I. Public Liability – No. 1.1 General Terms and
Conditions of Liability Insurance (AHB) – Loss of Use as
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
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