Consideration of the Regress Privilege in the Liability of a Non-Privileged Liable Party towards Social Insurance Providers

Facts

This judgment deals with the recourse of the Swiss Accident Insurance Institution (Suva), the Federal Disability Insurance (IV), and the Federal Old Age and Survivors' Insurance (AHV) against a liability insurance. The injured party suffered burns in a work accident, for which the social insurance providers provided benefits. They now seek recourse against the liability insurance of Gaswerk F. AG, which is alleged to be responsible for the damage.

The defendant, the liability insurance, argues that the employer of the injured party, C. AG, would also be liable for the damage. However, since the employer is only liable for recourse in cases of intent or gross negligence under Art. 75 para. 2 ATSG, its share is to be deducted from the recourse claim of the social insurance providers.

Considerations

The Federal Supreme Court states that the recourse privilege under Art. 75 para. 2 ATSG means that in cases of merely negligent conduct by the employer, the social insurance provider has no claim against him. Since solidarity between multiple liable parties is only possible in cases of multiple liability, the privileged employer is excluded from joint and several liability. The non-privileged liable party, here the defendant, is therefore solely liable to the social insurance provider for the entire liability amount.

However, the Federal Supreme Court sees reasons to reduce the liability of the non-privileged liable party. On the one hand, it is not justified in terms of evaluation that the social insurance provider can fully compensate itself from the non-privileged liable party, although the employer enjoys a recourse privilege due to the payment of premiums. On the other hand, the recourse privilege can be…