The labour law team of our firm, coordinated by Attorney Umberto Oliva, successfully concluded a difficult case, obtaining the national insurance annuity in favour of the widow and heirs of an asbestos victim, even though he contracted the occupational disease, in all likelihood, while working in Switzerland, at the infamous Eternit SA.
The case was particularly interesting, as the INAIL – the Italian national insurance against workplace injuries and occupational diseases – accepted the argument that limitation period was interrupted by the request to the “supposed debtor”.
The fact
In the late 1960s, Mr. R. D., like many Italians at the time, went to Switzerland in search of fortune and there began working, employed by Eternit SA, where he served continuously for about twenty years.
Upon his return to Italy, R. D. worked for a few years at a carpenter’s shop and then, until 1990, in the employ of a company where he served as a kitchen fitter.
In February 2013, Mr. R. D. was diagnosed with malignant pleural mesothelioma, which led to his death a couple of years later.
The application to SUVA – Rejection on the grounds of Reg. No. 883/2004/EC
Shortly after his diagnosis, Mr. R. D. – believing that his illness was attributable to his work activity at Eternit AG – applied to SUVA for recognition of occupational disease (in Switzerland, state social accident insurance is mainly administered by the Swiss National Accident Insurance Institution Suva – Schweizerische Unfallversicherungsanstalt, an autonomous public body).
The Swiss institute ascertained that Mr. D.’s illness had been caused by exposure to asbestos dust, but it also claimed that this exposure had occurred not only while he was working in Switzerland at Eternit AG, but also later, at his workplace in Italy.
Therefore, SUVA denied the right to compensation on the grounds of lack of competence, which, instead, it recognized in the hands of INAIL, in application of Article 38 of Reg. No. 883/2004/EC, which provides that “When a person who has contracted an occupational disease has, under the legislation of two or more Member States, pursued an activity which by its nature is likely to cause the said disease, the benefits that he or his survivors may claim shall be provided exclusively under the legislation of the last of those States whose conditions are satisfied.”
Mr. D. appealed against SUVA’s decision, which, by order dated Dec. 18, 2013, upheld the decision.
The appeal before the Swiss Courts – Dismission on the grounds of SUVA’s lack of capacity to be sued
On 3.02.2014, Mr. R. D. appealed against SUVA’s decision to the Cantonal Court, which, in a ruling dated 22.12.2017, was dismissed due to SUVA’s lack of capacity to pay the social security contribution. The same fate befell the subsequent appeal filed with the Federal Court by the heirs of Mr. R. D. on 02/26/2018 and decided on 08/16/2018.
The application to INAIL – dismissed on the grounds of expiration of the limitation period
Since the possibility of obtaining recognition of occupational illness in Switzerland had definitively vanished, on 12/23/2019 Mr. D.’s heirs, in light of the rulings of SUVA and the Swiss courts, applied for the payment of social security benefits to the INAIL Central Directorate, the Italian public insurance for occupational accidents and diseases.
In an order dated 04/17/2020, INAIL rejected the application on the grounds that the claim was time-barred, pursuant to Article 112 of Presidential Decree No. 1124/1965.
The heirs of Mr. R. D. therefore turned to our firm, distressed by many futile attempts to obtain compensation, for assistance in their case.
Opposition to INAIL – Interruption of the limitation period by means of a request to the supposed debtor
Under the patronage of Attorney Umberto Oliva, on 05/25/2022 the heirs of Mr. R.D. filed an opposition against the INAIL’s order, contesting that the claim was time-barred.
According to the thesis supported by our firm, although Article 112 of Presidential Decree No. 1124/1965 provides that the action to obtain social security benefits “shall be brought within three years from the day of the accident or from the day of the manifestation of the occupational disease” and although between the death of Mr. R. D. – which occurred on 3.06.2015 – and the request to INAIL – made on 23.12.2019 – a period of more than four years had elapsed, the right could not be considered time-barred in application of Article 2943 of the Civil Code due to the effect of the completion of subsequent acts interrupting the limitation period, albeit addressed to an incompetent Institute.
In support of this argument, reference was made to Judgment No. 783/1999 of the Supreme Court, in which the principle was stated that “The limitation (Article 112 Presidential Decree No. 1124 of 1965) of actions to obtain benefits from Inail can be interrupted, according to the rules of the Civil Code, even by extrajudicial acts,” and that “the request for benefits addressed to the putative debtor interrupts the limitation period to the detriment of the real debtor.”
In the case at hand, the first act interrupting the statute of limitations was performed by Mr. R. D. himself when, in February 2013, following the diagnosis, he addressed a request for the ascertainment of the occupational illness to SUVA, an institute that he considered competent but which, instead, denied its capacity in favour of INAIL’s.
The limitation period, thus interrupted the first time in February 2013, began to run again from the SUVA’s ruling on 02.12.2013.
And so on, the various decisions that followed over time and the subsequent initiatives taken by the victim’s heirs before the Swiss Courts prevented the expiry of the limitation period; and this until Dec. 23, 2019, when the heirs of Mr. R. D. filed an application to INAIL for the ascertainment of occupational disease, which was rejected by order dated Apr. 17, 2020.
Applying the aforementioned principle of the Supreme Court to the case at hand, therefore, the three-year limitation period referred to in Article 112 of Presidential Decree No. 1124/1965 could not yet be expired, having regard, for the purposes of ascertaining the right, not to the moment when Mr. R. D.’s death occurred, but to the later moment when the last limitation period interruption occurred.
The granting of the application in opposition
Accepting the aforementioned arguments, by order dated 12.07.2023, INAIL confirmed the occupational origin of the disease that arose in Mr. R. D., resulting in the final recognition of the right to the annuity under Article 85 of Presidential Decree No. 1124/1965 in favour of the widow and heirs.