TJSC Decision

In a recent trial held in a dispute involving an E&O Insurance Policy, the Court of Justice of the State of Santa Catarina decided to uphold the judgment dismissing the claim filed by the Insured before the Insurance Company, stating, in short, that:

(i) civil liability insurance (arts. 787 to 788, of the CC) “exclusion or limitation of the transferred risk, the Superior Court of Justice has already established that “The insurer's refusal to cover in the event of exclusion or express limitation of coverage is legitimate, since the clauses of the insurance contract must have restrictive interpretation. ' (AgInt no ResP n. 1,567,271/DF, rapporteur Minister Raul Araújo, Fourth Panel, judged on 12/12/2022, DJe of 14/12/2022)”;

(ii) “it is well known that the appellant was aware of the existence of a notification made in a period prior to the beginning of the term of the contract and even contracted with another insurance company. Of course, it is certain that the insured person was omitted when the civil liability insurance was purchased”;

(iii) “Finally, it should be noted that the scope of retroactivity of insurance benefits requires 'a successive and uninterrupted series of claims-based policies', a requirement not met in the case of the records, since, according to the policies for event 1, OUT8 and event 1, OUT9, there was a break in the continuity of the policies purchased with the appellant in the period from 6/5/2019 to 6/5/2020 and 6/5/2020 to 6/5/2021”; and,

(iv) “The interpretation of contractual clauses in a manner that is more favorable to the consumer (art. 47, of the CDC) cannot be used as a mechanism for violating the text agreed between the parties. The risks assumed by the insurance company are nominal and comprehensively understanding them, when the wording of the contract is easy to understand, violates the principle of freedom of contract (art. 421, caput, of the CC) and that of good faith (art. 422, of the CC).” (TJ-SC, Civil Appeal No. 5043150-17.2022.8.24.0038, Rapporteur Judge Yhon Tostes, judged on 29/08/2024).