Life Insurance and Suicide: A new frontier in the Brazilian Legal System
Por João Gabriel Ribeiro de Oliveira - Direito/UnB - Monitor da matéria "Contratos".
Among the various principles of Law, that of legal certainty is one of particularly difficult enforcement. This becomes evident when commonly held conjectures come into conflict with fundamental rights under exceptional, albeit recurring, circumstances, such is the case of the right to indemnity in life insurance and the suspicion of premeditated suicide.
The Brazilian Superior Court of Justice has recently ruled on the needlessness of an insurer to indemnify in cases of suicide in the first two years of the insurance period, opposing the previously established Precedents 61/STJ and 105/STF, which imply that life insurance must cover unpremeditated suicide for that time interval.
The aforementioned precedents upheld that the contracted insurer would have to prove the anticipation of the suicide in order to avoid the indemnity payment. In other words, should the insurer fail to meet his burden of proof, the company would have to indemnify the insured.
Further, the "involuntary" suicide is one that is caused due to changes on an individual's will, either by mental illness, psychiatric injury/disorder or emotional distress, which can result on the person losing track of the effect of their actions. Prima facie, all suicides are “involuntary”, as explained by Arnaldo Rizzardo in his book “Contracts”. In those occasions, the insurer was forced to indemnify, in the same way it would otherwise, in cases of death from common diseases.
However, new findings were invoked in the trial of Special Appeal 1.334.005.
On this occasion, the 2nd Section of the Superior Court of Justice decided to interpret Article 798 of the Civil Code verbatim, thus avoiding further discussions concerning the premeditation and good faith of the insured.
The thesis that prevailed in the recent decision, led by Justice Gallotti, exempts insurers from indemnifying the insured in the event of suicide during the two years that follows the contract's signature. Therefore, the Court's rule avoids the subjective content of discussion about the reasons and motives behind an individual's suicide, relieving the insurer of responsability in all cases.
The major controversy that remains is whether the doctrine will evolve to encompass borderline cases such as euthanasia or suicide as a "tragic choice" - like in the case of a person who jumps from a burning building - or stagnate and ignore those marginal situations.