SWITZERLAND Trends and Developments Contributed by: Jodok Wicki, Daniel Zemp, Fabienne von Moos and Doruntina Dembogaj, CMS von Erlach Partners Ltd
CMS Switzerland Dreikönigstrasse 7 PO Box
8022 Zurich Switzerland
Tel: +41 44 285 11 11 Fax: +41 44 285 11 22 Email: contact@cms-vep.com Web: cms.law
Introduction Swiss insurance litigation is being reshaped by the interaction of the 2022 partial revision of the Swiss Insurance Contract Act (ICA), the Federal Supreme Court’s 2025 transitional law decision and a more organised claimant environment. The common thread is a shift from disputes confined to the insurer and pol- icyholder towards proceedings in which injured per- sons, employees and multiple insurers may enter the same dispute. The following developments are par- ticularly relevant to liability insurers and the lawyers handling coverage, subrogation and benefit claims. Direct Action Rights: A Broader Route to the Liability Insurer With the partial revision of the Swiss Federal Insurance Contract Act (ICA) beginning 1 January 2022, Article 60, paragraph 1bis of the ICA has given an injured third party, or that party’s successor, a direct claim right against the liability insurer of the person allegedly liable. The claim exists only within the available policy coverage and remains subject to the objections and defences that the insurer may raise under the statute or the policy. Before the reform, direct claims were primarily found in sector-specific legislation, notably the Road Traffic Act (SVG) and other analogous pro- visions such as the Nuclear Energy Liability Act and the Hunting Act, among others. The reform therefore extends a familiar mechanism beyond road traffic and other regulated risks to liability insurance generally, including claims for personal injury, property damage and pure economic loss. The reform does not turn the insurer into a prima- ry tortfeasor. The claimant must still establish the
insured’s liability and the existence of relevant cover- age; the direct claim cannot exceed the underlying liability. Its legal character remains debated: the pre- vailing view treats it as a statutory claim sui generis, while another view sees the claimant as enforcing the insured’s coverage claim. The distinction matters for questions such as jurisdiction and limitation, but the practical point is common to both approaches: the claim is anchored in both the liability relationship and the policy. The claimant may proceed against the insurer, the insured, or both. The difference from the motor vehicle liability regime is material. Article 65 of the SVG broadly prevents the insurer from relying on defences arising from the policy or the ICA. The new general right to bring a direct action under Article 60, paragraph 1bis of the ICA does not provide for such a bar. In the case of non-mandatory liability insurance, the insurer can therefore invoke statutory defences, in particular, but not limited to, those based on the Insurance Con- tract Act and the Swiss Code of Obligation, as well as contractual defences. Typical examples include inten- tional or grossly negligent causation (Article 14, ICA), material increase of risk (Article 28, ICA), non-payment of premiums, deductibles, exclusions and sublimits. Article 59, paragraph 3 of the ICA creates a narrower exception for mandatory liability insurance: defences based on intentional or grossly negligent causation, breach of obligations, non-payment of premiums and a contractual deductible cannot be raised against the injured person. The list is not a general waiver of cov- erage defences; issues such as territorial or temporal scope remain capable of being disputed.
243 I NSURANCE L I T IGATI O N 2026
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