Setting aside of the judgment due to failure to grant an additional period for remedying a formal defect in the statement of defence in a daily sickness allowance insurance case

Facts

Parties and procedural history:

The appellant ([A. AG] ) is a public limited company offering supplementary insurance to social health insurance. The respondent ([B.] ) claimed against it before the Social Insurance Court of the Canton of Zurich (Chamber V) on 1 December 2021 for payment of contractual daily allowances for the period from 1 March 2021 to 30 November 2021, plus interest. The statement of defence of the appellant was signed on 1 April 2022 by [C.] , who is only authorised to sign collectively. The Social Insurance Court declared the statement of defence inadmissible due to the lack of valid signature and ordered the appellant to pay CHF 39,908.15 plus interest.

Legal remedy:

The appellant filed an appeal in civil matters with the Federal Supreme Court on 5 July 2022, alleging a violation of Art. 132 CPC and its right to be heard. It requested that the judgment be set aside and the case be referred back to the lower court to remedy the formal defect and supplement the facts. The respondent requested that the appeal be dismissed. The Social Insurance Court did not submit a response.

Considerations

Admissibility of the appeal:

The Federal Supreme Court examines the appeal in civil matters against the judgment of the Social Insurance Court of the Canton of Zurich. The dispute concerns supplementary insurance to social health insurance and constitutes a final decision by a single cantonal instance. The appeal is admissible under Art. 74 para. 2 lit. b FSCA regardless of the amount in dispute. The appellant does not make a substantive application but exclusively requests that the case be referred back to the lower court. The Federal Supreme Court cannot decide the matter itself, as it concerns the remedying of an alleged procedural defect. The request for referral is therefore admissible (cf. BGE 134 III 379 para. 1.3).

Legal assessment of the formal defect:

The Social Insurance Court declared the statement of defence inadmissible because it was not signed by a person authorised to sign individually CO by two persons authorised to sign collectively. It did not grant an additional period for remedying the formal defect under Art. 132 para. 1 CPC. The Federal Supreme Court finds that Art. 132 CPC also covers signing by a person not authorised to represent the party individually. The lower court should have granted the appellant an additional period to have the statement of defence signed by a second authorised signatory CO to submit a power of attorney.

Principle of the additional period and its limits:

The obligation to grant an additional period under Art. 132 para. 1 CPC serves to mitigate the strictness of procedural formalities and is based on the idea that a party has submitted a defective submission inadvertently CO unintentionally. However, there is no entitlement to an additional period in cases…