Recourse of Social Security Insurers against the Property Owner

Facts

On December 24, 2009, a serious work accident occurred in a building in V., in which an employee of B.A. AG was seriously injured. The Swiss Disability Insurance (IV) and the Swiss Old Age and Survivors' Insurance (AHV) paid the statutory benefits to the injured person. The two social security insurers then sued the owner of the property (A.A.) and demanded reimbursement of the benefits provided. The cantonal courts dismissed the claim, as they considered the employer's recourse privilege under Art. 75 para. 2 ATSG to be applicable. The Federal Supreme Court dismissed the appeal of the social security insurers.

Considerations

The Federal Supreme Court upheld its case law according to BGE 143 III 79, according to which even a non-privileged liable party can invoke the employer's recourse privilege, insofar as the fault would have had to be internally assumed by the employer without this privilege. A change in this practice is not justified, as it does not contradict the ratio legis, changed external circumstances or a changed legal view.

The Federal Supreme Court also considered the application of the step-by-step regulation according to Art. 51 para. 2 CO to be justified. A rigid application of this provision would not contradict the special circumstances…