Traffic Accidents2026-11-10

Alone Against the Tree: Does Comprehensive Cover Pay When the Cause Is Unknown and a Blood Sample Was Taken?

In a single-vehicle accident with an unexplained cause, it is the comprehensive insurer who must prove gross negligence — not you who must prove your innocence. How that shifts the moment the blood sample reaches the file, and which deadlines and calculations then matter.

Your car went into a tree, no one else was involved, and you yourself are not entirely sure how it happened. At the hospital they took a blood sample, the car is a write-off, and your comprehensive insurer now holds a claim notification that you made over the phone while still half-dazed. Now you are wondering whether you will see any money at all.

In short

Your comprehensive cover has to pay for as long as the insurer cannot prove that you caused the accident through gross negligence. An unexplained cause therefore counts against the insurer, not against you. The situation only becomes dangerous once the blood sample is in play — because then the insurer is entitled under § 81(2) VVG to reduce the payment in proportion to the severity of your fault. And it becomes equally dangerous through false or guessed answers on the claim form, because there the burden of proof is reversed under § 28(2) sentence 2 VVG.

How I can help you

I examine the insurer’s refusal or its reduction quota to see whether it can in fact discharge its burden of proof.
I inspect the criminal investigation file and assess the blood sample, the back-calculation and the physical evidence before you respond to the insurer.
I coordinate the criminal proceedings and the insurance claim so that you do not forfeit in one what you need in the other.
I complete the claim form with you — fully, truthfully and without speculation about things you do not know.
I recheck the total-loss settlement and verify the replacement value, the salvage value, the excess and the order in which the deductions are made.
I keep an eye on the limitation period and clarify the cost side in advance, through your legal expenses insurance or under the RVG.

Why the unexplained cause works in your favour

The only thing you have to prove is the insured event itself: that your vehicle was damaged by a sudden external event acting on it with mechanical force. The impact against the tree is exactly that. Why you left the road, by contrast, is not something you have to explain.

That is because § 81 VVG is an exception to the promise to pay, and whoever relies on an exception must establish that its conditions are met. That this is how it is meant becomes clear from the comparison: in § 28(2) sentence 2 VVG the legislator expressly reversed the burden of proof and placed it on the policyholder. In § 81 VVG he did not. If the cause remains open, the insurer as a rule remains bound to pay.

This is no formality; it is decisive in practice. A vehicle can leave the road for reasons that are no one’s fault: a deer, a wet surface, a burst tyre, a seizure, a sudden faintness. Gross negligence requires more than the mere fact that something went wrong.

Two things put this position at risk. First, your own conjectures: the sentence “I must have fallen asleep” or “I was probably going too fast” hands the insurer precisely the proof it lacks. Second, the question of who was driving. Section 81(2) VVG turns on the fault of the policyholder; if someone else was at the wheel, attribution is a separate inquiry that depends on whether that person was exercising custody of the vehicle on the policyholder’s behalf.

What the blood sample changes — and what it does not

The taking of the blood sample itself is usually not open to challenge. Section 81a(2) sentence 2 StPO permits it without a judicial order where specific facts give rise to a suspicion of an offence under § 316 StGB or under § 315c(1) no. 1 letter a StGB. A single-vehicle accident with no apparent cause, together with the smell of alcohol — in most cases that threshold is reached. Formal challenges come to nothing here; the content is the more productive line.

The result reaches the insurer’s file by one of two routes. Either through you yourself, because under § 31(1) sentence 1 VVG the insurer may demand any information required to establish the insured event or the extent of its liability. Or through the criminal file: under § 475 StPO a lawyer may obtain information on behalf of a private individual or other body where he sets out a legitimate interest. This does not happen automatically — and under § 475(1) sentence 2 StPO the information must be withheld if the person concerned has an interest worthy of protection in its being withheld.

Once a reading is on the table, the real work begins. Section 81(2) VVG contains no table; it calls for a reduction “in proportion corresponding to the severity of the fault”. The higher the reading, the closer the quota moves to a complete release from liability; where the intoxication was pronounced, in my experience there is as a rule nothing left. Below that level there is apportionment, and the amount is open to argument.

Three points are the most important here. First, the back-calculation to the time of the accident: it is an estimate with ranges, not a measurement. Second, a drink taken afterwards or medication — but only if that is the truth, because an invented explanation does more harm than the reading itself. Third, and this is the point most often overlooked: § 81(2) VVG requires that you brought about the insured event. The alcohol must therefore have been a cause of the accident. If it is established that an animal was on the road or that a component failed, the reading alone will not carry the reduction.

Look, too, at your policy conditions. Many sets of conditions waive the defence of gross negligence under comprehensive cover but carve out alcohol and drugs from that waiver. Whether, and how far, that waiver reaches differs from one insurer to the next and sits under a different clause number each time — that is the first thing I look for in your papers.

A duty to inform the insurer, a right to silence in the criminal case

Here lies the conflict that decides most cases. In the criminal proceedings you may remain silent, and no adverse inference may be drawn from it. Towards your comprehensive insurer you may not: there the duty to provide information arises under § 31(1) VVG, and the insured event must be notified without undue delay under § 30(1) sentence 1 VVG.

But staying silent is something quite different from lying, and it is precisely that distinction which protects you. Truthful, complete information discharges your duty; you do not owe the insurer an assessment of your own conduct. False statements, by contrast, open to the insurer the more convenient route via § 28 VVG — more convenient because there the burden of proving the absence of gross negligence falls on you. And anyone who deceives dishonestly also loses, under § 28(3) sentence 2 VVG, the counter-proof of causation by which one can otherwise object under § 28(3) sentence 1 VVG that the error had no bearing on establishing the event or the liability.

One lever is often overlooked here. Under § 28(4) VVG, a full or partial release from liability for breach of a duty to inform or cooperate that falls to be performed only after the insured event presupposes that the insurer first drew your attention to that consequence by a separate notice in text form. If that notice is missing, or is buried in the small print of a form, it is worth examining.

In practical terms this means: no claim notification from the hospital bed, no telephone call with the field adjuster, no questionnaires answered off the cuff. Ask in writing for an extension of time, wait for file inspection, then answer in an orderly way.

What is paid out in the end

Comprehensive cover is not compensation for damage but a contractual benefit. The yardstick is therefore found not in the law of damages but in your conditions — which is also why there is in principle no loss-of-use payment, no flat-rate allowance for incidental costs, and no reimbursement of your legal fees by your own insurer. A hire car is paid for only where it has been agreed.

In a total loss the calculation runs in this order: the replacement value less the salvage value gives the indemnity; if the repair costs are lower, that lower figure is as a rule the ceiling. From this the excess and VAT are deducted, so far as the conditions so provide. Only last of all does any reduction quota take effect.

There are two points I always recheck. The salvage value, because a high bid from a salvage exchange noticeably depresses the figure, and whether you are bound by it emerges only from your conditions. And the order of excess and quota, because it makes a difference whether the insurer deducts first and then reduces, or the other way round.

A typical case

A country road at night, a right-hand bend, an impact against a tree. The driver is taken to hospital by ambulance, where a blood sample is drawn. Weeks later the comprehensive insurer reduces the indemnity to nothing and points to alcohol. The figures ran: replacement value €18,000, salvage value €3,200, excess €500 — so €14,300, reduced to zero.

The attack then fastens on three points. The back-calculation to the time of the accident rests on assumptions about when drinking ended and the rate of elimination, assumptions often not documented in the file at all. The physical evidence shows a braking mark consistent with an evasive manoeuvre, and a witness saw game in the area — at which point causation is in question, not merely the reading. And the questionnaire contains a statement about the route travelled that the driver guessed at after surgery; there the question of the notice in text form arises. Whether all this holds is decided by the file, not by the account.

Common mistakes

Making the claim notification by telephone and from hospital, with statements one cannot possibly know.
Speculating about the cause instead of saying that one does not know it. Gaps in memory after an impact are not something to be filled in.
Answering the questionnaire before one knows the criminal file. After that, the statement is out in the open.
Treating the criminal case as a side issue. What is established there ends up, in practical terms, in the insurance file.
Letting a penalty order become final. The time limit for objecting is short and is stated in the penalty order itself.
Treating the letter of refusal as the end of the road. Once the claim has been notified, the limitation period is suspended under § 15 VVG until the insurer’s decision reaches you in text form — after that it runs on. A special six-month time limit for bringing a claim, as is still often cited, no longer exists.
Not bringing in one’s own legal expenses insurer, on the assumption that it never responds where alcohol is involved.

Frequently asked questions

May the comprehensive insurer use the result of the blood sample?

If it has the result, as a rule yes — civil proceedings know no automatic bar on evidence drawn from a criminal case. The more interesting question is how the insurer gets there: under § 475 StPO it obtains information only through a lawyer and only where a legitimate interest has been set out, and under § 475(1) sentence 2 StPO the information must be refused where there is a countervailing interest worthy of protection. Often the insurer learns the reading only because the policyholder tells it himself.

Do I have to tell the insurer that I had been drinking if I stay silent in the criminal case?

To a specific question under § 31(1) VVG you may not give a false answer. Your right to silence in the criminal proceedings is untouched, but it does not extend to your dealings with your insurer. An untrue statement is the worst of all options, because alongside the apportionment under § 81 VVG it also opens up the breach of duty under § 28 VVG — with the burden of proof on you.

Does comprehensive cover pay if I fell asleep at the wheel?

That depends on what can be established. Driving on while overtired despite clear warning signs can amount to gross negligence and lead to a reduction under § 81(2) VVG. But if all that is established is that the vehicle left the road, and the charge of falling asleep rests solely on your own supposition, the insurer lacks the proof — which is why sentences of that kind have no place in any claim notification.

How large may the reduction be where alcohol is involved?

The law names no percentages; it requires under § 81(2) VVG a proportion corresponding to the severity of the fault. What matters is the blood-alcohol reading, the circumstances of the journey, and the question whether the alcohol actually caused the accident at all. By way of orientation: 0.5 per mille is a regulatory offence under § 24a(1) StVG; unfitness to drive within the meaning of § 316 StGB is established independently in the criminal proceedings and is not fixed in the statute by any figure.

Is it even worth it once the insurer has already refused?

In many cases yes, because refusals regularly rest on an evidential position that the insurer could not maintain in this form if it were disputed. What is decisive is that the file is assessed before any further statements are made. A refusal is a legal view, not a judgment.

Your next step

If you are currently in hospital and the insurer’s letter with its deadline is sitting on your bedside table, the most important decision is to fill in nothing and sign nothing before the order of events has been clarified. Send me the claim number, the insurer’s letter, your policy conditions and — if you have it — the public prosecutor’s file reference. I will inspect the file, ask the insurer in writing for an extension of time, and then tell you what your position is really worth. You can find more on this area under Motor and accident law.

What a first assessment costs is something I discuss with you at the initial consultation, before anything is instructed; billing follows the RVG, and I clarify any existing legal expenses cover for you in advance. I work nationwide, by video or telephone — there is no need to travel to me.

This article is general information and not legal advice in an individual case.

This article provides general information and is no substitute for legal advice in an individual case. Last updated: 2026-11-10.

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

Describe how the crash happened and what the insurer wrote – 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.