David Lewin, Managing Director
In a judgment handed down on October 27, 2009 (VI ZR 296/08) and subsequently published, the Federal High Court of Justice in Germany (Bundesgerichtshof, in the following, “High Court”) seized the opportunity to restate the basic principles of liability for athletic injury. Also, the High Court ruled on several interesting legal items generated by the existence or non-existence of insurance protection in this context.
Prior to the decision described above, the same Senate (Chamber) of the High Court issued a decision in 2003. As a basic rule in a sporting competition with high risk potential and as a consequence of an implied exclusion, the injured party has no claim against the injuring party if the rules of the sporting competition have not been breached in a culpable way (BGH 1st April 2003 – VI ZR 321/02). However, in 2008, the Senate modified its former decision and held that these principles do not apply to cases where the injuring party is insured by a casualty insurance company (BGH, 29th January 2008 – VI ZR 98/07).
At a particular moment in a soccer match, the claimant and the injuring party (defendant) both fell to the ground after a tackle where they both attempted to gain control of the ball. The claimant suffered a fractured leg and sued the defendant for his material damage and compensation for pain and suffering. Lower courts dismissed the claim. The claimant was admitted to appeal, but the High Court approved the prior judgments. The claimant, charged with the burden of proof, was not able to provide evidence that the injuring party had breached the rules of the sporting competition, in a culpable manner.
The High Court pointed out that liability of athletes requires evidence that they violated the rules of the sporting competition in a culpable way, causing injury to another person. Liability is excluded for physical injury that is suffered by one of the combatants in a clash where the rules of the game and concepts of fairness common to all sports are respected. In this case, the injuring party did not neglect any diligence as a precondition for liability and did not act in a culpable manner.
According to the High Court the requirements of diligence for the participation in any sporting event are defined by the particularities of the sport itself. Therefore, the factual situation and the legitimate expectancy for security of the participation in the sport have to be taken into consideration. Such requirements are generally defined by the rules and standards of the respective sport.
Following these principles, the High Court ruled in this case that a duel for the ball in a soccer match that may bring down one or both of the players, would correspond to
the character of the game and would not constitute a claim for indemnity.
Finally, the High Court stated that the existence of insurance cover on the side of the injuring party did not change the question of liability. The High Court held that the existence of such insurance cover could not substitute the missing default of the injuring party and that the insurance coverage generally would not originate a claim.
In conclusion, the High Court made good law in accordance with the general Principle of Separation (“Trennungsprinzip”) under German Casualty Insurance Law.
According to the Principle of Separation, as a basic rule, it has to be proven in every case that the injuring party (insured) is liable for the injury of the other party. Unless the question of liability between the claimant and the insured is not decided by a court, the insurer is not obliged to indemnify the insured party. Sometimes a second lawsuit is needed to clarify the question of coverage between the insured and the insurance company. Therefore, the insurance coverage complies with the liability and not conversely, where the liability complies with the insurance coverage.
The new decision of the High Court is of particular importance for the insurance industry, since it provides clarity. As the judgment of the High Court in 2008 did not formally give attention to the Principle of Separation, one could take the view that the question of liability of the injuring party (insured) in a sporting competition is of secondary importance or even irrelevant as long as there is coverage granted by a third party liability insurer.
However, the new decision of October 27, 2009 has confirmed again that the determination of liability is always a condition for insurance coverage and that existing insurance coverage cannot lead to liability of the insured. Thus, there is no need for liability insurers to implement exclusions for liability in sporting competitions in their insurance terms and conditions.
David Lewin, Managing Director