What happened?
The claimant, as the policyholder, had a partial comprehensive motor vehicle insurance contract with the defendant insurance company. During a cycling holiday in the summer, the claimant parked his vehicle in a public parking area in Greece. During this time, the vehicle was towed away by unknown third parties and sustained significant damage. The towing was not carried out properly; instead, it was performed over unpaved, rocky terrain without regard for potential damage, so that damage caused by the towing process was effectively “pre-programmed.” As a result, severe deformations of the bumper occurred, along with scratches to the underbody and engine compartment cover, as well as damage to the rim and fender. The repair costs were estimated at approximately EUR 4,500.
The claimant sought a declaratory judgment confirming insurance coverage, relying on two grounds for coverage under the policy terms: damage caused while parked (i.e., contact with an unknown vehicle), and, in the alternative, malicious or willful acts by third parties unrelated to the operation of the vehicle. The insurer denied coverage. The court of first instance ruled in favor of the claimant and found that the damage resulted from a malicious or willful act. The court of appeal upheld this decision and allowed an ordinary appeal. The insurer filed an appeal against this decision.
How did the Supreme Court (OGH) rule?
The Supreme Court upheld the insurer’s appeal and dismissed the claim. It overturned the lower court rulings and denied insurance coverage.
The OGH first clarified that this was not a case of “damage while parked”: the damage did not arise during a parking maneuver involving contact with an unknown vehicle but rather from a towing operation. According to the wording of the policy terms, such a situation does not fall under the category of parking damage.
The decisive issue was the interpretation of the clause “malicious or willful acts by third parties unrelated to the operation of the vehicle.” The Supreme Court noted that these terms do not have a uniformly defined meaning in legal language. Therefore, in the context of the policy, they are not to be equated with mere intent. Rather, “maliciousness or willfulness” requires a qualified form of intentional conduct, driven by particularly reprehensible motives (such as senseless desire to cause harm, vandalistic pleasure, or hostility towards the vehicle owner), or damage inflicted as an end in itself.
The burden of proof for the occurrence of such an insured event lies with the policyholder. A lesser standard of proof does apply: an external appearance of the incident that makes malicious or willful behavior sufficiently likely is deemed sufficient. However, in the case at hand, the findings only indicated a completely improper towing process in which damage was accepted as a consequence. This does not establish a particularly reprehensible motive or an intention to cause damage as an end in itself. Thus, intent was proven, but not the qualified form of malicious or willful behavior required for coverage.
In the absence of proof for an insured peril, the Supreme Court denied coverage and dismissed the claim.
(Decision 7 Ob 168/25v of 19 November 2025)
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