Facts
Parties and facts:
The claimant (appellant) underwent hand surgery performed by Prof. Dr. med. C. on 26 February 2014 due to pain in her right hand. Post-operative complications arose, leading to further medical interventions. The claimant later asserted claims for negligent medical treatment against the liability insurer of Prof. Dr. med. C., B. AG (defendant, respondent), relying on the direct right of action under Art. 60 para. 1bis IPA and sought damages of CHF 35,000.- plus interest at 5% from 26 February 2014.
The insurance contract between Prof. Dr. med. C. and B. AG was concluded before the entry into force of the amendment to the Insurance Contract Act (IPA) of 19 June 2020. The harmful event (the surgery) also occurred before that date. The defendant contested its liability, arguing that the direct right of action under Art. 60 para. 1bis IPA did not apply to the present case.
The Commercial Court of the Canton of Bern dismissed the claim with a decision dated 6 March 2024 due to lack of liability of the defendant. The claimant appealed against this decision to the Federal Supreme Court in civil matters.
Considerations
Interpretation of the transitional provision Art. 103a IPA: The Federal Supreme Court examined whether the direct right of action under Art. 60 para. 1bis IPA applies retroactively to insurance contracts concluded before 1 January 2022. The transitional provision Art. 103a IPA stipulates that for contracts concluded before the entry into force of the amendment of 19 June 2020, only the formal requirements and the right of termination under Art. 35a and 35b IPA of the new law apply. A retroactive application of other provisions, in particular the direct right of action under Art. 60 para. 1bis IPA, is excluded by law.
Literal and systematic interpretation: The wording of Art. 103a IPA refers to "contracts" and could be understood as covering only contractual provisions. However, the IPA does not only govern the contractual relationship between the policyholder and the insurer, but also legal relationships with third parties, such as the direct right of action under Art. 60 para. 1bis IPA. The term "contracts" in Art. 103a IPA must therefore be interpreted broadly and also includes statutory claims of third parties that presuppose an insurance contract. The transitional provision thus conclusively stipulates that for contracts concluded before 1 January 2022, the old law continues to apply unless express exceptions are provided for in Art. 103a IPA.
Teleological and historical interpretation: The legislator’s primary aim with the partial revision of the IPA was to improve the position of the policyholder. A retroactive application of the direct right of action to existing contracts would not be systematically justified, as it would lead to unequal treatment between policyholders and injured third parties. Moreover, historical interpretation shows that in the failed draft for the total revision of the IPA in 2011, the direct right of action was expressly intended to apply retroactively.…