Limitations on the subrogation of procedural prerogatives of consumers by insurance companies.

The debate surrounding the competent court to judge subrogation actions filed by insurance companies against electricity distribution concessionaires has taken a new turn with an important decision from the Superior Court of Justice (STJ).

On February 19th, the STJ’s Special Court, in a judgment on repetitive appeals and unanimously, defined in Topic 1.282 that the subrogation practiced by insurance companies is limited to substantive rights, not extending to the procedural prerogatives applicable in consumer relations.

The decision was clear in distinguishing between the transfer of substantive rights, applicable when the insurer reimburses amounts in case of a claim, and procedural rights, which are personal to the consumer.

In this context, Minister Nancy Andrighi highlighted that the consolidated jurisprudence in the STJ reaffirms the limitation of subrogation to the substantive aspects of rights, preserving the personal nature of the procedural prerogatives that protect consumers. This includes the impossibility of insurance companies benefiting from rights such as privileged domicile jurisdiction and the reversal of the burden of proof—guarantees specifically designed to balance the relationship between consumer and supplier.

The decision reinforces that insurance companies cannot use the subrogation mechanism to choose forums more convenient to their interests, thus constituting an abuse of rights. The STJ’s ruling ensures that procedural benefits granted to consumers are not subject to subrogation, promoting justice and equity in legal relations and preventing the deviation from the normative purpose that respects the vulnerability of the consumer .

Specifically regarding the reversal of the burden of proof, the STJ clarified that this prerogative, provided for in Article 6, VIII, of the CDC (Consumer Protection Code), is a procedural guarantee arising from the highly personal condition of the consumer. Therefore, it cannot be transferred to insurance companies in subrogation actions. This decision prevents insurance companies from benefiting from an advantageous procedural position that was originally designed to protect the weaker party in the consumer relationship, which obviously does not apply to insurance companies.

With this understanding, the Special Court of the Superior Court of Justice (STJ) advises that insurance companies, even when subrogated to the material rights of policyholders, must conduct their subrogation actions in the competent court, respecting the current procedural rules. This position ensures that the normative force of the Consumer Protection Code remains intact, protecting the party considered weaker in the consumer relationship, and thus guaranteeing a fair balance in the legal relations between consumers and suppliers.

Thus, the STJ’s decision establishes an important milestone in defining the rights of insurance companies in subrogation actions. By establishing the precedent that: ” The payment of compensation for a claim does not grant the insurer the subrogation of procedural prerogatives of consumers, especially regarding jurisdiction in subrogation actions ,” the Court reaffirms the principle of consumer protection and avoids distortions in the legal system. This decision will have significant impacts on the conduct of subrogation actions by insurance companies, requiring them to respect common procedural rules and not avail themselves of prerogatives intended exclusively for consumers.