

The OGH held, as a preliminary matter, that Article 4.1.1 of the Supplementary Conditions for Property Insurance (Ergänzende Bedingungen für die Sachversicherung – hereinafter EBS), being the provision specifically applicable to buildings, takes precedence over the general provision in Article 4.1.3 EBS. Accordingly, entitlement to replacement value indemnity depends upon whether the newly erected building satisfies the requirements of Article 4.1.1 EBS.

Reinstatement generally requires a building comparable in type, location, overall size, and intended use. The replacement must, in substance, serve as an economic substitute for the destroyed building, but need not be identical in every respect. The clause permits modernisation and therefore allows for technological advances, modern construction methods, and changing operational requirements.

Identical operational purpose and comparable function

The original and replacement canopies served the same operational purpose – protecting the entrance, parts of the car park, and the bicycle and shopping-trolley parking areas from the weather. Accordingly, differences in construction and covered area did not prevent the replacement canopy from qualifying as reinstatement under the policy.

Despite these differences, the replacement canopy remained, in substance, an appropriate substitute for the original. The requirements for replacement value indemnity were therefore met.

OGH 7 Ob 70/26h (24 June 2026)