The priority right helps people who share liability for an accident (Mithaftung). They get their money back before their own vehicle insurance (Kaskoversicherung) does. The payment from the other party's liability insurance is applied first to the deductible (Selbstbeteiligung), the diminished value (Wertminderung) and other uninsured items.
The legal basis is § 86(1) of the Insurance Contract Act (VVG). The priority right matters in accidents with liability shares such as 25 to 75, 50 to 50 or 75 to 25, when your own vehicle insurance is also involved.
The priority right is a preference set by law. It allows a person whose car was damaged to apply the payment from the other party's liability insurance first to the items that their own vehicle insurance does not cover.
The starting point is the statutory assignment (Legalzession). If your own vehicle insurance pays part of the accident damage, your claim against the other driver passes automatically to that insurer in the same amount. Without more rules, this transfer would split the payment from the other party's liability insurance by percentage across all items. That includes items the vehicle insurer has already paid. The priority right changes this order in your favor. The payment from the other side first covers the gaps that no insurance covers. Only the remaining amount goes to the vehicle insurer.
This is what separates the priority right from a simple liability share. If no vehicle insurance is involved, you simply receive your share from the other party's insurance and pay the rest yourself. Only when vehicle insurance also pays part of the damage do you and your own insurer compete for the same payment. The priority right settles this competition in your favor.
The priority right needs three conditions at the same time: a liability share that is not zero, your own vehicle insurance that pays part of the damage, and at least one cost item that this insurance does not cover.
If liability is not shared and the other party's liability insurance pays the whole damage, the priority right has nothing to apply to. The same is true the other way around. If you were fully at fault and the other side pays nothing, there is no amount to give priority to. In practice, the priority right matters in the large group of accidents with divided liability. Examples are right-of-way errors, lane changes or intersection situations. In these cases, courts or insurers set a share such as 25 to 75, 50 to 50 or 75 to 25.
In addition, you must actually have collision and comprehensive coverage (Vollkasko) for your car and make a claim under it. If you only have liability insurance or have waived Vollkasko, there is no vehicle insurer against which a priority could exist. The effect does not occur in this case, no matter how high the liability share is.
These items get priority: those that collision and comprehensive coverage does not pay, or pays only in part. Three of them occur most often in practice.
The effect is clearest in a worked example that is simplified on purpose. It uses a liability share of 50%. The numbers are chosen freely. They only show how the calculation works. They do not assess a specific case.
Starting point Repair costs €7,200, diminished value €900. Total damage €8,100. Your liability share is 50%. The deductible of your own collision and comprehensive coverage is €500. This coverage pays only the repair costs minus the deductible, so €6,700. It does not cover the diminished value. A possible own share of the expert's fee would be another uncovered item in practice, but it is not given as a number here.
At a share of 50%, the other party's liability insurance pays €4,050 in total. The question is which items this €4,050 is applied to first.
Simplified example for illustration, not legal advice. The actual split depends on your policy, the determined liability share and the amounts documented in the damage report. The amounts are chosen freely and are not a price for any CleverCrash service.
Yes. The priority right applies whether the car is repaired or settled as an economic total loss (wirtschaftlicher Totalschaden). However, the affected items change.
In a total loss, the replacement expense (Wiederbeschaffungsaufwand) takes the place of the repair costs. This is the price of a comparable car minus the residual value (Restwert), which is what the damaged car can still be sold for. Here too, collision and comprehensive coverage usually pays only this expense minus the deductible. A separate diminished value is usually not calculated for an actual total loss. The loss of market value is already included in the replacement value (Wiederbeschaffungswert).
The deductible and the expert's fee also stay uncovered items in a total loss. So they are covered by the priority right. The calculation from the previous section applies in the same way. The only difference is that the replacement expense is the largest item instead of the repair costs.
Not always, as the previous section shows. In claim settlement (Regulierung) practice, this does not always happen by itself. In our experience with reports, the payment from the other side is fairly often offset directly against the claim of your own vehicle insurer. This happens when nobody points it out.
The basis for a correct calculation is a complete vehicle damage report. It shows the repair costs or replacement expense, the diminished value and the expert's fee clearly and one by one. Without these numbers, it is hard to prove the priority to the insurer.
Your traffic law lawyer handles the legal enforcement against the insurer. This includes the letter, the negotiation and a possible lawsuit. As an independent vehicle expert, CleverCrash provides the technical damage documentation on which this enforcement is built.
The legal basis is § 86(1) VVG. Sentence 1 regulates the transfer of the claim. If a policyholder has a claim for damages against a third party, this claim passes to the insurer as far as the insurer pays the damage. Sentence 2 contains the priority clause. The transfer cannot be used to the disadvantage of the policyholder.
The Federal Court of Justice (BGH) has dealt several times with how liability insurance and vehicle insurance work together under § 86(1) VVG. In its decision of May 31, 2023, case number IV ZR 299/22, the Fourth Civil Senate did not accept the plaintiff's further appeal on points of law, because the legal requirements for allowing the appeal were not met. But on the main question, it confirmed the lower court's calculation method. This method is better for policyholders. The deductible stays covered by the priority even after settlement by the other party's liability insurance. It is not simply subtracted from the vehicle insurance payment. In this case the plaintiff received no amount beyond the lower court's decision, but the underlying legal question was decided in the plaintiff's favor.
The BGH sets a limit in its judgment of July 11, 2017, case number VI ZR 90/17. The priority right does not mean that the person who caused the damage, or their liability insurer, must pay more in total than their share in causing the accident. The priority only changes the order of application between you and the vehicle insurer. It does not increase the total claim against the other side.
Your traffic law lawyer handles the legal assessment of your individual case, especially the exact calculation of the reimbursement and the enforcement against the insurer. This section gives a general overview and does not replace legal advice.
In claim settlement practice, the deductible is usually covered first from the payment of the other party's insurance when there is a liability share. This applies if that payment is enough to cover the deductible and the other uncovered items. The exact calculation depends on the case.
Mainly the deductible of the collision and comprehensive coverage, the diminished value and your own share of the expert's fee and lawyer's fees. These are all items that no insurance pays.
A possible loss from the downgrade of your no-claims class is legally a separate item next to the priority right in the narrow sense. Whether it can be reimbursed, and in what amount, is a legal question. Your traffic law lawyer assesses it based on your case.
The law does not set a fixed order. It makes sense to inform both insurers promptly and to support your list of claims with the damage report. It is best to discuss the exact steps with your traffic law lawyer.
A legal preference under § 86(1) VVG. When liability is shared and you have your own vehicle insurance, the payment from the other side may first cover the items that the vehicle insurance does not pay. The payment does not simply go to the vehicle insurer by percentage.
Yes. The replacement expense takes the place of the repair costs. The deductible and the expert's fee are still covered by the priority right.
The law does not require it. In practice it is recommended, because insurers rarely apply the priority correctly on their own. CleverCrash provides the technical numbers from the damage report. Your traffic law lawyer handles the enforcement against the insurer.
In principle, yes, in proportion to the liability share. If your own vehicle insurance does not pay these costs, the remaining own share can be covered first from the other side's payment through the priority right.
The loss of market value that would stay partly uncovered without the priority right when liability is shared.
In an economic total loss, the replacement expense takes the place of the repair costs.
Another small item that vehicle insurance usually does not reimburse.
A clear separation is required for any reliable list of claims.
How costs are split by liability share in case of shared fault, with a worked example of the priority right.
Payout of the damage based on the report, without repair.
Direct contact with your expert
When liability is shared, complete damage documentation decides which items can be proven for the priority right at all. We record the repair costs or replacement expense, the diminished value and the expert's fee clearly in the report. When liability is shared, the other side pays the report costs only in part. So we first check in a free initial assessment whether the effort is worthwhile for you and which items are covered first. Your traffic law lawyer handles the legal enforcement against the insurer. We come to you, including in Erlangen, Nuremberg, Fürth and the Nuremberg Metropolitan Region.
Legal information, not legal advice. Your lawyer handles the legal assessment of your specific claim. CleverCrash prepares the technical damage report as an independent vehicle expert.
