Includes life expectancy of accidental death

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Claims settlement Personal injury

Claims for damages by third parties in the event of death in an accident

If people are killed in accidents, the question of the obligation to pay compensation often arises after the first mourning. Once it has basically been clarified who is responsible for what percentage of the damaging event, the relatives often face the difficult question of which items are to be reimbursed by the damaging party as part of the obligation to pay compensation.

Even if it is known what can be required of the other party involved in the accident or his / her liability insurance, the survivors' claims often fail because of the evidence required in the event of a dispute. Claims are lost because it is human nature that memories fade and evidence perish.

To counteract this, we would like to provide you with further information and explanations on the following topics:

  1. Survivors' benefit, Section 844 (3) of the German Civil Code
  2. Claims for pain and suffering by a dead person
  3. Damage to health due to shock in the relatives
  4. Maintenance claims from relatives
  5. Reimbursement of funeral expenses

1. Do relatives of a victim have a right to compensation for suffering and grief?

In 2017, the legislator introduced Section 844 (3) of the German Civil Code (BGB). Until then, there was no entitlement from the bereaved because of the felt grief and suffering after the death of someone close to them.

If the injury that led to the death (not the result of the death itself) occurred after July 22nd, 2017 (cf. EGBGB 229 § 43), the surviving dependents are entitled to a payment of their own if they are related to the victim had a special personal closeness. As evidenced by the reasons for the law, the person who causes the death of a person should pay the bereaved adequate compensation in money.

The claim is due to all those who had a special relationship with the victim. This closeness is assumed by law in the case of parents and children or spouses or partners. The close relationship can also have existed with all other persons, it only needs to be proven that it existed (illegitimate cohabitation, three-generation house, blended families, etc.).

The amount of the payment is based on the personally felt suffering and the grief suffered. As a rule, amounts between € 5,000 and € 25,000 are awarded in the judgments against the perpetrator or his liability insurance.

2. Does a deceased person have a right to compensation for pain and suffering?

German law does not have any norms that would grant compensation for death suffered or a reduction in life expectancy. A compensation for pain and suffering pension is not even to be increased if the life expectancy is shortened (cf. OLG Hamm judgment of 11.09.2002 file number 9 W 7/02). This is even a reason for a reduction in the compensation for pain and suffering. The immediate death of the injured person excludes compensation for pain and suffering.

If the injured person dies after the accident, the injured party may be entitled to compensation for the pain suffered up to his death, which will be passed on to the heirs. There must be impairments that can be demarcated from death as such. If the accident is followed by unconsciousness, which then leads to death, the case law also assumes that there is no or only a very low claim for compensation for pain and suffering.

Otherwise, the same assessment factors apply as for the compensation for pain and suffering of a survivor of the accident.

In this area, too, the compensation claims to be paid in Germany are low. A critically injured accident victim or his heirs who was approachable and who was aware of his condition received only € 15,000 after death after 32 days in the intensive care unit. In the event of death after an uninterrupted coma of 8 days, compensation for pain and suffering of € 5,000 was awarded.

3. Can relatives claim their own compensation for pain and suffering if they suffer a shock?

In addition to the entitlement to survivors' benefits, people close to the person killed can also suffer so-called "shock damage", which the injuring party has to compensate under certain conditions. This is not a third party damage, but an original claim of the relative.

In this context, witnessing the accident, seeing the consequences of the accident or news of the accident may be liable to pay compensation.

In order to be eligible for compensation, the shock must not only be a normal reaction to the accidental death of the relative, but also go beyond it. If the injured party develops psychosis, neurosis or depression as a result of the news of the death of the relative, the limit to normal grief has been exceeded. The reaction must also be understandable (e.g. witnessing death). An objective reaction is also to be taken into account. Subjective propensity to damage and particular sensitivity are not taken into account.

The jurisprudence assigns the simple news of the death of the close relative to the general risk of life. According to the case law, one must be able to deal with something like this, since the intention of the legislature to not award a replacement for the death of the relative should not be circumvented by the fact that the reaction normally followed by the news of the death triggers a claim.

4. What maintenance claims do the surviving dependents have in the event of accidental death?

You are obliged to support your relatives. If this maintenance obligation ceases to exist due to death, the person who caused the death is obliged to reimburse the maintenance. A distinction must be made here between cash maintenance damage and care maintenance damage.

Cash maintenance loss is the amount of money that the deceased would have used to support the bereaved. Depending on the circumstances, the cash maintenance damage can be calculated specifically or fictitiously.

The loss of personal work for the family and the household is understood under care damage. The term “maintenance in kind” is also often used as a synonym. This damage can also be calculated fictitiously or specifically.

The following topics will be discussed in more detail below:

  1. Eligibility requirements
  2. Cash maintenance loss in the event of the death of the maintenance debtor
  3. Care maintenance damage

1) What requirements must be met for the surviving dependents to be entitled to maintenance?

In principle, a relationship must already have existed at the time of the accident, on the basis of which the person killed is obliged to provide maintenance to a third party. Entitled to maintenance in the event of a person's death can be their children, the husband or wife or the parents. By the provision of § 844 Abs. 2 BGB the injuring party is obliged to fulfill this maintenance claim instead of the killed person for the future. The maintenance owed by law is to be reimbursed. All legally owed services are to be replaced in cash.

A life partner under the Life Partnership Act (LPartG) is also one of the dependent persons. A life partner within the framework of a illegitimate partnership is not entitled to compensation. Likewise, a “stepchild”, for example, who was only actually supported by the person who was killed, is also not entitled to maintenance.

In terms of time, the survivors' entitlement to maintenance is limited to the actual maintenance obligation of the deceased. In the event of separation and divorce from spouses, nothing other than maintenance law applies in terms of damage law. As long as the deceased would have been obliged to provide maintenance, the perpetrator has to pay for the maintenance. However, here too, if necessary, the fictitious basis for the future is whether the deceased could have successfully brought an amendment action at some point or whether the maintenance claim (e.g. care maintenance is no longer due due to the age of the child) would have ended.

Particularly in the constellation that the victim is productive and the parents are in need, attention must be paid to the short limitation period of 3 years. If there are any indications, an action for declaratory judgment can and must therefore be brought that the child is obliged to support its parents and that the perpetrator has to meet these claims. This is always the case, for example, when it becomes apparent that the parents are in need of care.

2) What is the breakdown of the cash maintenance loss in the event of a fatal traffic accident?

When a person dies, their income is lost. With this income he contributes to the maintenance of his family. The specific shape of the individual family and the joint life planning must also be taken into account. It is only used to provide support for the family. The need for the person killed does not apply and cannot be replaced.

In the case of separation and divorce, the calculation is relatively simple. If the casualty already pays cash maintenance based on a judgment or agreement, this payment must continue to be made by the injuring party as long as the maintenance claim exists. In both directions, it should be remembered that maintenance amounts do not stay the same. In principle, as with injuries, it can also be assumed that an increase in income from the killing is to be assumed and that the killing would not have "stood still" for the rest of his life.

In the case of “intact” families, the calculation is much more difficult. Basically, the maintenance needs of the surviving dependents (specific or lump sum) are to be determined here. Tax losses and a pension loss must be added to this.

Tip from the specialist lawyer: In particular, the loss of pension benefits for young families should not be underestimated. In the case of “single-income marriages” in particular, the person who goes to work would also earn the pension entitlements for the spouse. Pension entitlements and thus the compensation payment are very high, especially for young couples.

The so-called benefit equalization and any equity deductions that may have to be made and the dependent's own reasonable income must be deducted.

When calculating a severance payment or a pension, the hypothetical life expectancy of the injured party must then be taken into account as an additional time limit.

Tip from the specialist lawyer: The maintenance obligation, e.g. according to the Düsseldorf table, represents the minimum maintenance. Such a calculation can still be used if the family's financial circumstances are tight. As a rule, the specific need to be replaced is far above the need owed under maintenance law.

3) How is the care damage calculated in the event of an accidental death?

Under maintenance law, a person obliged to provide maintenance not only owes the provision of cash, but also, if there is a common household, to help in the household and, if necessary, to look after the children. If this cooperation is canceled due to the killing of the person obliged to provide maintenance in an accident, the specific value of these activities must also be reimbursed in accordance with Section 844 (2) BGB. A compensation pension is to be paid to compensate for the material damage caused by care, which is not subject to income tax liability according to § 22 No. 1 EStG.

Here, too, the specific cut must be taken into account. The type and scope as well as the division of the work depends on the family agreements. However, certain limits must be taken into account due to the appropriateness of the services and their necessity. Age, health and other family and professional obligations of the maintenance debtor must be taken into account.

The easiest way to calculate and compensate is with a specific calculation. If an auxiliary worker is employed due to the discontinuation of the work of the person obliged to provide maintenance, the gross expenses incurred by the necessary employment of the auxiliary worker must be reimbursed. So not only the salary of the assistant but also the employer's contribution to social security have to be replaced. The qualification and quality as well as the working hours of the employed person must be comparable with the loss. There is an advantage to be compensated if, for example, a housekeeper is employed full-time for the mother who was killed.

But the care damage is often capitalized and compensated by a one-off payment. The obligation to pay compensation is irrespective of whether a replacement worker is actually employed for the loss of work performed by the person killed or the loss is compensated for in some other way. The damage is to be estimated here. For example, special tables can be used for the estimation. We have already given a few explanations here in connection with the damage to the housekeeping of injured persons. To avoid repetition, we refer to our comments on injured persons.

Roughly speaking, the first thing to do is to determine what working time has actually been lost for the family as a result of the killing of the person liable for maintenance.

Tip from the specialist lawyer: All tables and based on them the case law assume that every person in the household helps. According to the relevant tables, single wage earners and children also perform considerable work in the household, which must be compensated. There is thus a lifelong entitlement which, when capitalized, results in a high severance payment.

Then the work performance is to be grouped in the lost quality. The classification is carried out in the same way as the Federal Employees' Collective Agreement (BAT). The resulting value is distributed among the individual dependents, as their entitlement ends with their own death or when they come of age. The calculation must therefore be adjusted and re-carried out depending on the stage of life or taken into account accordingly in the severance payment.

5. Are an accident victim's funeral expenses recoverable damage?

If a person dies in an accident, the person who caused the accident or their liability insurance according to § 844 Paragraph 1 BGB has to reimburse the costs of the funeral.

Funeral costs include:

  • Cost of building a single grave site
  • Initial planting
  • the funeral service (church service etc.) and the funeral act (pallbearers, excavation grave site etc.) or costs of cremation
  • Flower arrangements for the memorial service and funeral
  • Obituary notice and thanks

Funeral expenses do not include:

  • Maintenance expenses for the grave site (= care and maintenance of the grave site)
  • Cost of building a multi-person grave

The claim belongs to the person who by law has to pay for the funeral costs. These are usually the heirs. The funeral costs may have to be reduced by the contributory negligence of the deceased in the accident. The amount of the funeral costs is again limited by the previously cultivated lifestyle and the economic circumstances of the injured party.

Tip from the specialist lawyer: Liability insurers usually pay a flat rate of € 5,000 for funeral costs. With a little argument on the standard of living and the customs of the family, a flat-rate payment of € 7,500 is also possible, so that at least one does not have to argue with the opposing insurance company about the appropriateness of the funeral and the associated costs.