Vitor José Ferreira do Couto
Lawyer at Marcos Martins Advogados
In a recent ruling, the Superior Court of Justice decided that it is not possible to directly denounce guarantors in counter-guarantee contracts in which the insurer has a contract with another insurer.
In this specific case, the Third Panel of the STJ, in the judgment of REsp No. 1.713.150, overturned the judgment of the São Paulo Court of Justice, with the understanding that the insurer-insured relationship is independent of the borrower-insurer relationship, and it is certain that calling the guarantors to account will hinder the progress of the case rather than simplify it:
“in the event of guarantee insurance, the insurer is not entitled to bring a claim against the party who, in a counter-guarantee contract, has assumed the position of guarantor, in order to reimburse the payment of any insurance indemnity or the price of the insurance. This is because (i) the legal relations established between the insurer and the insured are autonomous from those maintained with the policyholder/guarantor; (ii) the insurer’s right of recourse can subsequently be exercised in a separate action; and (iii) the denouncement inaugurates an incidental claim capable of disrupting the main proceedings, which are already unnecessarily disrupted.”
Even though there is a counter-guarantee contract, which provides for the guarantor’s duty to reimburse, the ruling applied, in the specific case, the understanding that it would not be possible, nor effective, to directly denounce the claim against the guarantors, based on art. 70, III, of the CPC/73 (now art. 125, II, of the CPC/15).
The Marcos Martins law firm is attentive to new case law in order to provide adequate and effective advice to our clients.
