Employer's Liability Privilege in Direct Claim against the Insurer

Facts

On April 19, 1990, A., an employee, caused a single-vehicle accident with her employer's company car and sustained injuries. The employer is insured for liability with the X. Insurance Company as the vehicle's keeper. On April 1, 1999, A. filed a partial claim against the X. Insurance Company, requesting the defendant to be ordered to pay a satisfaction of CHF 50,000 minus the integrity compensation to be paid by the SUVA. The District Court of Lucerne-City and the High Court of the Canton of Lucerne dismissed the claim, as according to Art. 44 para. 2 AOIA, the defendant is not liable because it cannot be accused of any fault in the accident.

Considerations

According to Art. 44 para. 2 AOIA, the compulsorily insured employee has a tort claim against their employer from an occupational accident only if the employer has caused the accident intentionally or through gross negligence. The Federal Supreme Court upholds this case law, according to which Art. 44 para. 2 AOIA contains both a liability and a recourse privilege.

The injured party's direct right of claim against the insurer under Art. 65 RTVA does not change this. For the right of claim does not go beyond the compensation claim against the tortfeasor himself. The insurer is liable under the same conditions and to the same extent as the vehicle keeper or tortfeasor. Analogous to the…