Changes in the field of insurance with the issuance of Provisional Measure No. 1,153/2022
On 12/30/2022, Provisional Measure No. 1,153/2022 (MP) was published. Among other measures, this amends Law No. 11,442/2007 regarding cargo insurance (Article 13 of the Provisional Measure).
In short, the Provisional Measure (MP) brings a greater relevance to the attribution to the carrier, individual or legal entity, or provider of the road freight transport service, the exclusivity in contracting the obligatory civil-carrier liability insurance to cover losses or damages caused to the transported cargo because of road accidents. Before, this was provided for in Law No. 11,442/2007 and it was possible to be contracted by both the carrier and the shipper. Generally, this was often done by the latter.
In addition, the text of the MP prohibits the stipulation by the shipper (contractor of the transport service) of the conditions and characteristics of the policy contracted by the carrier.
Below, we briefly address the main impacts of the new standard on the parties involved in the civil liability insurance relationship for road freight transport.
In addition to attributing to the carrier on an exclusive basis the duty of (i) contracting civil liability insurance/carrier, with coverage for losses or damages caused to the transported cargo as a result of road accidents, the Provisional Measure also grants to the carrier – on an exclusive basis – the possibility of contracting (ii) civil liability insurance for road freight carriers to cover theft and (iii) civil liability insurance for vehicles and property damage and bodily harm and to cover damage caused to third parties for the vehicle used in the transport, which can be done in a globalized policy involving the entire fleet.
Regarding civil liability insurance for road freight carriers to cover theft, such contracting under the terms of the MP does not exclude and does not preclude the contracting of other optional insurance to cover simple and qualified theft, embezzlement, embezzlement, simple extortion or through kidnapping or any other claims, losses or damages caused to the transported cargo.
Also, the choice of insurer is down to the carrier who will no longer be bound by the stipulations and conditions of the shipper and is able to negotiate directly and freely with the insurer the terms of the insurance contract and define its own risk management plan.
Despite the stipulation of the conditions and characteristics of the insurance policy/policies, the shipper contracted by the carrier is allowed to contract insurance and/or additional coverage if they observe the following provisions and hypotheses:
The shipper may contract civil liability insurance/carrier covering losses or damages caused to the cargo transported because of road accidents in the event that the transport service is contracted directly with TAC (Transporter Autonomo de Cargas). However, in this case the shipper will be responsible for any losses without any charge to the autonomous carrier.
It is also possible to contract additional insurance coverage against risks already covered by the carrier’s policies. However, the shipper cannot bind the carrier to the fulfillment of operational obligations associated with the provision of transport services including those provided for in the Risk Management Plans (RMP).
In addition to completely changing the way insurance related to cargo transport is contracted and without going into the issues of constitutionality, the MP – by not establishing any transition period -also brings legal uncertainty to relationships and to the hiring and renewals of new policies carried out from their publication and effectiveness.
For the shipper, the impossibility of imposing a PGR brings an additional risk to the operation and the need to review previously established contractual conditions and even review of the choice of carrier partners.
The MP seems to be beneficial to carriers insofar as it provides the latter with the option of contracting insurance and the possibility of not being linked to the PGRs of the shippers to have the benefit of the waiver letter of the right of return (DDR). However, the fact is that we do not know how the insurance market will behave in the face of such changes. For the insurer, there will be the challenges of underwriting and pricing a new risk – linked to the individual profile of each carrier and not to the PGR of the shipper) – which may even make insurance more expensive for carriers and even affect the coverage capacity of the market.
As for insurance brokers, the MP may end up being a business opportunity as carriers seek to take out new policies – especially medium and small policies – thus diversifying and expanding their role as an intermediary.
Finally, it is important to emphasize that despite waiting for the decision of the National Congress regarding the MP which should occur by 04/02/2023, the fact is that the norm is already in force and producing effects, which must be considered by all parties involved in conducting their current business.
Lefosse’s Insurance, Reinsurance and Private Pension practice will continue to follow the news and changes that impact the sector. For further clarification on this subject, or any others that may be of interest to you, please contact our professionals.
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