Facts

The life insurance company (the appellant) has filed an appeal against the judgment in favor of the insured (the respondent) in a dispute over an insurance contract in the event of incapacity for gain due to illness or accident.

The main facts are as follows

  • The insurance contract was concluded in October 1997.
  • The respondent failed to declare that he had occasionally consumed cannabis more than 10 years before the conclusion of the contract.
  • The respondent subsequently developed an obsessive-compulsive disorder, resulting in an incapacity for gain.
  • The appellant wanted to withdraw from the contract due to reticence in application of Art. 6 of the Federal Law on Insurance Contracts (LCA) in its version prior to January 1, 2006.
  • The appellant also invoked the nullity of the contract under Art. 9 LCA, on the grounds that the insured event had already occurred at the time of the conclusion of the contract.

Considerations

The Federal Tribunal dismisses the appellant's appeal.

Regarding the reticence, the Federal Tribunal considers that the question asked by the insurer was clear and that the respondent should have declared his occasional cannabis consumption. However, the Federal Tribunal considers that this consumption, which dated back more than 10 years and had had no impact on the respondent's health, did not constitute an important fact within the meaning of Art. 6 LCA. Indeed, occasional cannabis consumption is a trivial fact and it is inconceivable that an insurer would refuse to conclude a contract or impose unfavorable conditions for…