New lawsuit wants to execute R$ 4.2 billion in Chapecoense flight insurance

The law firm PodhurstOrseck sent a letter to its approximately 40 clients in Brazil. Dated April 19, the letter informs a change in strategy: file a new lawsuit in the United States against the reinsurer Tokyo Marine Kiln and start the execution process US$ 844 million (R$ 4.2 billion).

Actions in the American courts are nowadays the only hope of the survivors It is relatives of the victims of the Chapecoense tragedy receive the aircraft insurance.

Tokio Marine Kiln was the reinsurer of the plane from Lamia that fell on the outskirts of Medellinat Colombiain November 28, 2016. They were 71 dead. The flight took Chapecoense team, leaders, fans It is journalists for the first match of the final of the Copa Sudamericana that year, against Atlético Nacional-COL.

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“The effect of this separate action will be that Tokio Marine Kiln will not be able to present many of the technical arguments alleged in opposition to our efforts to add them as defendants in the original action. (We will be able) to proceed more efficiently in their action against them “, says the text of the letter, to which Folha de S.Paulo had access.

The report sent an email to Tokio Marine Kiln’s office in London last Monday (24th) and, until the publication of this text, did not receive a response.

In Brazil, the indemnification actions referring to the insurance would be doomed to failure because Aon (broker) and Tokio Marine Kiln (reinsurer) would claim that the policy was in arrears and that LaMia had disrespected the terms of the agreement, which prohibited her from flying to to Colombia.

The original insurer of the flight, the Bolivian Bisa, has no financial capacity to make the payment even though he had undertaken to do so. He never complied.

Under US law, action is possible because Aon and Tokio Marine Kiln would not have complied with the protocol for canceling the policy. It could not be considered void just because it was in arrears or because LaMia violated the territoriality clause. According to PodhurstOrseck’s arguments, on behalf of the victims, this could only happen after the Bolivian airline had been formally notified of the fact. That would never have happened.

In September 2020, Florida State Court Judge Martin Zilber upheld the cause and stipulated the judgment at $844 million. It is this value that the law firm wants to start executing and, as stated in the letter, the new process would circumvent the arguments already presented by Tokio Marine Kiln. The amount would also be subject to interest.

The reinsurer had created what it called a “humanitarian fund” in Brazil for the victims. Anyone willing to receive it would have, as a condition, to waive any action against Tokio Marine Kiln in any country. The amount paid was U$ 225,000 (R$ 1.1 million today) per family.

In the text of the document that sealed the agreement, the company called the plane crash an “incident”. According to the definition of Anac (National Civil Aviation Agency), incident “is an occurrence, other than an accident, associated with the operation of an aircraft, which may affect the safety of the aircraft”. Accident is any occurrence related to the operation of an aircraft in which any person is seriously injured or killed.

Tokio Marine Kiln and Aon obtained an injunction in London to stop the process in the United States. The decision regarding the reinsurer was reversed. As for the broker, not yet.

“While we can certainly counter Tokio Marine Kiln’s allegations, in the firm belief that there is no basis in their allegations, we have made a strategic decision to proceed in a manner that will ultimately deny many of Tokio Marine’s (Kiln) technical allegations.” correspondence from PodhurstOrseck.

The action in the United States was possible because there are emails exchanged between American companies and LaMia before the flight that would take the Chapecoense players to Medellín.