"We Cannot Reimburse the Loss of Use" – Decoder

Also known as

Nutzungsausfall-Entschädigung · Nutzungsausfallentschädigung · NAE · Flat-rate mobility compensation

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What you have just received – verbatim

Typical variants:

"You have not sufficiently proven the loss of use – we cannot reimburse this item."

"Since you own a second vehicle, no loss of use has occurred."

"The Sanden-Danner flat-rate table does not apply here – you must provide concrete proof of usage costs."

"You were on holiday / ill / abroad during the relevant period – no use was possible."

Four recurring lines of argument:

• "Not proven" – as if you were required to produce evidence of use
• "Second-vehicle argument" – often constructed without examining the actual family circumstances
• "Sanden-Danner not applicable" – the recognised flat-rate table rejected outright
• "No use possible" – cited in cases of holiday, illness or time abroad

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What is really behind this

1. Eliminating the damage item

Nutzungsausfall typically amounts to €30–100 per day. Over 14 days of repairs that comes to €420–1,400 per case – a substantial sum the insurer saves entirely by refusing to pay.

2. Manufacturing a reversed burden of proof

Insurers phrase their refusals as if you must prove the use. In fact, the reverse is true: for private vehicles, use is presumed (BGH case law). The insurer would have to prove non-use – if it cannot, the claim stands.

3. Constructing the second-vehicle argument

When two vehicles are registered within a family, the insurer simply claims "you had another car." What actually matters is the specific usage arrangement: where two employed persons each have their own vehicle, each vehicle is used by one person – the loss remains.

4. Rejecting the Sanden-Danner table

The Sanden-Danner table significantly simplifies the assessment – flat daily rates by vehicle class rather than a complex case-by-case valuation. Insurers instead demand "concrete proof" that is practically impossible to provide (fuel card records, route plans, mileage logs).

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What the courts say

Presumption of personal use

The BGH has established in consistent case law that for privately used vehicles, the intention to use and actual use are presumed. Injured parties do not need to prove specific journeys or routes – a sworn declaration (eidesstattliche Versicherung) regarding typical use is sufficient.

Sanden-Danner table as a flat-rate basis

The Sanden-Danner table is a judicially recognised basis for estimation. It assigns flat daily rates to vehicle classes:

→ Figures are indicative based on Sanden-Danner – exact rates follow the current edition of the table.

Standard calculation

Nutzungsausfall = daily rate × repair period in days

Example: mid-range vehicle, 14 days of repairs → €55 × 14 = €770 Nutzungsausfall.

The second-vehicle question – BGH case law

A second vehicle does not automatically exclude Nutzungsausfall. What matters is the specific family arrangement:

• Two employed persons, one vehicle each → loss of use remains, because the second vehicle is used by the other person
• One person, two vehicles → the second vehicle may reduce or exclude the claim
• Family second vehicle for occasional use → loss of use remains, because the primary vehicle is not replaced by it

Repair period as the basis for calculation

The benchmark is the actual repair period (workshop order, waiting times for parts, workshop capacity) – not a theoretical ideal. In the event of a total loss: 14 days is the typical replacement procurement period.

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What to do now – concretely

💡 The most important rule

You prove nothing – you simply describe your usage arrangement. The presumption of personal use protects you.

🛠 Four steps

1. Identify your vehicle class Determine the Sanden-Danner class for your vehicle. If uncertain: consult a lawyer or appraiser (Sachverständiger).

2. Document the repair period Workshop order, date of return, any waiting times for parts.

3. Set out your usage arrangement in writing Commute to work, family trips, errands. If a second vehicle is involved: explain the specific division of use.

4. If refused: sworn declaration + lawyer A sworn declaration (eidesstattliche Versicherung) is sufficient as a level of proof. For disputes over €300, escalating to a lawyer is worthwhile.

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Letter template – enforcing Nutzungsausfall

Dear Sir or Madam,

I refer to your refusal to reimburse Nutzungsausfall (loss of use)
in claim [claim number].

I reject your blanket refusal on the grounds of "not provable."

Under the BGH's established case law on the presumption of personal
use, I as the injured party am NOT required to prove specific
journeys. For private vehicles, use is presumed.

I hereby declare under oath (eidesstattliche Versicherung):
- My vehicle would have been in actual use during the period of loss.
- Specific usage arrangement: daily commute of [X] km, family
  trips, errands.
- No other vehicle fully available to me as a substitute.

[If the second-vehicle argument is raised:]
My family's second vehicle [make, model] is used by [person]
for [purpose] and was not available to me during the period of loss.

Specific calculation:
- Vehicle class [X] under Sanden-Danner
- Daily rate: [Y] €/day
- Repair period: [Z] days (workshop order enclosed)
- Total Nutzungsausfall: [Y × Z] €

I request full reimbursement of [Y × Z] € within 4 weeks.

Yours faithfully,
[Signature]

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What the insurer will most likely do next

Response A – Reduce the daily rate

"The daily rate is too high – we offer €30/day instead of €65."

Your response: Refer to the Sanden-Danner table. Determine your vehicle class precisely. If disputed, instruct a lawyer.

Response B – Shorten the repair period

"The repair could have been completed in 7 days – we will only reimburse that period."

Your response: Enclose the workshop order and repair report. Document waiting times for parts. Cite BGH case law on the actual repair period.

Response C – Reject the sworn declaration

"A sworn declaration is not sufficient – we require fuel card records and routes."

Your response: Cite BGH case law on the presumption of personal use. A sworn declaration (eidesstattliche Versicherung) is a sufficient level of proof. Take the matter to court if necessary.

Response D – Construct the second-vehicle case

"Your household has a second vehicle – no entitlement."

Your response: Set out the specific family arrangement. Who uses which vehicle and for what purpose. Cite BGH case law on multi-vehicle families.

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Frequently asked questions

How much Nutzungsausfall do I receive per day? Depending on vehicle class, €27–175 per day under the Sanden-Danner table. For a mid-range vehicle, typically €45–65/day.

Do I have to prove I would have used the car? No. For private vehicles, the presumption of personal use applies (BGH consistent case law). A sworn declaration (eidesstattliche Versicherung) regarding typical use is sufficient.

Can I claim Nutzungsausfall if I have a second vehicle? Possibly. What matters is the specific family arrangement. If the second vehicle is otherwise in use (e.g. by a partner), the claim remains valid.

For how long is Nutzungsausfall paid? For the actual repair period (workshop order, waiting times for parts). In the event of a total loss, typically 14 days' replacement procurement period.

What if I used a rental car (Mietwagen) at the same time? Then there is no Nutzungsausfall – rental car costs and Nutzungsausfall are mutually exclusive (duty to mitigate loss). You decide which item to claim.

Is it worth going to court over €500 refused? Economically yes – the insurer pays your legal costs. BGH case law on the presumption of personal use is clearly established, giving good prospects for success.

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Related terms

• Nutzungsausfall (detail) – Full calculation logic
• Rental car reimbursement – Alternative
• Decoder "Rental car daily rate too high" – Related strategy
• Burden of proof – The underlying system

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If you are unsure what to do next

Nutzungsausfall refusals can be overturned or reduced in 80–90 % of cases with a well-structured argument. Legal costs are borne by the insurer in the event of a no-fault accident.

→ Start your free claim assessment

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Sources

• Bürgerliches Gesetzbuch § 249 – gesetze-im-internet.de/bgb/__249.html
• BGH, consistent case law on Nutzungsausfall and the presumption of personal use
• BGH, Grand Senate, decision of 09.07.1986, GSZ 1/86 (foundational ruling on Nutzungsausfall)
• Sanden/Danner/Küppersbusch, "Nutzungsausfallentschädigung" tables
• Hentschel/König/Dauer, Straßenverkehrsrecht