Key elements of subrogation under Swiss law and French law

Under Swiss law, the subrogation of the insurer is regulated by the law, the Swiss insurance contract act, which has been revised. The revision has been enacted in January 2022. Since then, Switzerland has a subrogation of the insurer which kicks in at the moment the insurer pays for a claim for which it has an obligation under the policy. The subrogation is to the extent of the compensation that the insurer pays to its insured. It is also valid from the moment that the payment has been issued. The subrogation is only with regards to the so-called congruent claim.

Under French law, legal subrogation requires two conditions to be met : an actual payment of the indemnity and a mandatory payment, ie a payment made in fulfillment of the insurance contract. The risk must be covered by the policy. If payment is the consequence of a commercial gesture, the insurer can use the conventional subrogation. The implementation of the conventional subrogation requires that the date of the subrogation receipt coincides with the date of the indemnity payment. The condition of concomitance can be satisfied when in a prior agreement the insured expressed the wish that the insurer be subrogated to his rights at the time of payment.

Under Swiss law, there is an assignment of claim : the insurer can agree to an assignment of the claim that the insured has. This assignment of claim is subject to the general provisions of contract law. The scope of application is the Swiss code of obligation. There is no requirement that the payment must be at the same date as when the assignment has been executed.