Facts
The general partnership A + T Andres + Thommen (later A + T Andres + Thommen AG; today IC Unicon AG) concluded a "broker and advisory contract" with the Swiss Bank Staff Association (SBPV) in the fall of 1990. According to this, the general partnership was obliged to advise the SBPV on insurance-related matters and to act as an intermediary. In return, it was to receive a brokerage fee paid by the insurance company.
Through the mediation of the general partnership, a collective agreement was concluded on December 20, 1990 between the SBPV and the "Schweizerische Grütli" health insurance fund (later Visana). The "Grütli" had assured the general partnership of a "broker compensation of 3% of the annual premiums" and had paid this remuneration until the end of January 1994.
On January 25, 1994, the SBPV terminated the cooperation with the general partnership. Thereupon, the "Grütli" ceased the brokerage fee payments. A + T Andres + Thommen AG then filed a lawsuit against Visana to obtain the outstanding brokerage fee for January 1994 in the amount of CHF 33,659.80.
Considerations
The Federal Supreme Court decided that the relationship between the general partnership and the insurance company cannot be qualified as an independent brokerage contract within the meaning of Art. 412 et seq. of the Swiss Code of Obligations (OR). The general partnership acted as an insurance broker, who was primarily commissioned by the policyholder (SBPV) and had to represent its interests.
The brokerage fee is connected to the advisory mandate of the insurance broker and therefore does not lapse only upon termination of the insurance contract,…