Facts
In this judgment, the Federal Supreme Court changes its previous jurisprudence and decides that the indemnity insurer, who enters into the rights of the injured party pursuant to Art. 72 para. 1 of the Insurance Contract Act (VVG), can take recourse against the tortfeasor. The case concerns a passenger who fell in a bus of the regional transport company [C. AG] and suffered a compression fracture. Her private supplementary insurance [A. AG] covered the costs of treatment and rehabilitation and subrogated the corresponding claims of the injured party.
The Commercial Court of the Canton of Bern had dismissed the claim of insurance [A. AG] against the liability insurer of the regional transport company [C. AG], the cooperative B. The Federal Supreme Court overturns this judgment and remands the case to the Commercial Court for further assessment.
Considerations
The Federal Supreme Court states that according to Art. 72 para. 1 VVG, the claim for compensation which the entitled person has against third parties due to a tort passes to the insurer to the extent that he has paid compensation. Fault on the part of the tortfeasor is not required, as the term "tort" within the meaning of Art. 72 para. 1 VVG covers all cases of non-contractual liability under Art. 41 et seq. of the Swiss Code of Obligations, including strict liability or simple causation liability.
The Federal Supreme Court sees deficiencies in the previous jurisprudence, according to which the indemnity insurer cannot take recourse against the tortfeasor. Instead, it follows the…