Facts
A., born in 1945, has been receiving compulsory accident insurance under the AIA as well as supplementary accident insurance from X. Insurances since 1997, providing for the payment of daily allowances in the event of an accident. She also benefits, with the same insurer, from a "collective daily allowance insurance in case of illness", subject to the ICA.
Following an accident on November 5, 2002, the insurer paid the insured daily allowances based on the compulsory and supplementary accident insurance. From September 18, 2003, it considered that the persistent disorders were related to illness and paid the insured daily allowances based on the loss of earnings illness insurance.
On January 7, 2005, the insurer asked its insured to file a claim for disability benefits and to confirm it to him before January 31, 2005. On February 23, 2005, it informed its insured that her right to daily allowances in case of illness would be exhausted on September 1, 2005 and reiterated its request to report the case to the disability insurance, while specifying that failing this, it would offset a "pseudo-disability annuity" on the benefits due.
On June 20, 2005, the insured suffered a new accident, for which the insurer granted daily allowances based on the compulsory and supplementary accident insurance until September 30, 2005, however deducting a hypothetical disability annuity from these benefits.
Considerations
The Federal Court considered that in a daily allowance insurance in case of illness subject to the ICA, designed as a lump-sum insurance, an offset by the insurer of the benefits to which the insured could be entitled from another insurer cannot be based on Art. 61 para. 1 ICA, but it can be provided…