Facts
In this case, the issue was the insurer's (Respondent 1) right of recourse against the property owner (Appellant) for benefits it had provided under a supplementary insurance to the mandatory health insurance. The Federal Court had to decide whether the insurer could exercise recourse against the causally liable Appellant based on Art. 51 para. 2 CO and Art. 72 ICA.
The Federal Court concluded that the insurer, which has assumed the compensation of the damage by contract, is a contractually liable or obligated party within the meaning of Art. 51 para. 2 CO and thus stands at the second level of the recourse order. It can therefore not exercise recourse against the causally liable party, who is liable without fault based on a statutory provision.
This practice corresponds to the clear intention of the historical legislator that the insurer, who is paid for possible claims through the premiums, shall generally bear the damage before a party liable without its fault. A change in this case law was rejected, as the insurance practice has adapted to the existing legal situation and a change in practice would require particularly weighty reasons.
Considerations
The Federal Court stated that a change in practice can regularly only be justified if the new solution corresponds to a better understanding of the ratio legis, changed external circumstances or a changed legal view. In the present case, these requirements were not met.
While the literature has criticized the existing practice and…