Facts
The appellant, [A.] , filed a lawsuit against [X.] Insurance Company with the Civil Court of the Lake District on October 9, 2006, based on an insurance contract (collective daily sickness benefit insurance). At the same time, he requested free legal aid and the appointment of Attorney Stolkin as his free legal representative. The lower court, the Cantonal Court of Fribourg, dismissed the appellant's appeal against the refusal of free legal aid. The appellant files a civil law appeal with the requests that the judgment of the lower court be set aside and that the lower court be ordered to grant him free legal aid with the appointment of a free legal representative.
The parties are [A.] (appellant) and [X.] Insurance Company (defendant). The proceedings were conducted before the Civil Court of the Lake District and subsequently before the Cantonal Court of Fribourg. The appellant also requests free legal aid and the appointment of a lawyer for the proceedings before the Federal Court.
Considerations
The Federal Court must examine whether the lower court rightly refused free legal aid. The lower court assumed that the appellant's action was futile because the defendant could make its obligation to perform dependent on the appellant undergoing an examination by a doctor designated by the defendant at the expense of the insurance. The appellant refused this examination.
The Federal Court has established that the lower court correctly assessed the futility of the action. The appellant's refusal to undergo the contractual obligation to be examined by a doctor designated by the defendant leads to the exclusion of the benefits he claims with his action, according to the contract terms. The lower court correctly declared the action futile for this reason and refused the appellant free legal aid and representation without violating Art. 29 para. 3 Cst.
The…