Comprehensive insurance – does it also pay in the event of gross negligence?
Does your comprehensive insurance cover the repair of your own vehicle in the event of an accident that you are responsible for? Not always. Because if gross negligence was involved, an insurance benefit can be reduced or even refused. But what exactly is gross negligence? We clarify and summarize the most important facts about comprehensive insurance.
The comprehensive insurance pays for its own damage
Rammed the neighbors while parking? Anyone who causes damage to their own vehicle must pay for the repair out of their own pocket. This does not apply to comprehensive insurance. The fully comprehensive insurance also pays for self-inflicted damage to your own vehicle. However, only if it is not a case of gross negligence. If, for example, alcohol was in the blood when parking, the driver is almost always left at his own expense:
- in the event of gross negligence, the comprehensive insurance does not have to pay
- Many comprehensive motor vehicle insurance policies also protect against gross negligence
- gross negligence must be proven by the insurer
- Accidents under the influence of alcohol or drugs are not insurable
- Passed the red traffic light
- Ignore the stop sign
- Don’t shift into gear on a downhill road
- Operate navigation while driving
- Pick up cell phone while driving
- Telephoning without a hands-free device
- Leave the ignition key in the ignition
- Permanent storage of the vehicle documents in the car
- Leave valuables in the open convertible
- Inability to drive due to medication, drugs, alcohol
Gross negligence in the fine print
If you already have comprehensive insurance or want to take out one, you should check the fine print. Because it says whether gross negligence is excluded from the insurance benefits. Even partially comprehensive insurance can opt out in the event of gross negligence and refuse to provide benefits. In most cases, the only option is to go to a lawyer, and experience has shown that, in the best case, only part of the costs are reimbursed:
- Motor vehicle comprehensive insurance can reject liability in whole or in part
- Although motor vehicle liability insurance pays out the injured third party, it can take up to 5,000 euros in recourse from the polluter.
What is gross negligence?
Anyone who acts without care and not in the way that should be obvious to everyone is acting with gross negligence. This was announced by the Federal Court of Justice with the judgment Az. IV ZR 173/01 of January 29, 2003.
The motor vehicle insurance concludes that the policyholder must have acted very carelessly or even irresponsibly.
The way out – insurance against gross negligence
Some fully comprehensive insurance policies cover gross negligence and also pay if there is a crash when you run a red light. But be careful: These additional insurance policies for comprehensive insurance do not pay out either if the accident was caused by alcohol or drug consumption. This can also include medication – for example, if it restricts the ability to drive.
However, many comprehensive insurance contracts already cover gross negligence. The additional protection should be included in a new car insurance contract without a significant price difference. Because there is no real price reduction for the missing protection and if there is, it is at best 2 percent. You should definitely check your old comprehensive insurance contracts for the small print on gross negligence: If it is not included or if a “waiver of objection due to gross negligence” was signed at the time, it is worth switching to a new comprehensive insurance policy.
Key is in – no power
Anyone who leaves the ignition key in the ignition need not complain about the stolen vehicle: there is no replacement. Comprehensive insurance does not pay out if the car is stolen, even if gross negligence has not been ruled out in the insurance contract.
Who pays what in the event of gross negligence?
If you are at fault in an accident, your liability insurance will pay for the damage caused to those involved in the accident. You have to pay for the damage to your own vehicle yourself. If the person who caused the accident has comprehensive insurance for his vehicle, the insurance company will also pay compensation for these repairs.
The situation is different in the case of gross negligence. In this case, the insurance companies reserve the option of reducing or refusing the insurance benefit. With regard to gross negligence, § 81 paragraph 2 of the Insurance Contract Act (VVG) states: If an insured event is caused by gross negligence, the insurer can reduce its benefits proportionately. The more serious the gross negligence, the less the insurance company has to pay.
If, for example, a vehicle was damaged while intoxicated, the motor vehicle liability insurance pays for the damage caused by the injured party, but can demand reimbursement of the payment from the intoxicated person who caused the damage. If the driver has taken out fully comprehensive insurance for his vehicle in addition to motor vehicle liability, this does not have to be paid. Driving under the influence of alcohol is gross negligence. Accordingly, the comprehensive insurance will refuse to accept the damage incurred in whole or in part.
Slightly or grossly negligent – where is the proof?
The German Civil Code (BGB) distinguishes between slight and gross negligence. Negligence is involved in almost all accidents or vehicle damage. Therefore, only gross negligence is important in motor vehicle insurance. If the insurance company invokes gross negligence on the part of its policyholder, it may refuse to pay. But first she has to prove that the driver acted with gross negligence and not with slight negligence. In the case of comprehensive insurance contracts, the benefit can be excluded in the event of grossly negligent action – or at least lead to a reduction in the amount of compensation. Incidentally, gross negligence does not only apply to fully comprehensive motor vehicle insurance. Insurance benefits are also excluded from many other types of insurance under civil law.
Drink & Drive – gross negligence
Anyone who causes damage to the vehicle while under the influence of drugs or alcohol is generally acting with gross negligence. Even insurance companies that pay for gross negligence exclude benefits in this case.
Duty of Care – Acting with prudence, caution and foresight
In the case of motor vehicle insurance, the foreseeability and avoidability of the damage play an important role when assessing gross negligence. However, the legislature cannot go into every individual case. Therefore, it is usually only clarified in court whether it is a question of gross negligence or not. The insurance company has to prove this and thus also pays for the costs of the procedure. In general, disregarding the necessary care to an exceptionally high degree applies to proof of gross negligence. Anyone who breaches the duty of care to a lesser degree has acted “simply” or “slightly” negligently. The damage caused by carelessness must be covered by the insurance – this is referred to as “liability”.
Gross negligence resulting in death
If a person involved in a serious accident is fatally injured, there are even criminal consequences. Section 15 of the Criminal Code (StGB) admits that a penalty can only be expected if the negligent action is already subject to a penalty by law. Such negligent behavior is, for example, driving under the influence of alcohol or using the phone while driving – both are already prohibited by law. If there was an accident resulting in death while telephoning, a conviction under criminal law must also be expected.
Medication and gross negligence
Medications can also lead to the loss of insurance benefits. If the instruction leaflet states that they can impair the driving of machines or vehicles, there is a risk of loss of insurance due to gross negligence.
Gross negligence on the road – the insurance does not pay
If the motor vehicle comprehensive insurance claims gross negligence and refuses to pay, you still do not have to be left with the damage. The insurance company must prove that gross negligence was actually involved. The insured person should not accept a flat-rate reduction in insurance benefits. If the insurance company refuses to cover the full damage, an objection can be filed. Then the judges decide whether it was gross negligence or not. A blanket assessment is not possible, because each case is treated individually. What appears at first glance to be gross negligence can be put into perspective by what is known as momentary failure: then not even crossing the red traffic light has to constitute gross negligence. For example, if the children were arguing in the back seat and the driver was distracted, this does not automatically mean gross negligence (BGH, Az IV ZR 173/01).
What do the courts say? – further judgments on gross negligence
- Anyone who causes an accident resulting in death while drunk and at high speed must expect a prison sentence without probation (OLG Hamm, file number 3 RVs 55/14).
- Parking the car on a sloping road without a gear is grossly negligent. Pulling on the handbrake is not enough there. (OVG Lüneburg, file number 5 LA 50/12)
- Operating the navigation device while driving is grossly negligent (LG Potsdam, file number 6 O 32/09).
