In the event of total loss, the policy will only be paid in full if the value of the asset has not suffered depreciation
The Superior Court of Justice (STJ) expresses the understanding that, in the event of total loss, the insurance indemnity will only correspond to the full amount of the policy if the value of the asset, at the time of the loss, is not lower.
The panel denied the special appeal of an insurer against a decision that required it to indemnify, in the full amount of the policy, a company that had its headquarters and inventory of merchandise destroyed by fire. The amount of R$ 1.8 million for the damages verified in the building and in the inventory, R$ 50,000 as lost profits, and R$ 25,000 to cover fixed expenses.
Before the STJ, the insurer argued that the indemnity should be limited to the value of the loss actually proven at the time of the fire. And under penalty of obtaining undue profit by the insured, who would not have proven the existence in inventory of the goods declared at the time of contracting the insurance.
The indemnity principle and the non-obtainment of profit by the insured
The reporting judge of the case recalled that the discussion goes back to the so-called indemnity principle. According to which insurance contracts are not intended for the earning of profit, but for the recomposition of the loss resulting from the claim. In accordance with article 778 of the Civil Code of 2002 (CC/2002), which reproduced a rule already established in the previous legislation.
For the magistrate, “if the law itself establishes that the guarantee promised cannot exceed the value of the insured interest at the time of the conclusion of the contract, and if the value of the insured asset ordinarily corresponds to the value of the policy (since otherwise there would not be an effective reparation of the loss suffered, the greatest scope of the insurance contract), it seems lawful to admit that the indemnity must be paid at the full value of the policy in the event of the total perishing of the asset.”
Innovation introduced by article 781 of the CC/2002
The reporting judge also points out that such a statement must be made with caution. Since article 781 of the CC/2002, innovating in relation to articles 1,437 of the Civil Code of 1916 (CC/1916) and the aforementioned article 778 of the CC/2002, defined that the value of the insured thing, which will serve as a ceiling for the indemnity, must be assessed at the time of the loss.
“The value of the thing at the time of the conclusion of the transaction (which ordinarily corresponds to the value of the policy itself) serves only as a first limit for the insurance indemnity, since the contracted guarantee cannot exceed this amount. As a second limit, there is the value of the insured asset at the time of the loss, since it is this value that, in fact, reflects the loss suffered by the insured in the event of the destruction of the asset,” he states.
In this way, according to the reporting judge, it is possible to consider, for the payment of the insurance indemnity, the variation in the economic expression of the insured interest over time.
In the case judged, the magistrate emphasized that there is nothing in the records reporting any depreciation of the inventory in the period of only 21 days between the contracting of the insurance and the fire. There being no reason to presume any considerable devaluation of the insured assets, which had been duly inspected by the insurer before signing the contract.
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Complying with the contractual clause facilitates insurance payment
Source: STJ
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