Facts
On June 24, 1989, A., who was insured for liability with the X. Insurance Company, caused a single-vehicle accident with his passenger car near Thun, in which the passenger B. suffered a serious injury. Since A. had concealed a conviction for road traffic offenses when signing the liability insurance application, the X. Insurance Company retroactively withdrew from the contract.
The Swiss Accident Insurance Institution (SUVA), with which B. was insured against accidents, sued the X. Insurance Company for reimbursement of the statutory benefits it had provided to B. The Court of Appeal of the Canton of Bern dismissed the claim and upheld the counterclaim of the defendant.
The Federal Court overturned the judgment of the Court of Appeal and upheld the partial claim of SUVA.
Considerations
The Federal Court decided that the exclusion of defenses under Art. 65 para. 2 of the Road Traffic Act benefits not only the directly injured party, but also the subrogating social insurance provider. This exclusion of defenses is to be understood as an accessory ancillary right that is connected to the claim and therefore passes to the social insurance provider when it enters into the rights of the injured party.
The Federal Court justified this by stating that neither the materials on the Motor Vehicle and Bicycle Traffic Act of 1932 nor the Road Traffic Act of…