Facts
Contracting parties and subject matter of the contract: The complainant, born in 1954, took out a mixed insurance with surplus participation (tied pension insurance of pillar 3a) with the then Elvia Leben (now Allianz Suisse Lebensversicherungs-Gesellschaft AG, hereinafter: Allianz) on 5 February 1991. Policy No. xxx provided for a term of 28 years (1 January 1991 to 1 January 2019) and included a death CO survival capital of 500,000 francs each, as well as a quarterly disability pension of 21,000 francs in the event of occupational disability. The policy contained the note “Mixed insurance with surplus participation” and referred to the “Terms and conditions of the mixed insurance” (H 111.2 01.89) and the “Supplement to the insurance conditions” (H 102.2 01.91) as integral parts of the contract. These documents provided that the amount of the surplus participation depended on future, uncertain factors and was recorded in special supplements to the policy.
Payment of benefits upon expiry of the contract: Upon expiry of the insurance on 1 January 2019, Allianz paid the complainant a total of 550,694.20 francs: 500,000 francs as survival capital and 50,694.20 francs as surplus participation. The complainant, however, claimed an additional surplus participation of 435,000 francs and filed a claim for payment of this amount plus interest at 5% since 1 January 2019 with the Social Insurance Court of the Canton of Zurich on 19 March 2020.
Decision of the lower court: With judgment of 10 December 2021, the cantonal court dismissed the claim (operative part item 1) and ordered the plaintiff to pay the court costs of 4,000 francs (operative part item 2) and the defendant a party compensation of 5,000 francs (operative part item 3). The lower court justified its decision by stating that there was no contractual assurance of a surplus participation of 435,000 francs and that the complainant could not assert any claim based on liability in good faith. It also qualified the complainant’s conduct as frivolous litigation and based the imposition of the court costs on this.
Appeal to the Federal Supreme Court: The complainant appealed against the cantonal court’s judgment and requested the setting aside of operative part item 1 and the conviction of Allianz to pay 435,000 francs plus interest. In the alternative, he requested the case to be referred back to the lower court. He also sought the setting aside of operative part items 2 and 3. Allianz requested the dismissal of the appeal, while the Federal Social Insurance Office waived a statement.
Considerations
Jurisdiction and applicable law: The dispute concerns Allianz’s obligation to perform under a tied pension insurance of pillar 3a pursuant to Art. 82 para. 2 OPA and Art. 1 para. 1 lit. a OPO 3. The material jurisdiction of the occupational pension courts is given (Art. 73 para. 1 lit. b OPA), and the IInd Social Law Division of the Federal Supreme Court is the final instance (Art. 35 lit. e FSCR in conjunction with Art. 49 and 73 OPA). The appeal in public-law matters is admissible insofar as federal law has been violated (Art. 95 lit. a FSCA). The lower court’s findings of fact are binding on the Federal Supreme Court unless they are manifestly incorrect CO based on a violation of the law (Art. 97 para. 1 and Art. 105 FSCA).
No contractual basis for the claimed surplus participation: The complainant based his claim on an alleged assurance of a surplus participation of 435,000 francs, which he claimed had been given either at the time of conclusion of the contract CO in subsequent discussions. The Federal Supreme Court confirmed the lower court’s finding that the insurance contract did not provide for a specific amount of surplus participation. Rather, the amount of surplus participation was made dependent on future, uncertain factors, as is customary in life insurance policies. The policy referred to the “Terms and conditions of the mixed insurance” (H 111.2 01.89) and the “Supplement to the insurance conditions” (H 102.2 01.91), which contained no fixed assurance but a calculation method for the surplus participation. An internal letter from Elvia dated 14 March 1991, which mentioned a surplus participation of 485,000 francs, was qualified as an internal document that did not constitute an assurance to the insured. Nor could the complainant derive an assurance from a memo from Elvia dated March 1997, which merely mentioned a “probable surplus” of 149,927 francs. The lower court was therefore justified in not recognising any claim to an additional surplus participation of 435,000 francs.
No claim based on liability in good faith: The complainant argued that Allianz had left him in the dark about the performance objective of the policy, since the guaranteed survival sum of 500,000 francs was not sufficient to finance an old-age pension of 60% of his last earned income (80,000 francs per year). The Federal Supreme Court rejected this argument. It made clear that the tied pension insurance of pillar 3a does not aim to close the entire occupational pension gap, but only to cover part of it. Moreover, it was not apparent that the complainant could have paid the higher premiums required…