Facts
The claimant concluded a supplementary insurance policy with the defendant for the risks of death or disability due to accident. On 20 June 1993, the claimant was the victim of an accident in Spain as a passenger in a vehicle driven by her friend. In view of the negotiations on the degree of disability and the insurance indemnity to be paid, the defendant mandated Prof. [B.], a specialist surgeon, to examine the claimant. Based on this expert report, the parties concluded a compensation agreement on 28 October 1996 providing for the payment of CHF 196,000.- for a disability rate of 37%. Subsequently, the claimant had herself re-examined and produced new medical reports concluding a disability rate between 88.5% and 92%. She therefore requested that the compensation agreement be declared null and void due to an error on the motives and that the defendant be ordered to pay her CHF 584,000.- (the difference between CHF 780,000.- and the CHF 196,000.- already paid).Considerations
A compensation agreement cannot be invalidated when the error relates to a point that was disputed and had to be settled by transaction (caput controversum). If, based on an expert opinion, the parties have taken into account an incorrect state of facts, there may be a material error. Partial invalidation of the contract is possible if its content is subjectively and objectively divisible, so that the remaining part constitutes in itself a contract that has meaning.
In the present case, the parties considered the findings of the [B.] expert report (in connection with the compensation scale of the defendant's general insurance conditions) as the…