Limitation of Liability in Favor of Family Members in Recourse Claims by Social Insurance

Facts

Antonio Carrieri, the owner of a VW delivery van, was insured for his owner's liability with the "Basler" Insurance Company. On July 10, 1982, an accident occurred in the Aosta Valley, in which Carrieri's wife was killed. Their daughter Orietta has been receiving a survivor's pension from the Swiss Federal Old Age and Survivors' Insurance (AHV) since August 1, 1982.

On September 20, 1985, the AHV sued the "Basler" for payment of 28,249 francs plus interest, based on Art. 48ter AHVG. The Federal Supreme Court dismissed the claim.

Considerations

Pursuant to Art. 48ter AHVG, the AHV is subrogated to the claims that the insured person and their survivors have against the liable third party, up to the amount of its statutory benefits. However, Art. 129 KUVG (now Art. 44 para. 1 UVG) remains reserved.

The Federal Supreme Court states that, contrary to its wording and the statements on its origin, Art. 48ter para. 2 AHVG contains not merely a reservation clause, but a limitation of liability in favor of the family members mentioned in Art. 44 para. 1 UVG. This limitation of liability can be opposed to a recourse claim by the social insurance, regardless of whether the accident victim was insured with the SUVA or not.

The Federal Supreme Court justifies this by stating that the limitation of liability for family members pursuant to Art. 44 para. 1 UVG corresponds to…