Traffic Accidents2026-11-07

An oncoming vehicle crossed into my lane: what compensation can I claim for my injuries and my written-off car?

When a vehicle from the oncoming traffic strays into your lane, the keeper, the driver and the motor liability insurer are usually fully liable. What you can claim for your injuries and for the destroyed car, how the figure is built up, and which deadlines are running.

You were driving properly, and yet it still happened: the oncoming vehicle drifted into your lane and there was nothing more you could do. Now you are at home or in hospital with your injuries, your car is a wreck, and the other side’s insurer is sending forms and an opening offer. This article tells you what you are entitled to in this situation, how the figures come together, and what you would do better not to sign just yet.

In brief

When a vehicle from the oncoming traffic crosses into your lane, the parties usually liable are the keeper (§ 7 Abs. 1 StVG), the driver (§ 18 Abs. 1 StVG) and the driver’s motor liability insurer. You can bring your claim directly against the insurer under § 115 Abs. 1 Nr. 1 VVG. If the collision was unavoidable for you, the operating risk of your own vehicle is left out of account (§ 17 Abs. 3 StVG) — the claim is then settled without any apportionment, that is, at 100 per cent. For your injuries you receive fair compensation in money under § 253 Abs. 2 BGB, together with all the financial consequences. In the case of a write-off, what is reimbursed in most cases is the replacement value less the salvage value, plus the ancillary items.

How I help you

Establishing liability in principle and obtaining access to the investigation file
Registering your claims with the insurer — this suspends the limitation period (§ 115 Abs. 2 Satz 3 VVG)
Instructing an expert of your own choosing, rather than accepting the other side’s report
Setting out and settling the property damage in full, including loss of use and ancillary costs
Assessing the pain and suffering award and quantifying it with reasons, and requesting interim payments
Calculating loss of earnings, loss of household capacity, and pension claims
Reviewing settlement offers and keeping late consequences open; litigation where necessary

Why you will usually settle here without any apportionment

The keeper of the other vehicle is liable for the simple reason that the damage arose in the course of operating their motor vehicle. Fault is not required for this (§ 7 Abs. 1 StVG). This liability is excluded only in cases of force majeure (§ 7 Abs. 2 StVG). A momentary nodding-off, a driving error on a bend, or an overambitious overtaking manoeuvre are none of these. The driver is liable in addition under § 18 Abs. 1 StVG. The driver can escape liability by showing that the damage was not caused by their fault.

Where two motor vehicles are involved in an accident, § 17 Abs. 1 und 2 StVG in principle calls for an apportionment of the respective shares of liability — and the operating risk of your own car feeds into that assessment too. The answer to this lies in § 17 Abs. 3 StVG: if the accident presented itself to you as an unavoidable event, nothing of your share remains. The threshold, however, is set high. An accident is unavoidable only where both the keeper and the driver observed every care that the circumstances demanded. “I did nothing wrong” does not yet meet this standard. One question is decisive: with the utmost attention, would braking or swerving still have been open to you? Where the oncoming traffic hits you suddenly, the answer is often no — but that cannot simply be taken for granted.

On the other side stand the traffic violations that support the claim: the duty to keep to the right under § 2 Abs. 2 StVO, changing lanes only where any endangerment is ruled out (§ 7 Abs. 5 StVO), and the prohibition on overtaking into lanes reserved for oncoming traffic (§ 7 Abs. 3a, 3b StVO). You can pursue the insurer directly. The insurer and the party at fault are liable as joint and several debtors, and the insurer pays in money (§ 115 Abs. 1 VVG). One particular feature applies only to the no-fault keeper’s liability: it is capped under § 12 StVG — in principle five million euros for personal injury and one million euros for property damage per event. In practice this is only felt where a very large number of injured parties are affected. Liability based on fault is not limited in amount.

Total loss: the way the figure is worked out

What is owed is not reimbursement in the form of a repair, but a sum of money — § 249 Abs. 2 Satz 1 BGB. VAT is included only to the extent that it has actually been incurred (§ 249 Abs. 2 Satz 2 BGB). If you buy a replacement vehicle privately, the calculation is generally made net.

There is an economic total loss where a repair does not suffice, or would be possible only at disproportionate expense (§ 251 Abs. 1, Abs. 2 Satz 1 BGB). The way it is worked out:

Replacement value — what an equivalent vehicle costs on the market, not the book value.
less the salvage value — what the accident vehicle still fetches.
Result: the replacement cost. That is your base figure.

Where the repair costs exceed the replacement value only slightly, you can claim the repair instead. In settlement practice a limit of around 130 per cent of the replacement value is applied for this. The usual precondition is that the vehicle is in fact fully repaired and continues to be used. This figure appears in no statute; it is a way of giving concrete shape to the disproportionality referred to in § 251 Abs. 2 BGB.

On top of this come, depending on the case: towing and storage costs, the costs of the expert you instructed, deregistration and registration, compensation for loss of use for the period of obtaining a replacement or a hire car, a flat-rate allowance for incidental costs, the loss of your no-claims standing in your comprehensive insurance, and your legal costs as part of the loss. The loss of no-claims standing counts where your comprehensive insurer has paid out in advance.

Pain and suffering: where the amount comes from

§ 253 Abs. 2 BGB gives you “fair compensation in money” — the statute contains no table. What matters is: the nature and severity of the injuries, the number of operations, the length of intensive care, hospital stay and rehabilitation, the duration of your incapacity for work, lasting consequences such as restricted movement or scarring, psychological consequences, your age, and the extent to which your way of life is impaired. Particularly culpable conduct on the other side — alcohol or using a phone, say — is an aggravating factor. Settling a claim that is delayed without reason can also affect the amount. In practice, collections of comparably decided cases are used as a point of reference.

The pain and suffering award is only one layer. Alongside it stand the financial elements of personal injury: the costs of medical treatment and co-payments, journeys to appointments, care and conversion costs as increased needs (§ 843 Abs. 1 BGB), loss of earnings as a disadvantage to your livelihood and advancement (§ 842 BGB), and the loss of your capacity to run your own household. Depending on how the case is framed, this loss is classified either as loss of earnings or as an increased need. If your earning capacity remains permanently reduced, the other side in principle owes an annuity in money. You can demand a capital settlement only where there is good cause (§ 843 Abs. 3 BGB). Should the accident end fatally, funeral costs, a maintenance annuity, and bereavement compensation for close relatives are added (§ 844 BGB). Reductions only loom via § 254 BGB — for instance where a seatbelt was not worn.

Deadlines and how matters proceed

After the accident there is almost always an investigation for negligent bodily harm (§ 229 StGB), or, where the outcome is fatal, for negligent homicide (§ 222 StGB). Through the file you obtain the accident sketch, the pattern of marks on the road, and the witness statements. That is the best foundation for the question of liability. Without a lawyer’s access to the file it is in practice not obtainable.

You have three years before your claims become time-barred (§ 195 BGB). The clock does not start on the day of the accident. It starts only at the end of the year in which the claim arose and you knew the relevant circumstances, including the identity of the debtor (§ 199 Abs. 1 BGB). Grossly negligent ignorance is treated as knowledge. For an accident in 2026, the period therefore typically expires at the end of 2029. Once you register your claim with the insurer, the limitation period is suspended. The suspension ends when the insurer’s decision reaches you in text form (§ 115 Abs. 2 Satz 3 VVG). § 115 Abs. 2 Satz 2 VVG draws an absolute line: ten years after the damage occurred, the direct claim ends in every case. For bodily injury, the maximum period of 30 years under § 199 Abs. 2 BGB comes into play. It only bites, however, where the injury and the party responsible have remained unknown to you. That is precisely what is lacking here.

My approach is therefore in two parts: the property damage is settled promptly, as soon as the report and liability are established. The personal injury is only quantified in final terms once the course of recovery can be foreseen — until then I request interim payments and keep late consequences open.

A typical case

A working woman is driving on a two-lane country road. An oncoming vehicle strays into her lane on a bend. The result: a series of rib fractures, a broken lower leg, two operations, ten days in hospital, rehabilitation, four months unable to work, and reliance on help in the household for months. The nine-year-old car is an economic write-off. The insurer accepts liability. But it bases its figure on its own, higher salvage-value offer and strikes out the expert’s costs. After six weeks it offers a lump-sum full-and-final settlement “in final discharge of the matter”. At that point no one can say whether the leg will heal without consequences. The route taken: an expert of her own, access to the file, settlement of the property damage on the basis of the regionally established salvage value, an advance on the pain and suffering award, loss of earnings and loss of household capacity calculated separately — and no settlement without a reservation for future losses.

Common mistakes

Accepting the insurer’s salvage-value offer without scrutiny, or selling the vehicle too hastily before the salvage value has been reliably established.
Accepting the expert proposed by the other side’s insurer instead of instructing one yourself.
Signing a settlement declaration while permanent consequences are still unresolved. It is generally final in its effect, even if a follow-up operation turns out to be necessary years later.
Not having complaints medically documented because “it’s bearable again”. What is not in the records is barely provable later.
Completing the other side’s insurer’s blanket waivers of medical confidentiality and lengthy questionnaires without limiting their scope.
Settling only the sheet-metal damage and forgetting loss of earnings, loss of household capacity, and co-payments.
Waiting it out. With the turn of the year after the third year, the claim is generally gone.

Frequently asked questions

Do I have to accept a deduction for the operating risk of my own car?

Not if the accident was unavoidable for you — in that case your share falls away entirely under § 17 Abs. 3 StVG and the matter is settled without any apportionment. The standard is strict: every care demanded by the circumstances is required of both driver and keeper. In a sudden collision with oncoming traffic this can often be made out, but it turns on the visibility, the speed, and the opportunity to react.

How is the total loss actually calculated?

Replacement value less salvage value gives the sum you can claim. VAT is included only to the extent that it is actually incurred on obtaining the replacement (§ 249 Abs. 2 Satz 2 BGB). Added to this are towing, the expert’s costs, deregistration and registration, loss of use or a hire car, and further ancillary items.

Should I claim the pain and suffering award straight away or only once treatment is over?

Register it straight away; quantify it in final terms only once the course of recovery can be foreseen. Until then, interim payments are the right way to go, so that you are not left out of pocket. Anyone who settles finally too early gives away the items that only emerge later.

Who pays for the expert and for my lawyer?

Where the other side’s liability is clear, both form part of the loss the insurer has to reimburse. If you have legal-expenses or motoring-legal-expenses insurance, I obtain confirmation of cover. How the fees are calculated under the RVG and what you may be looking at, we discuss openly in the initial consultation.

What do I do if the insurer disputes liability or offers only a partial apportionment?

Then the investigation file is evaluated first; the pattern of marks on the road, the final positions of the vehicles, and the witness statements usually decide the question far more clearly than the accounts of those involved. If the insurer sticks to an apportionment that does not match the evidence, litigation is the way forward — and it must be brought before the limitation period expires.

Your next step

Two things are time-critical in your situation. First, the condition of your vehicle must be recorded in a way that secures the evidence, before it is disposed of. Second, your injuries must be cleanly documented from the outset. Everything else can be caught up in an orderly way — this cannot. Tell me what happened, what documents you have, and what the insurer has written so far. I will tell you whether liability is sound, which items come together in your case, and what I will do next. If you would like to read up beforehand, you will find the overview in road traffic accident law.

I work throughout Germany, with the initial consultation by video or telephone if you prefer — from hospital or from home as well. This article gives general information and does not replace legal advice in an individual case.

This article provides general information and is no substitute for legal advice in an individual case. Last updated: 2026-11-07.

Christian Czirnich, Rechtsanwalt (attorney at law), Kirchseeon near Munich

Tell me how the crash happened and what injuries you have – I will take a look.

I read every message myself and usually reply on the next working day. What you write to me is covered by legal professional privilege from the first word, even if no engagement comes about. The initial assessment is free of charge.