Facts
The Portuguese national [O.] had been working as a seasonal worker in a vegetable farming business in Switzerland since 1989. As an employee, he was compulsorily insured against occupational and non-occupational accidents with Winterthur Swiss Insurance Company. In late autumn 1991, [O.] returned to his family in Portugal. On March 1, 1992, he traveled to Switzerland to take up his seasonal position. On the A1 motorway Bern-Zurich, he was seriously injured in a traffic accident. Winterthur rejected its obligation to provide benefits, as [O.] had not yet taken up his employment at the time of the accident and therefore there was no insurance coverage.
[O.] argued that Winterthur had failed to fulfill its obligation to inform him about the possibility of taking out a leave of absence insurance for the period during which the employment relationship was dormant. Therefore, based on the principles of good faith, Winterthur should be obligated to provide benefits as if the leave of absence insurance had been taken out.
Considerations
The Federal Supreme Court states that according to case law and doctrine, no direct obligation of the insurer to inform the insured about the possibility of taking out a leave of absence insurance can be derived from Art. 3 para. 3 AICA. The legislator intended this provision merely to regulate the insurer's authority to offer a leave of absence insurance, not to establish an information obligation.
However, according to Art. 72 OAICA, the insurer has the duty to sufficiently inform the employer about the implementation of the…