SWITZERLAND Law and Practice Contributed by: Jodok Wicki, Daniel Zemp, Fabienne von Moos and Doruntina Dembogaj, CMS von Erlach Partners Ltd
4.10 Casualty Coverage Trends Casualty coverage practice shows increasing judicial attention to the precise statutory/policy definition of insured perils, in particular where occurrences are distinguished from gradual deterioration, which may be construction-related, maintenance-related or insuf- ficiently linked to one clear event. As a more procedural point, note the possibility of third-party notice or third-party claims ( Streitverkünd- ungsklagen ) where parties to the dispute may want to seek indemnity if a claim could fail or, alternatively, where a claim may later raise recourse or indemnity issues. Apart from coverage, a second recurring cluster con- cerns how much is payable: repair cost, reconstruc- tion cost, depreciation, estimates and the relationship between statutory valuation rules and actual reinstate- ment, which may be affected by the policy wording. 5. Claims Against Insureds 5.1 Key Exposure Areas for Insureds Principal Exposure Areas Liability claims against insureds in Switzerland are concentrated in the following areas: • general and product liability; • professional indemnity; D&O claims frequently combine shareholder, insolven- cy and regulatory allegations, sometimes across sev- eral policy years and jurisdictions; professional liabil- ity disputes often involve substantial technical expert evidence and extensive documentary records. Motor vehicle liability remains a high-volume category under the strict liability regime of Article 58 of the Road Traf- fic Act (SVG) and the statutory direct action regime of Article 65 of the SVG. Construction losses regularly involve owners, contractors, subcontractors, design- ers and project managers, with multiple insurers responding to the same event under different policy • directors’ and officers’ (D&O) liability; • construction and infrastructure losses; • cyber and data-related claims; and • (increasingly) environmental damage.
vision distinguishes tied and untied intermediaries; untied intermediaries with a fiduciary relationship to policyholders must register, and intermediaries have information, training and continuing-education duties. An MGA or TPA does not by itself alter the insurer’s obligations, and a broker does not remove the need for precise questions and exclusions. 4.9 Financial Lines Coverage Trends Increasing numbers of claims are being observed across several kinds of financial lines policies. In D&O policies, the increase is triggered first by the growing numbers of corporate insolvencies and restructurings since 2023. Swiss trustees commonly pursue direc- tors under the specific statutory grounds of Articles 754 and 755 of the CO, which provide certain pre- sumptions in the trustee’s favour. This dynamic is observable in claims pertaining to side A of the D&O cover, in instances where no corporate indemnifica- tion is available. Common denominators are increased standards of duties imposed on companies, reflecting on the duties of D&Os, and more financial pressure, which results in acceptance of higher risks. Thematic recurrences within the domain of policy triggers are the interplay of exclusions pertaining to the insured parties, conditions necessitating prior knowledge, and long-tail risks. D&O claims are also often seen when coverage under a crime or PI policy may not be avail- able. Warranty and indemnity (W&I) insurance is being used with increasing frequency in Swiss M&A transactions. This is in part due to rising insolvency rates affecting target companies, which has resulted in an increase in W&I claims relating to financial statement breaches, undisclosed liabilities, and tax exposures. The crux of coverage disputes lies in the interpretation of the scope of the seller’s warranties, the application of knowledge qualifiers, and the delineation between matters that have been disclosed and those that remained undisclosed. Finally, there has been an important rise in cyber claims, with a multitude of different claim scenarios, spanning from the classical ransomware attack to business email compromise and social engineering.
233 I NSURANCE L I T IGATI O N 2026
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