Facts
The plaintiff, a daily sickness benefit insurance, had concluded a collective health insurance contract with the defendant, an employee. The defendant was employed by [Z.] as a telephone operator from October 2008 and had been absent due to illness since November 2008. The plaintiff paid a daily allowance based on an incapacity for work of 100% from December 2008. After a medical examination by Dr. med. [W.] in August 2009, the plaintiff reduced the daily allowance to 50% and later discontinued it.
The defendant sued the Social Insurance Court of the Canton of Basel-Stadt for payment of CHF 50,633.15 plus interest of 5% from April 24, 2010. The Social Insurance Court upheld the complaint. The plaintiff appealed to the Federal Supreme Court.
Considerations
The Federal Supreme Court examined the plaintiff's liability and came to the conclusion that the lower court had rightly obliged the plaintiff to pay the defendant daily allowances based on an incapacity for work of 100%. The plaintiff had not proven that the defendant had violated his duty to mitigate damages.
The Federal Supreme Court stated that the lower court had correctly evaluated the evidence and that the plaintiff had not proven that the defendant had not sufficiently justified his incapacity for work. The plaintiff had also…