STJ : third panel of the superior court recognizes the vality of adjustments of the premium by age group in life insurance

In a recent decision, the Third Panel of the Superior Court of Justice (STJ) revised its understanding, enabling the readjustment of life insurance by age group. This, in fact, was already the understanding adopted by the Fourth Panel of the STJ since March 2019.

The plaintiff claims that, in the period from 2002 to 2014, the insurance company readjusted the value of his life insurance premium by 500%, whereas in the same period, the insured capital had risen only 40%, what demonstrates the abusive readjustment by age group.

The case was dismissed at first instance, however, on appeal, the Court of Justice of São Paulo (TJSP) contested the first instance decision and declared the adjustments by age group to be abusive from the date the plaintiff reached the age of 60 years old.

In his vote, the Reporting Justice of the STJ, Paulo de Tarso Sanseverino, explained that, in the absence of a specific rule for the protection of elderly policyholders in life insurance contracts, the jurisprudence of the Third Panel had been applying, by analogy, the article 15, sole paragraph, of the Health Care Law (Law 9.656/1998), which prohibits the readjustment of the insurance premium according to the age group after the insured reaches the age of 60 years old and has more than 10 years of contractual bond.

However, according to Sanseverino, this understanding should be revised, considering that life insurance, contrary to what its name might suggest, does not protect life, but the patrimony with payment of a compensation to the family, unlike the case of the health plan, which, by protecting the right to life and health care, have it´s base on the principle of human dignity.

Although the age element affects directly the risk of both health plan as well as life insurance contracts, since advancing age increase the risk of claims in both contracts, Sanseverino defended that the analogy with the Health Care Law is not adequate for the life insurance hypothesis, since only “in the case of health insurance plans, the legislation imposes on insurers the technique of spreading the risk, because the increase of the risk verified in the elderly assured group must be supported, partly, by the younger assured group, as a kind of intergenerational solidarity”.

Therefore, Sanseverino concluded that “if there is no similar rule in the scope of life insurance, there is nothing to prevent insurers from establishing in their contracts a readjustment clause by age group and charge a higher premium to elderly policyholders, to compensate the increase of the risk on that class of policyholders”.

Source: STJ 06/12/2020 – REsp 1.816.750 / SP

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