REFLECTIONS ON THE FUTURE OF MORAL DAMAGE COVERAGE IN CIVIL LIABILITY POLICIES

After attending the excellent lecture by Dr. Danielle Djouki , President of the GNT of Regulatory and Compliance at AIDA Brasil , at the XV Insurance Law Congress, and reviewing some cases from the office in which the extension of the moral damages clause in policies was debated of Civil Liability, one question stuck in my head:
Why does the insurance market still suffer from an unfavorable jurisprudential interpretation of the scope of moral damage coverage, which is absolutely dissociated from the general insurance conditions?
Some RC policies do not include coverage for pure moral damage, making it conditional on the occurrence of bodily harm. The Judiciary, however, has extended the scope of the clause to include it in the coverage, which creates an imbalance in the contract and generates negative consequences for mutuality.
The natural and obvious path to try to change this situation, and which has been followed for more than a decade, is the attempt to show the judge, in each case where the issue is (mis)interpreted, how and why the policies make these distinctions, and what would be the appropriate jurisprudential interpretation.
This path, however, seems to be leading the market to a dead end. This specific and isolated action, considered case by case, has not managed, to this day, to modify the jurisprudential interpretation that has prevailed for years in our Judiciary, and insisting on the strategy seems to us to be a huge mistake.
The challenge I make is: how about we start thinking about the problem in a more global way?
The repeated jurisprudential precedents that extend the application of the moral damages clause point, as a rule, to the defect in the information in the formation of the contract as the basis for this extensive interpretation of coverage. Therefore, in all imagined solutions, the work must begin long before the arrival of the Judiciary of the processes that deal with the interpretation of this clause.
How can we provide clearer and more precise information, in line with consumer legislation, without compromising the contractor's experience and that meets what the Judiciary considers sufficient to fulfill the duty of information?
The answer involves the necessary involvement of many company departments, in order to analyze the foundations of this extensive interpretation and extract from these analyzes what prevents the Judiciary from accepting the contractual limitation, implementing changes in the contract formation process, with special attention to the moment of the proposal.
It is worth saying that this effort cannot be limited to the procedural or legal scope of companies.
There is no recipe for a cake and if there were, we would certainly have less hostile jurisprudence. But reflection is absolutely necessary and urgent so that we need less and less to “kneel in the corn”, repeating Dr. Danielle's words here, to explain these distortions in our Judiciary to other players.