Facts
On October 31, 1997, E.M. concluded a health insurance contract with X. Insurance, which also included supplementary insurance for extended nursing care, private hospital stays, and alternative medicine. E.M. had already been diagnosed with polyarthritis in 1990, but it did not show any symptoms between January 1991 and autumn 1997. On January 13, 1998, E.M. sought medical treatment again due to joint pain, and a chronic polyarthritis with moderate inflammatory activity was diagnosed. X. Insurance subsequently retroactively terminated the supplementary insurance policies, as the complaints had already existed prior to the conclusion of the contract.
E.M. filed a lawsuit against X. Insurance with the aim of obtaining the contractually agreed benefits from the supplementary insurance policies. The insurance court partially upheld the claim, as E.M. had not violated the duty to disclose. X. Insurance appealed against this judgment.
Considerations
The Federal Supreme Court dismissed X. Insurance's appeal. It stated that according to Art. 9 of the Swiss Insurance Contract Act (VVG), an insurance contract is void if the feared event had already occurred at the time of the conclusion of the contract. In health insurance, the risk against the consequences of which the insured person is insured is the illness of the insured person.
Although E.M. did not show any symptoms between 1991 and 1997, her illness was to be regarded as a single event from a medical point of view, as the risk of relapses existed. The reappearance of the symptoms in 1998 therefore did…