Facts
Parties and proceedings: The appellant (insured person, represented by counsel) was party to a framework employment contract with the temporary employment company [C. AG] . He was deployed as a construction worker at [D. AG] (from 18 May 2015) and at [E. AG] (from 3 August 2015). [C. AG] had taken out a collective sickness daily allowance insurance for him with [B. AG] (respondent, insurer). On 27 February 2018 the insured person filed suit with the Social Insurance Court of the Canton of Zurich for daily allowance benefits of CHF 88'185.10 plus interest at 5% from 1 September 2017. The Social Insurance Court dismissed the claim by judgment of 4 March 2020. The insured person files an appeal in civil matters with the Federal Supreme Court and requests that the judgment be set aside and the claim upheld, alternatively remanded, and grants of free legal aid.
Accident and benefits of Suva: On 12 August 2015 the insured person fell at work and suffered injuries to the cervical and lumbar spine as well as to the left lower leg and foot. Suva accepted liability, provided medical treatment and daily allowances, and terminated them by decision of 13 September 2016 with effect from 31 August 2016, as the remaining complaints were no longer accident-related. The decision was not appealed.
Notification and rejection by the insurer: On 3 November 2016 [C. AG] notified the insurer that the insured person had been 100% unfit for work from 1 September 2016. The insurer obtained medical reports and a psychiatric expert opinion, on 20 December 2016 excluded sickness-related incapacity for work, and on 17 February 2017 refused benefits on the ground that the case was not covered by the insurance contract.
Points in dispute: The insured event (onset of sickness-related incapacity for work), the question whether the insured person was still insured at the time of onset (fixed-term deployment at [E. AG] ), the interpretation of the policy and the general insurance conditions (GIC, July 2010 edition), as well as the alleged arbitrary establishment of facts regarding state of health and the end of the deployment.
Lower court: The Social Insurance Court reasoned that the deployment contract with [E. AG] was limited to three months and had ended on 3 November 2015. The insured event had only occurred on 1 September 2016, when sickness-related incapacity for work began.
Considerations
Admissibility: Disputes arising from supplementary insurance to statutory health insurance are governed by the ISA and are of a private-law nature, so the appeal in civil matters pursuant to Art. 72 ff. FSCA is admissible. The decision of the Social Insurance Court, as the sole cantonal instance, is a final decision (Art. 90 FSCA) and may be appealed irrespective of the amount in dispute (Art. 74 para. 2 lit. b FSCA). The appeal was filed in time. The Federal Supreme Court examines only adequately substantiated complaints (Art. 42 para. 2 FSCA) and bases its decision on the facts established by the lower court unless they are manifestly incorrect (arbitrary) (Art. 105 FSCA).
Interpretation of the contract and insured event: The GIC must be interpreted according to general principles of contract interpretation: first the actual common intention of the parties, subsidiarily the principle of trust. According to case law and doctrine, the insured event in sickness daily allowance insurance does not occur with the illness itself, but only with sickness-related incapacity for work (BGE 142 III 671 consid. 3.6 et seq.). This understanding corresponds to the terms of Art. A4 GIC, which are modelled on Art. 3 and 6 GSSLA, and to the concept of voluntary daily allowance insurance under Art. 67 ff. ISA. The lower court therefore interpreted the contract in conformity with federal law.
Insured group of persons: The policy covers own and placed personnel of [C. AG] . For placed personnel, insurance cover does not begin already with the framework employment contract, but only with the contract with a deploying company, since one can speak of placed personnel only once they have been placed. Otherwise the distinction in the policy would make no sense. The lower court's interpretation is therefore not objectionable.
State of health and causation: Until 31 August 2016 Suva had recognised the incapacity for work arising from the pain condition, and also the effects of the reactivated depressive problems, as accident-related and had paid daily allowances. Sickness-related incapacity for work could therefore only occur on 1 September 2016, as decided in judgment 4A_447/2017 and 4A_459/2017 of 20 February 2018 consid. 3.7. A finding of fact is not arbitrary merely because another solution would be tenable; it must be manifestly…