SWITZERLAND Trends and Developments Contributed by: Jodok Wicki, Daniel Zemp, Fabienne von Moos and Doruntina Dembogaj, CMS von Erlach Partners Ltd
The new regime is not absolute. The injured party’s priority right in quota recovery ( Quotenvorrecht ) remains decisive: if the claimant is not fully compen- sated, the insurer’s recourse must yield to the uncov- ered balance and can reach only what remains of the liable party’s claim. Article 95c, paragraph 3 of the ICA also preserves a recourse privilege for a person in a close relationship with the insured who caused the loss through slight negligence. It identifies house- hold members, employees and authorised users of the insured property, while allowing other close relation- ships on the facts. The privilege does not extend to gross negligence and limits the insurer’s subrogation; it is not a general release as against the injured party. As discussed above, BGE 151 III 35 therefore cre- ates a durable two-track system. In each case, claims teams should identify the policy funding the payment and determine whether it was concluded, replaced or materially renewed before or after 1 January 2022. In construction losses involving owners, contractors, subcontractors, designers and project managers, insurers responding to the same event may face differ- ent recourse rules because their policies have differ- ent histories. Policy schedules, renewal endorsements and claims-made wording should be checked before a recourse position is taken.
Despite the broader statutory basis, the new recourse potential appears underused. Insurers have reported that, years after the revision, established workflows, including the former recourse cascade, still dominate day-to-day handling. Strategic inertia, the transitional divide and uncertainty about the liability insurer’s posi- tion help explain the caution. Insurers with post-2021 policies should revisit recourse protocols at first notice of loss, map contractual chains, preserve expert and limitation evidence, and assess claims against sub- contractors, designers and project managers without assuming that gross negligence is required. The inter- action of two policy-date regimes, integral subroga- tion, victim priority and the unresolved liability-insurer question make this a technically demanding area of Swiss insurance law. Specialised advice is essential before recourse is abandoned, settled or pursued.
247 I NSURANCE L I T IGATI O N 2026
CHAMBERS.COM
Powered by FlippingBook