Facts
A. (the appellant) was insured against the consequences of work incapacity due to illness through his sole proprietorship C. under a collective health insurance contract with B. AG (the respondent). With a notification of illness dated April 13, 2016, he informed the respondent that he had been unable to work since April 4, 2016 due to stress and back pain. Based on medical certificates of incapacity to work, the insurer paid daily allowances in the amount of CHF 47,509.- from April 18, 2016 to January 31, 2017. After the insurer became aware that the insured had caused a rear-end collision during a taxi ride on May 21, 2016, it retroactively withdrew from the contract due to fraudulent justification of the claim under Art. 40 VVG (Insurance Contract Act) by letter dated March 14, 2017 and demanded the repayment of the daily allowances already paid in the amount of CHF 48,930.50.
Considerations
The Federal Supreme Court holds that the standard of proof of the preponderance of probability applies to the insurer's burden of proof of the intent to deceive. For the insurer's burden of proof of the insured's…