Facts
This case involved a double insurance situation, where the same interest against the same risk and for the same period was insured with more than one insurer, so that the total insurance sums exceeded the insured value. The legal predecessor of E. AG was insured both by the A.H. policy of A. and the Lloyd's H. policy of Lloyd's Underwriters, London (collectively referred to as the "H. policies"), as well as by the B. policy of B. Ltd. After a loss to a gas turbine of Unit 3, A. and the Lloyd's Underwriters, London together paid USD 4,968,095. B. Ltd. made no payment. A. and the Lloyd's Underwriters, London then filed a lawsuit against B. Ltd. to obtain further payments. The Commercial Court of the Canton of Zurich concluded that there was a double insurance under Art. 53 VVG and that the insurers' liability was therefore governed by Art. 71 para. 1 VVG. However, the lower court qualified the H. policies and the B. policy as property insurances, and therefore calculated the liability not according to the ratio of the insurance sums, but according to the ratio of the payments of the individual insurers to the total payment of all property insurers, contrary to the wording of Art. 71 para. 1 VVG.Considerations
The Federal Supreme Court reached the following conclusions: - The H. policies and the B. policy are property insurances, as there is a relationship between the agreed insurance sum and a property value limiting the amount of the loss. -…