Recourse of the insurer against the negligent co-holder of a vehicle

Facts

H. K. was the chairman of the board of directors of the company H. AG, which had taken out comprehensive insurance (casco) with Winterthur-Versicherung for a company vehicle. On July 8, 1990, H. K. had a serious accident with this vehicle, causing a total loss. After H. AG had assigned its rights to the insurance indemnity to Mercedes-Benz Credit AG, Winterthur-Versicherung indemnified the latter for the entire damage, amounting to 70,130 francs. Winterthur-Versicherung then brought a recourse action against H. K. for a quarter of the damage, i.e. 17,532.50 francs.

Considerations

The Federal Tribunal ruled that Winterthur-Versicherung was entitled to exercise recourse against H. K. under Art. 72 IPA, as the latter had caused the accident through gross negligence. Although H. K. was the organ of the company H. AG, which was the policyholder, this does not prevent the existence of tortious liability between him and the company. The insurer may either reduce its benefits under Art. 14(3) IPA or first pay the full amount of the damage and then take recourse against the negligent organ under Art. 72 IPA.

Even if H. K. had acted as an organ of the company, the insurer could…