Clipping of news on Brazilian Culture, Law and Citizenship
12/15/2014
This article was translated by an automatic translation system, and was therefore not reviewed by people.
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The mere motor vehicle loan to a third party is not sufficient to give rise to risk of worsening the loss of coverage, while the insurer proves that the insured intentionally practiced decisive act for the occurrence of the accident. With this understanding, the Fourth Chamber of the Superior Court of Justice (STJ) amended judgment of the São Paulo Court of Justice (TJSP) that removed the insurer's liability to pay the compensation because the insured have borrowed the car to a third party in if your boyfriend, injured while driving drunk.
The São Paulo Court held that the intoxication of vehicle driver was crucial to the accident and that, by allowing third drive the car, the insured contributed to increased risks and the consequent occurrence of the accident that resulted in the total loss of the vehicle .
The contract between the parties stipulates that if the vehicle is being driven drunk or drugged person, the insurer shall be exempt from any obligation. It also excludes the assumed liability if the driver refuses to perform drunkenness test required by the competent authority.
The insured appealed to the Supreme Court, arguing that understanding already pacified by STJ requires the intentional increase of the risk by the policyholder, by intent or bad faith is established by the insurer.
proof
According to the rapporteur, Minister Isabel Gallotti, the TJSP considered that the mere loan of the vehicle demonstrates the insured's participation in a major way to the worsening of the accident risk, although not had it known that the third would lead him under the effect of alcohol.
To the minister, this position contradicts the guidance of both classes that make up the Second Section of the STJ that, in most cases of insurance coverage exclusion under Article 1454 of the 1916 Code and Article 768 of the Civil Code of 2002 require proof that the insured intentionally contributed to increased risks stated in the contract.
Citing several precedents, Isabel Gallotti reiterated that the insurance contract usually is intended to cover damages stemming from the misconduct of the assured, so that the full demonstration that proceeded to intentionally risky mode is suitable basis for the exclusion of the right to insurance coverage .
simple loan
"In short, the mere motor vehicle loan to a third party does not constitute aggravating enough to give rise to risk the loss of coverage. Only the existence of proof - in charge of the insurer - that the insured intentionally practiced decisive act for the occurrence of the accident would lose coverage, "said the minister in his vote.
Following the vote of the rapporteur, the joint committee unanimously concluded that the insurer must bear the payment of the amount corresponding to the difference between the compensation of insurance coverage for the total abandonment of the planned vehicle in the policy, for R $ 5,800, and the value raised by the insured with the sale of scrap (R$ 1,000).
The amount should be increased by incident indexation from the date of conclusion of the insurance contract and default interest from the quote.
Source: STJ
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This article was translated by an automatic translation system, and was therefore not reviewed by people.