Carer claims / congruency; credit of social security insurance benefits

“The reasons expounded in the prevailing doctrine for the application of the congruency principles also finds pertinence in carer claims, in particular since there is no clear and established practise in the rulings by the federal court.  The court therefore follows the prevailing scholarly opinion and the aforementioned decision by the regional court of appeals from 14.02.2013 (CIV 12 2329), which in regard to the extra systemic coordination in accordance with civil liability also applies to the principles of congruency for invalidity cases. It follows that in the case of crediting social security insurance benefits, the personal and event related timing congruency should bear consideration. In addition, the plaintiffs’ due survivor benefits from the mandatory personal-accident insurance and occupational pension schemes can only be credited through pension claims from earnings, since these can only be factually congruent in this regard. Specifically for survivor benefits from the old age and survivors' insurance (AHV), it is the occupation of the deceased that leads to a differentiation. The person was fully employed before the accident.  As the plaintiffs have themselves applied for the credit of the old age and survivors’ insurance pension to each 50% on occupational and household claims and therefore to the benefit of the defendant - contrary to the prevailing doctrine- waiving the full credit of the old age and survivors’ insurance pension for the loss of earning capacity, deems further commentary unnecessary. “

The court will not for the purpose of assessing the credit of the carer claims apply the omni or poly-congruency principle. 

“Thus, the plaintiffs are only to be credited with the benefits from social security insurance, or alternatively deducting the total damages that are personal, event-related, factually and time-specifically congruent and for which also subrogation as well as regression claims could be conceivable.”

By judgment of march 26, 2015 the supreme court of the Canton of Berne has confirmed the first instance decision (ZK 14 477/ZK 14 479).