Liability Insurance: Assignability of the Insured's Exemption Claim and Interpretation of a Contractual Provision on the Scope of the Risk

Facts

On November 6, 1983, the then 16 and 15-year-old brothers Markus and Ernst H. broke into the sawmill of Z. AG and stole tools. They then smoked in the attic and caused a fire by the still-glowing cigarette butts. By penal order, the brothers were found guilty of repeated theft, trespassing, and negligent arson.

Z. AG subsequently filed a lawsuit against Basler Versicherungsgesellschaft to recover the damage of 222,634 francs. The Cantonal Court found that the defendant's liability under the insurance contract was given, whereupon Basler Versicherungsgesellschaft appealed to the Federal Supreme Court.

Considerations

The Federal Supreme Court decided that the insured's exemption claim against the insurance company can be assigned to the injured party, even if the liability has not yet been recognized or established by a court judgment. The assignment covers only the claim for payment of the liability amount, but not further rights such as the claim for legal protection.

Regarding the interpretation of the contractual provision that damages are not covered if the insured has caused them by the…