Victim's Priority Right (Quotenvorrecht)
The victim's priority right provides that an injured party who was not fully indemnified by their own insurer is satisfied out of the tortfeasor's remaining assets before their insurer's subrogated recourse claim.
Concept
The victim’s priority right governs the order in which an injured party and their own insurer may assert their respective claims against a tortfeasor when the insurer has not fully indemnified its policyholder’s loss – for example, due to underinsurance, an agreed deductible, or a pro-rata reduction for gross negligence.
Background: Statutory Subrogation
When an insurer indemnifies its policyholder’s loss, the policyholder’s damages claim against the tortfeasor transfers to the insurer by operation of statutory subrogation, up to the amount of the benefit paid, entitling the insurer to pursue recourse against the tortfeasor. If the loss was only partially indemnified, however, the injured party retains a personal claim for the uncompensated difference.
Order of Priority under the Victim’s Priority Right
The victim’s priority right ensures that the injured party’s remaining claim against the tortfeasor is satisfied ahead of the subrogated recourse claim of their own insurer, if the tortfeasor’s assets are insufficient to satisfy both claims in full; this applies, however, exclusively to the loss covered by the insurance contract, while the injured party in any case retains an independent, priority direct claim against the tortfeasor for loss items not covered by their own policy, such as pain and suffering or loss of earnings.