A friend has got his windshield damaged by a Swiss person (trying to load a bulky item in the front seat that went unlucky). Regularly this is a quick 3rd party liability issue, but the guy is trying to do nothing at all and comes up with stupid excuses like "the insurance companies need to sort this out" and that "friend's insurance will need to send a letter stating the damage isn't covered". He didn't even open the case with his insurance company. I'm trying to help, also bridging the language gap between the 2 parties.
Friend has no insurance on glass damage, and is desperately needing his car as he has a family with 3 kids. Worse, he has no legal insurance either, being new to Switzerland (UA refugee).
He has sent a registered letter to the guy asking to pay the damages (including the offer from the glass repair shop). Letter was not picked up by the guy so it came back.
I'm trying to see what Step2 in this process is, before we turn him into the debt registry (Betreibungsamt).
He needs to be threatened to move, otherwise he's gonna pick the easiest route which is not doing anything.
My thoughts:
- ask the insurance of the guy (Mobiliar) to see if he as claimant can do anything
- send the same letter again as not registered with a deadline for reaction and a threat of legal action
- ask (nudge) the guy via phone / SMS about the case ID with Mobiliar (to make sure this is progressing)
- send an SMS that the situation will be escalated to legal matters unless he responds
- ..... ???
- profit (or collection process)
Is that process correct?
Can anyone else, like local police help in this process?
Your friend A (owner of the piece and the car) plus helper B loading something together on the front seat of A's car, and somehow that got the windshield cracked? So both were directly participating?
No. First of all your friend was involved in causing the damage, so there is a shared liability issue to be decide upon....
And the changes are good that the Swiss guy is right, your friend needs to make a claim against his insurance company for the damage caused by a third party and then it is up to insurance companies to sort out who pays what.
If you want to claim damages in this case you would have to claim directly against the person. You can only go against a car insurance.
A registered letter which is not collected is considered as delivered. Keep it and all the relevant post documents in a safe place (print out the non delivery note from the website). Do not open the letter.
Next step would be pursuit/Betreibung. However, Urs raises a very important question:
If this is the case it would be a Gefälligkeit and liability of helper B is limited, reduced to zero. I could even be, as the other party got some good advice from their own legal insurance: Admit nothing, stop communication, and wait for poursuit/Betreibung which might never come.
The Swiss person was loading. I called him and he says they "did it together". My friend says there is no way they would both physically fit into the front right seat. They were trying to load a chair. In the end it's one person's word against the other's.
By loading the chair the wheels of the base cracked the screen, actually on 2 places. Repair (replacement) costs are ~1400 CHF and him being a displaced Ukrainian, it's currently breaking his living costs budget, so he can't drive now.
The Swiss guy opted to do nothing and deflect, so there's no communication happening right now.
I wanted to know if there's anything my friend needs to do before going to Betreibung, or can he start the process as it is (one registered letter bounced, the Swiss guy saying he's not taking any letter from him).
Important is: Why was the Swiss person loading this chair? Whos chair was it. And who profited from the chair being in the car. Depending on these answers the Swiss person might not be liable. Yes it sucks.
There is no pre-requirement to start a Betreibung. However, for a successful Betreibung there should be an unpaid debt or claim. The bounced letter is more than enough.
An other option is to use directly the Schlichtungsverfahren at the Justice of Peace (Friedensrichter) w/o a prior Betreibung. This might be cheaper, faster, and more convenient because if the Betreibung is contested, you will have to do it anyway.
Sorry but if both the Ukrainian and Swiss were there and involved in this, I don’t think the Ukrainian has a leg to stand on. Even if he wasn’t touching the chair at the time, he did not speak up and say don’t do that it’s a stupid idea (which it sounds) therefore he is as much to blame. If he has him put on the debt registry he is an arse!
One plausible situation would be that the Swiss is already in the passenger seat and the Ukrainian (it's his car so he's the driver) heaves it onto him. At any rate, in all likelihood both were directly participating, otherwise the helper wouldn't have been needed in the first place.
Legally, this is a "Gefälligkeit", a favor without personal gain. There's no liability unless the helper acted with gross negligence or against the owner's instructions, neither appears to be the case.
However it's nonetheless possible that the helper's liability insurance covers the damage, some companies do others don't. The Ukranian's situation may well increase the chances for that.
Since the start of this year, the damaged party can themselves raise a claim against the (assumed) culprit's insurance (in the past, only the insured person could do that). So the question is, does the helper have private liability insurance and with which company? I'm not aware of some kind of central registry, but OP's own insurance should know or otherwise be able to help. Feedback on this point would be welcome.