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TJDF removes the application of the Commercial Representation Law to the relationship between Insurance Broker and Insurer

22 de September de 2023

In a unanimous decision, The Court of Justice of Federal District (TJDF) dismissed the insurance broker’s claim arguing that its relationship with the insurer has the legal status of commercial representation. TJDT concluded that the activity carried out by the broker should be analyzed based on the rules governing the insurance brokerage activity, governed by Law No. 4,594/64 and SUSEP Circular No. 127/2000. Lawyers Gabriella Balthar and Lara Surrage, from partner Keila Manangão’s team, worked on the case.

In the case analyzed, the insurance broker, dissatisfied with the termination of the business relationship with the insurer, filed the lawsuit claiming that the insurer’s unilateral termination initiative constituted an unlawful act, considering that it occurred without just cause. For this reason and based on the allegation that she had performed as the insurer’s commercial representative, she requested the insurer to pay her notice indemnity, as provided for in art. 34 of the Commercial Representation Law (Law no. 4.886/65), as well as indemnity for loss of profits, based on art. 35 of the same Law, and indemnity for moral damages.

The claim was dismissed at first instance, the Broker appealed, but the TJDF, analyzing the merits of the claim, upheld the dismissal of the action, based on that the intermediation carried out by the Broker consisted of insurance brokerage. For the Court, as the plaintiff had registered and always identified herself as an insurance broker, she could not, at a later date, when the agreement was terminated, claim to be classified as a commercial representative, as this would constitute “contradictory behavior, incompatible with the principle of objective good faith”.

Justice Lucimeire Maria da Silva, who reported the appeal, pointed out that “when dealing with the distinction between an insurance representation contract and a commercial representation contract, in the context of (Special Appeal) REsp n° 1.897.114/PA, the Superior Court of Justice analyzed the difference between these legal transactions, making it clear that insurance agreements have their own regulations, especially those issued by SUSEP, so that they are not subject to the provisions of Law n° 4.886/65, which applies to commercial representation.”

This is an important precedent for the insurance market, since the application of the Commercial Representation Law to regulate relations between insurance brokers and insurers would not only denature the legal relationship between the parties, but would also imply recognition of the broker’s right to receive substantial compensation sums in a scenario of contract termination by the insurer, creating obligations and losses that were not foreseen when the commercial partnership began.

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