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Insurance, Reinsurance & Pension Funds 

by Fabio Figueira, Felipe Bastos

Published: February, 2018

Submission: May, 2018


Legal entities that contract insurance to protect their own assets qualify as consumers within the meaning of the consumer code, says the brazilian Superior Court of Justice (STJ)

"[...] the legal entity that takes out insurance seeking to protect its own assets shall be end user of insurance services, thus calling for the application in its favor of the rules provided for in the Consumer Code."  Based on such rationale the Brazilian Superior Court of Justice (STJ), which is charged with determining how federal laws must be construed by all other courts across the country, held void an exclusionary clause provided for by the insurance policy available on the inurer's website. The STJ concluded that the insurance carrier failed to prove to have informed the policyholder, a company from the chemical sector which faced losses of vehicles as a result of a fire, about the particular exclusion.

Solven Solventes e Químicos Ltda. had a property and casualty policy issued by Itaú Seguros. Among the covered items was a Mercedes Benz truck that was destroyed by a fire in Solven's headquarters in 2010. The fire was caused by a discharge of static energy during loading and unloading of solvents in the company's premises. Itau Serguros (the carrier) denied coverage on grounds that loading and unloading activities were expressly excluded from coverage by the underlying policy.

Solven brought suit against the insurance carrier seeking payment under the policy, but its claims were rejected by the Lower Court. Solven appealed, advancing that the clause excluding coverage for loading and unloading operations was too vague and, moreover, Solven had not been informed about such exclusion prior to the execution of the contract. The São Paulo Court of Appeals upheld the Lower Court decision, though. The court also added that the exclusion was contemplated in the policy available on the insurer's website and that Solven, as a well-structured company which had been assisted by a broker for the placement of the insurance in question, could not claim ignorance of the coverage exclusion in the case at hand.

Solven appealed further to the STJ. In the appeal it stated that while negotiating the insurance contract, it was provided only with a summary of the general conditions of the policy, a document which did not indicate any exclusion of coverage for loading and unloading activities.

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