I. Public Liability – No. 1.1 General Terms and Conditions of Liability Insurance (AHB) – Loss of Use as financial losses
The OLG Karlsruhe has stated in its ruling of October 31, 2013 (6 U 84/12), that a loss of use was not to be deemed as material damage within the meaning of No. 1.1 of the General Terms and Conditions of Liability Insurance (AHB).
Defective laying of tiles – loss of use due to the removal and re-installing of machinery
The policyholder operating a tile specialist shop layed tiles in the bottling plant of a wine press house. After some time the tiles became loose. It was indisputable that those tiles had been layed in a defective manner and, in order to remedy the defect, that the entire flooring had to be renewed. However, this could only be carried out by removing the wine press house's machinery in the bottling plant and by re-installing them at a later stage. Against this background of re-installing and removing machinery the wine press house suffered some considerable loss of use.
Subsequently, the policyholder sued his/her public liability insurer for granting insurance cover concerning the costs resulting from the loss of use.
Differentiation of material damager from damage resulting from loss of use (financial losses)
The OLG Karlsruhe has dismissed the case. The subject matter of the insurance cover was persons and material damage pursuant to No. 1.1 General Terms and Conditions of Liability Insurace (AHB). Material damage was damage to objects being owned by a third party (in this case: the wine press house) and which were not at the same time subject matter of the contractual works. According to the opinion of the OLG Karlsruhe such a material damage was, in fact, not the case with respect to the costs incurred for the loss of use of the wine press house. It was rather an issue of mere financial losses within the meaning of the terminology of the terms and conditions of the insurance. Financial losses, however, were only covered by the insurance pursuant to clause 1.1 General Terms and Conditions of Liability Insurance if they resulted from an otherwise related damage to persons or to material. Such an indirect financial loss, however, did not exist as a subject matter of present proceedings.
The OLG Karlsruhe has approved the appeal against the judgement with reference to the judgement of another OLG: With reference to that judgement the policyholder had argued that the limitation of risks in the event of so-called damage of performance was to be interpreted as a surprising clause within the meaning of § 305 c Sec. 1 German Civil Code (BGB) (Law on General Terms and Conditions) and therefore, ineffective. An appeal has not been lodged.
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