Goodbye Gini/Durlemann – Switzerland rediscovers recourse

The Swiss Federal Supreme Court facilitates the recourse of the insurer.

 

Andreas Furrer and Raphael Brunner show in this article why transport insurers not only in other European countries but also in Switzerland should think about the development and organisation of recourse management.

The Federal Supreme Court has reorganised Switzerland's recourse landscape. After 64 years, the castle Gini/Durlemann has been stormed and probably also completely conquered. With immediate effect, there is no longer a limitation of recourse for an insurer in Switzerland in the event of claims arising from absolute or strict liability. This also will very likely apply to contractual liability claims.

With a landmark ruling on May 7, 2018, the Federal Supreme Court has finally and explicitly amended its own case law, which has existed since the notorious Gini/Durlemann ruling of 1954 (decision 4A_602/2017, published on 23 May 2018). With immediate effect, an insurer subrogates in the insured person's claims against any person who is liable for damage arising from absolute liability, strict liability or from any non-contractual liability (Art. 72 VVG). The insurer may enforce such claims in its own name. Previously, this was only possible if the person liable under an absolute or strict liability or under a contractual liability had caused the damage with gross negligence or intent.

With this decision, it may be assumed that the Federal Supreme Court has also opened the maritime insurer's recourse against a third party liable under contract. The Federal Supreme Court refers to corresponding doctrines without criticising them (cf. Recital 2.4). Rather, it expressly states that the integral subrogation of the insurer and thus the planned end of Gini/Durleman ruling was politically undisputed, both in the context of the complete revision of the Insurance Contract Act (ICA) and in the partial revision now planned (Art. 95c revICA).

From now on, maritime insurers should consider the development and organisation of their recourse management not only in European countries, but also in Switzerland.

The Trade Transport and Logistics Team of MME Legal | Tax | Compliance can support, advise and represent you in the enforcement of recourse claims through efficient, focused and cost-effective counsel. We would be pleased to provide you with a corresponding offer.

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