Disability Insurance: Binding Nature of the Insurance Contract in the Event of Intentional Deception

Facts

The appellant, [A.] , concluded a collective disability insurance policy with the respondent, [B. AG] , on June 20, 2014. The insured person was only himself. The insurance began on June 20, 2014, and a daily allowance of 100% of a fixed annual salary of CHF 102,000 was applied for. The annual premium was CHF 2,583.70. The respondent approved the application and issued the policy.

The appellant had registered a sole proprietorship for various services in the sanitary sector in September 2000, which was first declared bankrupt in January 2002 and then discontinued due to lack of assets in April 2002. The appellant continued to operate his business. In February 2008, bankruptcy was declared again and discontinued due to lack of assets in April 2008. At the end of April 2008, the company was deleted ex officio, as the business operations had ceased.

After concluding the insurance contract, the respondent paid daily allowances from July 29, 2015, to April 30, 2016, and from November 9, 2016, to December 31, 2016, due to 100% and partially 50% incapacity for work. In early 2017, it obtained an extract from the appellant's individual account (IK) and found that it contained income from employment with various employers, but not from self-employment, for the years 2012 to 2015.

The respondent requested insight into the appellant's books. In response, the appellant stated that he was canceling the insurance contract, as he was reorienting himself professionally. After the respondent had obtained information about the individual account from the compensation office, it informed the appellant in a letter dated February 13, 2017, that according to this extract, he had never had the status of a self-employed person. Therefore, the insured risk was lacking, and the basis for the conclusion of the insurance contract was missing. Since the appellant had induced the respondent to conclude the contract through intentional deception, the contract was not binding for the respondent pursuant to Art. 28 Abs. 1 CO and was retroactively canceled.

The respondent demanded that the appellant pay CHF 77,705.20 for the benefits provided, consisting of CHF 73,356.65 from the first claim and CHF 11,667.25 from the second claim, minus the insurance premiums paid of CHF 7,318.70.

The Social Insurance Court of the Canton of Zurich upheld the respondent's complaint. It concluded that, contrary to the respondent's opinion, it could not be assumed without further investigation that the appellant had not been self-employed at all since June 20, 2014. However, he had carried out self-employment as a secondary occupation to bridge periods when he was not employed as an employee.

Considerations

The Federal Supreme Court applies the law ex officio (Art. 106 Abs. 1 FSCA). However, it generally only examines the objections raised, taking into account the general requirements for grounds (Art. 42 Abs. 1 and 2 FSCA), unless the legal defects are immediately apparent.

The appellant essentially complains of a violation of Art. 247 Abs. 2 CPC. He relies on the case law of the Federal Supreme Court (judgment 4A_676/2016 of April 20, 2017, E. 2.3.1) and argues that if the statements of the opposing party allow for a substantive denial and a party does not make use of this, it means that they have nothing to counter the opposing party's assertions and the assertions are considered unchallenged.

The Federal Supreme Court bases its judgment on the facts established by the lower court (Art. 105 Abs. 1 FSCA). This includes both the findings on the disputed facts and those on the course of the preceding and first-instance proceedings, i.e., the findings on the procedural facts (BGE 140 III 16 E. 1.3.1 S. 17 f. with references).

The appellant is of the opinion that the lower court should have taken into account the missing assertions regarding the qualification of self-employment as a secondary occupation and the factual questions in…