Accident insurer demands Austrian driver’s license: rightly so?
March 28, 2022 – The Supreme Court: A driving license clause that requires authorization under Austrian law to drive a motor vehicle is neither non-transparent nor surprising or unusual – even if other insurers do not refer to the Austrian legal situation.
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- Image: Tingey Injury Law Firm
A native Iranian living in Austria died in an accident with a small motorcycle in his homeland in 2018. The specific course of the accident cannot be determined, according to a supreme court decision.
The deceased has a valid Austrian driver’s license for vehicle class B, but not for vehicle class A1 (motorcycle with a maximum displacement of 125 cm³ and a maximum output of 11 KW).
The “Code 111”, which allows driving a small motorcycle without taking an additional test, was also not entered on his driver’s license. He had also not completed any practical training in driving class A1 motor vehicles.
Austrian driver’s license required
The deceased has an accident insurance contract based on the General Conditions for Accident Protection (AUVB 2016) of G. AG.
In this war it was agreed that the insured driver of a motor vehicle must have the respective driving license under Austrian law.
In the event that this obligation is violated, at least through slight negligence, the insurer should be released from liability to the extent that this violation had an impact on the amount of the insurance benefit or the occurrence of the insured event.
Lower courts dismiss the lawsuit
The widow demands a payment of more than 140,000 euros from the insurer. She argues that her husband had a valid driver’s license in the country where the accident occurred. There is therefore no breach of duty.
In addition, the clause deviates from the insurance conditions of other insurers. They are unusual and violate § 864a ABGB. They are hidden in the insurance conditions, grossly disadvantageous and non-transparent.
The trial and appeal court dismissed the lawsuit. It is neither unusual nor grossly disadvantageous that an Austrian accident insurer bases its voluntary accident insurance on a motor vehicle entitlement under Austrian law.
Thereupon die widow revision at highest court a. She also turned to the ORF public prosecutor; VersicherungsJournal reported on November 24, 2021.
Surprising, grossly disadvantageous, unclear?
In its legal assessment, the OGH emphasizes that even an inexperienced contractual partner cannot object to being surprised by a contractual provision if it is typical of the relevant legal transaction.
“Unusualness” is to be understood objectively; focusing on subjective expectations of a part of the contract is excluded.
According to the OGH, gross disadvantage already exists in insurance contract law if a clause to be examined brings about a restriction compared to the standard that the policyholder can expect from an insurance of this type.
A clause is invalid according to § 6 paragraph 1 3 KSchG when it is unclear or incomprehensible. This is to prevent consumers from being prevented from enforcing their rights due to an inaccurate or unclear picture of their contractual position.
Risk exclusions must be expected
In the present case, the insurance conditions would have stipulated that the insured person, as the driver of a motor vehicle, must have the relevant motor vehicle authorization under Austrian law that is required to drive this motor vehicle.
Such a condition, referred to as a “driver’s license clause”, is to be qualified as an obligation according to the case law of the Supreme Court; it is aimed at not exposing the insurer to the higher risk of inexperienced and untrained drivers.
A policyholder should be expected to know that an insurance contract is based on certain limiting norms. In principle, the average policyholder has to reckon with risk exclusions and limitations.
In this respect, the conditions in question are neither unusual nor grossly disadvantageous.
Austrian law: not unusual
Likewise, it is neither unusual nor unexpected that an insurer based in Austria applies Austrian law to a policyholder living in Austria.
This is especially true when it is taken into account that motor vehicle regulations in countries outside the European Union, such as Iran, differ significantly from the national legal situation and can be difficult to determine.
The fact that other insurers do not refer to the Austrian legal situation also makes a clause not unusual.
Due to the purpose of taking into account an increased risk from inexperienced and untrained drivers, the clause also does not result in any restriction compared to the standard that the policyholder living in Austria can expect from accident insurance.
Revision remains successful
In summary, the clause is therefore neither surprising according to § 864a ABGB, nor grossly disadvantageous § 879 paragraph 1 3 ABGB still non-transparent according to § 6 Abs. 3 KSchG.
The widow’s appeal was therefore not upheld by the Supreme Court.
In its decision, the Supreme Court did not address the argument put forward in the ORF public prosecutor at the time that proceedings in Iran did not result in contributory negligence on the part of the deceased.
The decision in full
The OGH decision 7Ob184/21s of January 26, 2022 is available in full in the federal legal information system.