SWITZERLAND Trends and Developments Contributed by: Jodok Wicki, Daniel Zemp, Fabienne von Moos and Doruntina Dembogaj, CMS von Erlach Partners Ltd
ICA, where standing and proof of loss have recently been tested by the Federal Supreme Court. Article 33 of the ICA: Precision in Coverage Exclusions Article 33 of the ICA starts from broad coverage: the insurer is liable for events bearing the characteristics of the insured risk unless particular events are exclud- ed in precise and unambiguous language. The rule reaches both secondary risk limitations (exclusions) and primary descriptions of what is insured. It is not a licence to choose the policyholder’s preferred reading whenever a dispute arises. Courts first apply ordinary contractual interpretation and the trust principle; only where those methods leave two or more seriously ten - able readings does the ambiguity rule operate. Recent precedent illustrates the limits of generic drafting. Catch-all references to any breach of law or any prohibited act may fail to identify the risk the insurer intended to remove. Conversely, a clause is not ambiguous merely because its application is con- tested. The court will distinguish interpretation of the contract from applying a clear term to the facts. The unusualness rule remains a separate control: in BGE 138 III 411, halving daily benefits for psychological ill- ness was held to defeat legitimate coverage expecta- tions. The result depends on the wording, the product and what an insured could reasonably expect, not on a presumption that every limitation is invalid. An important principle in this regard concerns who drafted the wording. In industrial insurance, brokers and policyholders may provide bespoke terms rather than simply accept an insurer’s standard conditions. Recent commentary and the Federal Supreme Court’s formulation of Article 33 as a specific application of in dubio contra stipulatorem support the view that the risk of unresolved ambiguity lies with the party that formulated the clause. For insurers, the practical lesson is not merely to expand exclusions, but to define them. Policy word- ing should identify the excluded conduct or event, the required causal connection and any interaction with related coverages, sublimits and obligations. Drafting history and broker involvement should be retained. A clause that is clear but commercially restrictive may
still be enforceable; a clause that is unclear may be construed narrowly or, where it is unusual and not properly incorporated, disregarded. Article 33 dis- putes will therefore continue to turn on disciplined drafting and evidence of the contracting process. Subrogation and Recourse Under Old and New Policies The policy date, rather than the date of loss, is the starting point in Swiss insurance recourse. Under for- mer Article 72 of the ICA, the insurer was subrogated, to the extent of its indemnity, to the insured’s claim against third parties arising from “unlawful acts”. The Federal Supreme Court’s Gini / Durlemann line (BGE 80 II 247) treated that wording as a limit where the third party was liable in contract: recourse generally required intent or gross negligence. BGE 144 III 209 later extended Article 72 to all extra-contractual liabil- ity, including strict and causal liability, but left con- tractual debtors unresolved. BGE 151 III 35 from 27 January 2025 confirms that Article 103a of the ICA is exhaustive. For policies concluded before 1 January 2022, former Article 72 of the ICA therefore continues to govern, including the Gini / Durlemann restriction. The Federal Supreme Court’s emphasis on the legis- lature’s qualified silence against retroactive effect of Article 95c makes further judicial relaxation for old-law policies unlikely. For policies concluded from 1 January 2022, Article 95c of the ICA establishes integral subrogation. At the time and to the extent of its payment, the insurer enters into the insured’s rights for congruent, “same- nature” heads of damage. The provision is no longer confined to unlawful acts. Recourse may therefore be pursued against any liable third party, including a con- tractual debtor such as a subcontractor liable under a works contract (Articles 363 et seq of the CO). For the property or indemnity insurer, Article 95c of the ICA is the special and exhaustive basis for subrogation and former Article 51 of the CO recourse hierarchy no longer limits the claim. The Gini / Durlemann bar - rier is thus removed for new law policies, subject to proof of liability, causation, damage and congruence. The position of the liability insurer is more nuanced: it may be subrogated into the insured’s own recourse or allocation rights, but whether Article 95c governs every internal recourse scenario remains contested.
246 I NSURANCE L I T IGATI O N 2026
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