Can remove CM government employees

Young government employee as a clerk at the LANDESARBEITSICHT DÜSSELDORF LABOR COURT ON NAME OF THE PEOPLE JUDGMENT In the legal dispute

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1 Business number: 12 Sa 1345/02 2 Ca 524/02 ArbG Solingen of W. Versicherung AG Jung Government employee as clerk of the branch LANDESARBEITSGERICHT DÜSSELDORF IN THE NAME OF THE PEOPLE JUDGMENT In the legal dispute authorized representative: Attorney G. Announced on: Plaintiff and appellant - against the Mr. BS - Defendant and defendant - Proprietor: Attorneys E. & P. ​​asked the 12th Chamber of the State Labor Court of Düsseldorf to the oral hearing by the presiding judge at the State Labor Court Dr. Plüm as chairman and the honorary judge Dr. Aprath and the honorary judge Alsdorf recognized for R e c h t: Amending the judgment of the Labor Court of Solingen from, the defendant is sentenced to pay the plaintiff 1,390.80 plus 4% interest since then. The defendant bears the costs of the legal dispute. Excluded from this are the additional costs incurred by the appeal to the Leverkusen district court, which the plaintiff has to bear. The revision is not permitted

2 - 2 - T a t b e s t a n d: The plaintiff is taking recourse against the defendant, who was employed as a taxi driver by her policyholder D., because of a liability claim regulated by her. The defendant caused the damage in a traffic accident. Whether he then escaped after an accident i.s.v. 142 of the Criminal Code and violated the obligation to provide information to him as a driver in the motor vehicle liability insurance is in dispute between the parties. The defendant's employer had liability insurance with the plaintiff as the vehicle owner with a taxi. According to the General Conditions for Motor Insurance (AKB) that apply to the insurance contract, the driver is one of the co-insured persons in liability insurance (10 para. 2 lit. c AKB). 3 Para. 3 AKB regulates the insurer's freedom to provide benefits to co-insured persons and his right of recourse against these persons in the event of a breach of contractual obligations. 7 AKB behaves about the obligations in the insured event, in particular about the obligation of the policyholder to do everything that can help to clarify the facts and to reduce the damage (7 I para. 2). 7 V determines literally: (1) If one of these obligations is intentionally or grossly negligently breached in motor vehicle liability insurance, the insurer is free to pay the policyholder in the limits specified in the paragraph. In the event of a grossly negligent breach, the insurer remains obliged to provide benefits insofar as the breach neither had an impact on the determination of the insured event nor on the determination or the scope of the service incumbent on the insurer

3 - 3 - (2) The insurer's freedom to provide benefits is limited to a maximum amount of DM 5,000.00. In the event of a deliberate breach of the duty to provide information or damage mitigation (e.g. unauthorized removal from the scene of the accident ...), if this is particularly serious, the insurer's exemption from performance extends to a maximum amount of DM. In the late afternoon of the defendant picked up a passenger at the tennis halls v.-d.-str., L. When he turned around or backed up in a taxi in the parking lot of the tennis halls, he damaged the K car parked there. The defendant drove on and dropped the passenger off at the Steffi s Brauhaus restaurant, which is less than 1 km away. The passenger informed the host of the tennis halls by telephone that the defendant had damaged a car in the parking lot. The innkeeper then called the police operations control center, which in turn ordered the Leo 11/27 vehicle to the tennis halls. After their arrival in the parking lot, the police officers from Leo 11/27 began investigating the course of the accident. The taxi control center found that the taxi driver was the defendant. The defendant was informed, made aware of the accident and appeared a short time later at the scene of the accident. There were criminal proceedings against the defendant for fleeing a traffic accident. In the main hearing, the Leverkusen District Court discontinued the criminal proceedings in accordance with 153a StVO against payment of a fine of DM 1,000.00. The plaintiff settled the liability damage to the injured party K. in the amount of DM 2,720.19 (= EUR 1,390.80). In a letter dated, she asked the defendant to reimburse this amount in vain. The defendant filed an objection against the payment order sent on. The Leverkusen District Court decided by order of - 4 -

4 declared to be factually incompetent and referred the legal dispute to the Solingen Labor Court at the plaintiff's request. By judgment of, the labor court dismissed the action and stated that the defendant had indeed left the scene of the accident and thus violated his obligations; However, his behavior did not harm or endanger the interests of the plaintiff as an insurer, because the course of the accident and its consequences could have been determined on the basis of the investigations by the police. The plaintiff is attacking the judgment of the labor court with the formal and timely filed and justified appeal. She believes that the defendant jeopardized her interest in investigating the damage by deliberately removing it from the scene of the accident. She requests that the judgment of the Solingen Labor Court be changed and that the defendant be sentenced to pay the plaintiffs 1,390.80 plus 4% interest since then. The defendant contends that the appeal should be rejected. During the trial, he stated in writing that, in view of the darkness and pouring rain, he did not notice that K.'s car was damaged during the turning maneuver. He said he had already started the return trip from Steffi's brewery to the tennis hall when the taxi control center called him with a reference to the accident. At the scene of the accident - 5 -

5 - 5 - the police have already determined his involvement in the accident and also the extent of the damage. In the hearing before the Chamber, the defendant stated that although he immediately noticed the damage (anti-chopping) to the car of the K., he first drove the passenger to Steffi's brewery because of his jostling. Because the passenger had stopped by another restaurant, the transport time was a total of just under 5 minutes (based on a pure journey time of 2-3 minutes). Then he, the defendant, drove back to the scene of the accident on his own initiative. On the way back, the news of the accident reached him through the switchboard. For details of the state of affairs and the dispute, reference is made to the contents of the file. Reasons for the decision: I. According to 65 ArbGG, 17a GVG, the appellate court is no longer authorized to review the legal process after the legal dispute has been initiated by a binding decision of the local court (48 para. 1 ArbGG, 17a para. 2 sentence 3 GVG) the labor court was referred and the labor court decided under all relevant aspects (see BAG, decision of, 5 AS 8/98, AP No. 38 to 17a GVG, BGH, decision of, AP No. 46 to 17a GVG). According to this, it is irrelevant that the local court, as the court of permissible legal recourse, should have decided on the claimant's recourse. It should be noted that the plaintiff wrongly wants to claim against the defendant (also) from transferred law (67 para. 1 VVG, 15 para. 2 AKB): Your policyholder D. is not entitled to any claim for damages against the defendant. The defendant did not cause him any harm by accident or by escaping from an accident. With the satisfaction of the injured third party by the plaintiff, no possible employment contract-based - 6 -

6 - 6 - Override the policyholder's right to exemption against the defendant (BGH, judgment of, VersR 1988, 1062, to II 3 of the reasons). II. The action is successful on the merits. Pursuant to 426 (2) sentence 1 BGB, 3 no. 9 PflVG, the defendant is obliged to compensate the claimant for the liability damage it has settled. The damage amount of 1,390.80 euros is undisputed. The defendant has to pay interest on his money debt at 4% p.a., 288 para. 1, 284 para. 1 (a.f.) BGB. 1. As the insurer satisfies the injured party's direct claim according to 3 No. 1 PflVG, claims for damages of the injured party against the vehicle owner (7 StVG) and against the driver (823 para. 1 BGB, 18 StVG) are transferred to the insurer. According to 3 No. 2 PflVG, the insurer and the policyholder are jointly and severally liable to the injured third party. In the internal relationship, the insurer is solely liable insofar as he is obliged under the insurance contract (3 No. 9 sentence 1 PflVG); if the insurer is not obliged to provide benefits, the policyholder is solely liable in relation to the insurer (3 No. 9 sentence 2 PflVG). 3 No. 9 PflVG applies mutatis mutandis to the relationship between the insurer and the driver co-insured according to 10 para. 2 lit. c AKB (BGH, judgment of, VersR 1988, 1062, to II 3). If the insurer compensates the third party because it is externally liable in addition to the vehicle owner and the driver and is internally exempt from payment to the owner or the driver, he can against one and / or the other in accordance with 254 BGB, namely take recourse against everyone in the amount of the quota (BGH, aao). If the exemption from performance is based on a breach of duty committed by the driver and for which the policyholder is not responsible i. S. v. 7 I para. 2 sentence 3, V para. 1 or para. 2 AKB, in particular on an escape from a traffic accident, the right of recourse is directed against the driver (see Stiefel / Hofmann, AKB, 16th ed., 3 Rz. 34 et seq ., 108 f.), - 7 -

7 - 7 - because initially only the driver and not the policyholder found out about the occurrence of the insured event and so he is subject to disclosure and reporting obligations. The driver is not immediately aware of the liability insurance contract concluded between the insurer and the owner with the AKB on which it is based. Therefore, the obligations to inform and the legal consequences of their violation set out in 7 AKB are not expressly agreed with him. Nonetheless, in this regard, especially in the event of an accident, he is included in the (overall) liability under insurance law. Merely leaving the scene of the accident only, but also always, constitutes a violation of the obligation to provide information in comprehensive insurance and motor vehicle liability insurance if it fulfills the objective and subjective criteria of 142 StGB ... Even without an express agreement, it can be assumed that the contractual duty to provide information includes the criminally sanctioned legal duty ... Because this is an elementary, general duty known to every policyholder and driver. The fact that he can jeopardize his claim to benefits against his insurer with their injury is imposed on him because the driver knows that in the event of a claim, his insurer is always interested in the complete clarification of the course of the accident and the cause of the accident, which he and the Leaving the scene of the accident lastingly impaired (BGH, judgment of, VersR 2000, 222, re II 1). The insurer's interest in clarification and examination also exists in the case of a clear liability situation, in motor vehicle liability insurance, for example, because of its possible freedom to provide benefits according to 2 (1) b and c AKB (status). Because it is a matter of his obligation to perform, it is also his responsibility to examine the liability situation and to request the cooperation of the policyholder and the driver in clearing up the accident. The policyholder or driver who willfully flee an accident is not entitled to anticipate the result of this check by subsequently submitting a complaint about a clear liability situation and thus the insurer the individual case-related evidence of causality between the breach of the obligation to provide information and the actual findings that he makes with regard to his obligation to provide benefits

8 - 8 - had to suspend (see BGH, op. Cit., Re II 2). In this respect, 7 AKB also differentiates according to whether the breach of the obligation was grossly negligent and had no influence on the insurer's findings (7 V para. 1 sentence 2 AKB) or whether the breach was committed intentionally (7 V para. 2 p. 2 AKB). 2. The principles of limitation of employee liability developed by the BAG case law in the event of damage caused by the company do not apply in favor of the employee who has fled an accident (see BAG, judgment of, 8 AZR 348/01, AP No. 122 to 611 BGB Employee Liability , to II 2, 3). However, this finding cannot be derived from the knowledge that, because of the exemption from liability of the co-insured driver according to 1 PflVG, there is no need for protection of the employee (BGH, judgment of, VersR 1992, 437 = EzA No. 25 to 611 BGB Dangerous work, re II 2 c; see BGH, judgment of, VersR 1992, 485, re 4 a). Because the duty of recourse according to 426 BGB, 3 No. 9 PflVG creates liability for the liability damage caused to the extent of 7 V AKB. As a rule, however, the principles of limiting employee liability fail because the employee acts deliberately in escaping from an accident under 142 StGB and consciously jeopardizes the protection of motor vehicle liability insurance. 3. The defendant realized the objective and subjective facts of the 142 StGB through his behavior. He did not uphold his original claim that he had not noticed the accident. On the contrary, at the hearing before the Chamber he admitted that he had noticed that he was kicking the other car; he then rolled down his side window and saw the scratch marks on the car. After that, he should not have left the scene of the accident. He also does not excuse the possible jostling of the passenger who wanted to be brought to the nearby restaurant Steffi's brewery. The defendant should and could have refused the trip, especially since it was easy for him to call a replacement taxi by radio

9 - 9 - Incidentally, the defendant did not return to the scene of the accident immediately and voluntarily. According to his assertion, however, he only wants to leave the scene of the accident for a short time and to have immediately voluntarily set out to return from Steffi's brewery when the information about the accident reached him via Leo 11/27 and the taxi center. This version cannot be correct. Because the travel time between Steffi's brewery and the tennis halls was 2 to 3 minutes. In this short time, the following events could not take place: The passenger who was dropped off at Steffi's Brauhaus called the tennis hall either from the restaurant or by mobile phone, whereby it should be assumed in favor of the defendant that the passenger was familiar with the telephone number. He informed the host of the tennis halls of the accident he had witnessed in the parking lot, the damage to a car parked there and the actions of the defendant. Then the host of the tennis halls passed this information on to the police operations control center L. The operations control center now instructed the crew of Leo 11/27 to record a traffic accident or a traffic accident escape at the tennis halls. After the drive to the scene of the accident, according to the traffic accident report (p. 62 f. Of the court file), not disputed by the defendant (minutes of the labor court dated), the police officers at the host of the tennis halls were informed of the passenger's phone call in detail then with the injured K. about the damage and photographed them. Via the taxi control center they identified the defendant, who was informed of the facts and appeared a short time later at the scene of the accident. For the Chamber it is certain that - even under the most favorable time assumptions of the defendant - at least 15 to 20 minutes had passed between the dropping off of the passenger at the Steffi s Brauhaus restaurant and notification by the taxi control center as well as the return to the scene of the accident. Therefore, it cannot have been the case that the defendant received the notification from the taxi control center prompted by the Leo 11/27 emergency vehicle at the scene of the accident on the immediately commenced return journey. Rather, he was not

10 on the way back to the tennis halls, but at a different location. Even if he was able to appear at the scene of the accident a short time later from this place, his long absence and appearance only after notification of the taxi control center shows that he did not want to return to the scene of the accident on his own, but had hoped that his cause of the accident remained undetected and was not reported by the passenger as the only accident witness. The behavior of the defendant therefore represents a fully implemented (final) accident escape and implies a serious breach of duty that endangers the clarification interests of the plaintiff (see BGH, judgments from, VersR 1972, 339 and 341). 4. Since the defendant acted deliberately, he cannot object that the liability situation was clear and that his escape from the accident did not delay, endanger or impair the police's findings on the course, cause and consequences of the accident. There are no reasons for joint liability of the policyholder D. according to 254 BGB. Accordingly, the defendant alone has to compensate the plaintiff for the liability damage. III. The cost decision is based on 91 para. 1 ZPO, 17b para. 2 sentence 2 GVG. There is no legal remedy against this judgment. A legal reason i. S. v. 72 para. 2 ArbGG for the revision approval is not apparent.The determination of the escape from traffic accidents according to 142 StGB is a question of the individual case (see OLG Saarbrücken, judgment of, ZfSch 2001, 69, LG Marburg, judgment of, Schaden-Praxis 2001, 278). Because of the non-admission complaint and its details, the plaintiff is referred to 72 a ArbGG. Dr. Plüm Dr. Aprath Alsdorf