Facts
On April 13, 1999, Z. suffered a traffic accident. With a claim notification dated January 20, 2000, she asserted claims for loss of earnings against the X. Insurance Company. The insurance company then requested a transcript of Z.'s medical history from her general practitioner. On March 23, 2001, Z. filed a lawsuit with the Cantonal Court of Nidwalden against the X. Insurance Company for payment of the loss of earnings. The Cantonal Court initially dismissed the claim and obliged Z. to disclose the names and addresses of her former health insurance companies to the insurance company. Z. appealed against this judgment, whereupon the High Court of the Canton of Nidwalden overturned the decision of the Cantonal Court.
Z. then applied to the Federal Court to set aside the judgment of the High Court and to order the insurance company to pay the claimed amount.
Considerations
The Federal Court decided that the policyholder's duty of disclosure under Art. 39 para. 1 VVG (Swiss Insurance Contract Act) only covers facts that are relevant to determining the circumstances of the occurrence of the loss or to establishing the consequences of the event. It does not extend to circumstances that could be relevant to a possible breach of the duty of disclosure by the policyholder.
The Court further stated that Art. 6 VVG, which grants the insurer a right of withdrawal in the event of a breach of the duty of disclosure, does not provide for any facilitation of proof in the form of a duty of cooperation of the…