Expert fees reduced: Who pays after an accident?

The case: A dispute over EUR 20 in an expert’s invoice

An expert firm claimed a further EUR 20 from the other party’s liability insurer for coronavirus protective measures. The insurer had paid the remaining expert fees. The accident victim had assigned the reimbursement claim to the firm, so the expert sued in its own name. The claim was unsuccessful before both the local court and the regional court. The Federal Court of Justice set aside the appeal judgment and remitted the case (paragraphs 1 to 4 and 33).

The judgment is therefore not a general direction to pay every expert invoice. It explains who bears the risk of billing problems that are difficult to identify and when a claimant can rely on that allocation. In the case decided, the insurer’s full liability for the accident was undisputed. Liability for your accident must be assessed separately. This article concerns claims against the other party, not settlement under your own comprehensive motor insurance.

What do the expert-risk rules protect?

An expert report that is necessary and appropriate for establishing the damage may form part of the recoverable accident loss. Under section 249 of the German Civil Code, the relevant costs are those required to remedy the damage. The injured person may generally choose a qualified expert and need not first search the entire market for the cheapest offer (paragraphs 7 to 9).

Unnecessary work or excessive charges may remain hidden from a layperson. Where such additional costs fall within the expert’s control and the injured person was not at fault in selecting or supervising the expert, they may nevertheless be covered by the damages claim. In return, the insurer may require assignment of the corresponding claims against the expert and pursue the matter with that expert (paragraphs 11 to 14).

A reasonable plausibility check remains necessary. Protection may be lost if the initial offer is recognisably far too expensive, the invoice recognisably departs from the fee agreement or incidental charges are obviously excessive. The invoice alone is therefore not a blank cheque. In those circumstances, the costs actually required are decisive (paragraph 15).

Invoice still unpaid: Who should receive the insurer’s payment?

You do not have to pay the invoice out of your own pocket first to rely on the expert-risk rules. For the unpaid portion, however, the direction of the payment claim matters: You request payment directly to the expert, concurrently against assignment of any claims against the expert relating specifically to that risk. You remain the holder of the damages claim; the expert is the payment recipient (paragraphs 16 to 19).

If you request payment to yourself despite the invoice remaining unpaid, you bear the risk of having to substantiate and, if necessary, prove that the invoiced work was actually performed and that the costs were necessary. The favourable allocation of risk cannot simply be combined with any payment request (paragraph 20).

Two assignments with different consequences

An assignment changes the creditor of a claim under section 398 of the German Civil Code. It is therefore worth checking the engagement form carefully: If you transferred your damages claim against the insurer to the expert, that expert cannot rely on the expert-risk rules for its own benefit as the new claimant. The expert must prove that the invoiced measures were carried out and the costs were necessary (paragraphs 22 to 26).

That is different from assigning possible claims against the expert to the insurer. This enables recourse by the insurer where the injured person seeks protected payment to the expert. Our practical recommendation: Before sending another letter, check who currently holds the claim and which assignment has already been signed. Simply directing payment to the expert does not replace that assessment.

Which documents help challenge a reduction?

A reduction by the insurer does not, by itself, determine what you owe the expert under your engagement. Do not therefore ignore payment demands. Our suggestion: First consider the contract with the expert separately from the damages claim against the other party. This helps identify the disputed items and the appropriate payment request for your case.

• Gather the report, invoice and fee agreement.
• Keep the insurer’s reduction letter and its reasons.
• Record paid and outstanding amounts, with proof of payment.
• Provide all assignments and payment instructions.
• Have liability, recognisable pricing discrepancies and the correct payment recipient assessed.