Driving overhead and (im) possibility of loss of security guarantee in the brasilian jurisprudence

Abstract

The research intends to analyze what is the understanding of the Brazilian Superior Court of Justice (STJ) about the aggravation of the risk of the automobile insurance contract, due to drunkenness, independently of a third party, and the (im)possibility of losing the insurance guarantee. Preliminarily, there was a brief review of the principles of the social function of the contract, objective good faith, and the institute of the insurance contract, highlighting its main nuances and basic concepts. Then, in the light of contemporary contractual principles, a paradigmatic case was analyzed, also making a parallel with previous doctrinal and jurisprudential understandings and conjecturing possible different developments for the case. It was concluded that, in the understanding of the STJ, the mere finding of drunk driving, including the fault of a third party, can generate the loss of the insurance guarantee, and it is the responsibility of the insured to prove the inexistence of a causal link related to the aggravation of the risk. The research methodology is documentary, bibliographical, doctrinal and qualitative.