Driving a Hard Bargain with Traffic Law
To expand our knowledge into the personal injury sector, we decided to get in touch with Bernd Höke who is the Director of Kanzlei Voigt Rechtsanwalts GmbH. Last time we caught up with Bernd, he spoke on how he made a name for himself in the insurance industry and developments in the insurance sector. This time round, Bernd goes into more depth, touching on changes he would like to see in traffic law and the insurance sector, that would make his client’s lives a lot simpler in the long run.
What helps you to achieve optimum results for your clients, even when all other options have been exhausted?
When the usual options have been exhausted, it is essential to be very familiar with the subject of insurance law in general and personal injury law in particular. Our experience and our knowledge allow us to discuss at eye level with insurance companies to achieve an optimal result for the client.
How difficult is it to work your way through cases whereby injury is due to vehicle damages unbeknown to the owner?
The German law provides a solution to this situation. According to section 12 of the Obligatory Insurance Law (Pflichtversicherungsgesetz) the Compensation Fund (Verkehrsopferhilfe e.V.), an association for assisting accident victims, helps injured parties in its function of a Guarantee Funds in the case of accidents occurring in Germany which are caused by unidentified or even uninsured motor vehicles and even in cases in which the car was used intentionally and unlawfully as a “weapon” or where the motor vehicle insurer becomes insolvent.
However, a compensation by the Compensation Fund is subordinated. If the damage is covered by an insurance from another insurer, the claim has to be asserted with the later one. Damages regarding the vehicle are to be asserted with the hull insurance. Treatment costs are covered by health insurance and health is not compensated by the Compensation Fund.
Besides this, the Compensation Fund also serves as the compensation body in accordance with Fourth Motor Insurance Directive.
Are there any regulation changes you would support, that would make your role, and your client’s case, a lot easier?
Actually two regulations were recently discussed, which would make the client’s situation easier. One of them is a proposed reversal of the burden of proof to the detriment of insurance companies in case of a non-regulation over a certain period of time.
Especially in personal injury cases a shift in the burden of proof away from the injured party would make sense, since many injuries heal over time. A medical examination is of little use, if there is nothing or nearly nothing left to examine – simply because it healed while the insurance company waited with the regulation.
Another aspect discussed was the establishment of an ombudsman for liability insurers. The German Consumer Dispute Resolution Law (Verbraucherstreitbeilegungsgesetz) provides a complaints procedure for the insured party against insurance companies regarding claims arising from the insurance contract.
The Rules of Procedure of the Insurance Ombudsman (Verfahrensordnung des Versicherungsombudsmanns) provide a conciliation procedure. But no current regulation provides comparable possibilities for injured parties. If the insurance company does not cover the claims arising from liability, the only option left for a traffic accident victim is to go to court.
What current changes have you eagerly anticipated in regard to traffic law?
As the First Chairman of the Pan European Organisation of Personal Injury Lawyers (PEOPIL) regional group Central Europe I never get tired of standing up for surviving dependents’ benefits. It has been on top of my agenda for a long time, so I guess you can imagine how eagerly I anticipated a change regarding this issue. As you can read in my article “The Discussion on Smart Money in Germany: Inventory in Comparison” (“Die Schmerzensgelddiskussion in Deutschland: Bestandsaufnahme und Vergleich”, published in Neue Zeitschrift für Verkehrsrecht [NZV] 2014, volume 27, issue 1, pp. 1-4), Germany was one of the last European countries that did not provide any regulation regarding survivors’ benefits.
Last time we met, we were discussing a draft bill by the Federal Ministry of Justice and Consumer Protection with the title “Draft Law on Introducing an Entitlement to Survivors’ Benefits”. The bill was successful and promulgated in the Federal Law Gazette on 17 July 2017. Nowadays section 844 (3) of the German Civil Code (Bürgerliches Gesetzbuch) entitles bereaved of a person killed in a car accident to a compensation for that loss. They no longer have to you counter a heavy burden of proof regarding their ability to cope with the pain inflicted by the loss experienced and the damages to the health beyond those caused by common grief.
Are there any changes you would support regarding the insurance industry?
I have worked for a renowned insurance company for many years and left a successful and prospering career behind due to the increasing competition between insurance companies and its side effects of harder regulation and cost saving measures like stuff reduction.
Since then the market got even tougher. The competitive pressure forces the insurance companies to calculate the insurance fees lower and lower. But without sufficient insurance fees and – still being a company – with the aim to generate profit, at the end of the day there is not enough left for a proper regulation of asserted justified claims. The only way to leave this vicious circle would be sufficient insurance fees. So I would support taking away some of the competitive pressure between insurance companies for the greater good of a change towards a proper regulation process.
Is there anything else you would like to change regarding traffic law?
As the aspect of surviving dependents’ benefits showed, some issues regarding the regulation of claims arising from traffic accidents vary widely among the European countries. Due to this, the outcome of the regulation and the compensation a victim of a traffic accident receives, highly depends on the place of the accident and the law applied. I would welcome a first step towards an equal compensation of equal damages and claims.
Besides this, in the case of an accident with parties from different countries, the law provides the injured party to file their claims with a local representative of an insurance company from abroad. The injured party also has the right to sue the foreign insurance company at a local court. But once they obtain a title, there is a lack of an adequate enforcement regarding the foreign insurance company. It is up to the legislation to take this next step in cross-border liability regulation.
Bernd Matthias Höke is Director of Kanzlei Voigt Rechtsanwalts GmbH, a law firm specialised on all areas of traffic law and insurance law.
Bernd Höke is First Chairman of the Pan European Organisation of Personal Injury Lawyers (PEOPIL) regional group Central Europe and Member of the Board of the Institute of European Traffic Law (IETL) – as such he and the lawyers of Kanzlei Voigt serve as representative or communicating lawyers as well as authors of experts’ reports.
And with more than 25 years as an Attorney at Law in the field of claims management, Bernd Höke provides the expertise required to deal with most complex personal injury cases against insurance companies – especially since he used to be Head of the Claims Department of a renowned insurance company as well as manager of the General association of the German insurance industry’s (GDV) Motor Claims Commission.
With 28 subsidiaries and more than 80 attorneys throughout Germany, Kanzlei Voigt Rechtsanwalts GmbH has a decentralised area-wide structure with a central management. This allows professional advice on site combined with networked knowledge.
But some cases require special attention and concentrated expertise due to their complexity. Severe personal injury cases are handled in the headquarters in Dortmund. The firm’s expertise is also much appreciated abroad.