Serious doubts about the insurance contracts in the Serta court – a mistrial ?
A new investigation of Almegue-invest results in serious doubts about the validity of all the insurance contracts used by Fidelidade in its legal process – 736/19.2T8CTB in – the Serta court
In this legal process the Fidelidade lawyers are not using the restored versions of the original seven insurance contracts of Transes International SA, as ordered by the sentence of the Santarem court in 2013/2015, but new insurance contracts issued in Jan/Feb 2018 after the wildfire of June 2017 on totally by the wildfire destroyed chalets in the Almegue project.
These new insurance contracts are serious violating the Portuguese insurance law, Decree law no 72/2008, 16 of April, in particular the articles 43 and 44, and resulting therefore in null and void contracts.
Moreover, the insurance contracts of the 5 previous promises buyers are, since the sentence of the Lisbon court in 2015 – process 736/19.2T8CTB -, invalid and/or not existing any longer, as the previous promised sales contracts, on which any property right was claimed so far, were declared invalid by the court (not existent any longer).
Also these not existing and/or legally invalid insurance contracts are included in this process, connected to 5 creditors, previous promised buyers of the Transes group.
It this is all true, there are so far no reasons why not, this process in the Serta court is a mistrial and should be dismissed.
For understanding it one has to go back to the period before the start of this process in February 2019.
As already explained before in detail Fidelidade was sentenced by the Santarem court – process 2270/04.6TBSTR – for the illegal cancellation in 2002 of all the insurance contracts for properties in the Almegue project; all hold by Transes International SA, a company in Luxembourg.
Fidelidade was ordered by the court sentence in 2013-2015 to restore 7 of the illegal canceled insurance contracts for chalets in the Almegue project.
The new insurance contracts of Transes International SA
It resulted in an unanswered question: How is Fidelidade going to restore the since 2002 canceled, and legally not longer existent, insurance contracts ? All being original contracts issued at the start of the chalet constructions in the period before the year 2000.
In any case Fidelidade did not restore these contracts at least not in the first two years after the sentence, but fortunately the Santarem court legalized via its sentence the validity of these seven original insurance contracts.
Then in June 2017 the wildfire in the Center of Portugal completely destroyed the properties inside the Almegue project. At that time the insurance contracts were still not restored. In other words, at the moment of the wildfire there was no single valid insurance contract for the properties included in the Almegue project. *) See also above the lack of valid insurance contracts of the five previous promised buyers.
Fidelidade was informed by Transes International SA about the fire and the still missing insurance contracts on the 25th of July 2017.
But nothing happened until January/February 2018. Suddenly Transes International SA, the previous holder of the seven in 2002 canceled original insurance contracts, received seven new “Aviso-Receibos, the usual premium payment instructions” for seven new insurance contracts, but all lacking almost all technical and administrative details, normally included in such new insurance contracts.
All made for new insurance polices with: new policy numbers, and mentioned contract type (seguro novo) – issued at 2018-01-12, and covering the period 2002-2014.
The premiums had to be paid in time, as otherwise Fidelidade was not going to start with the evaluation procedure of the damage claim on bases of the insurances involved. Amazing and without any explanation or any relation with the contract conditions of 2002 as ordered by the court in Santarem.
Only later with the start of the legal process in the court of Serta in 2019, it became clear that these new insurance contracts were supposed to be the restored original insurance contracts of Transes International SA. Unbelievable and with great doubts about its legality.
In 2008 a new Portuguese insurance law was introduced – Decree law no 72/2008, 16 of April – raising the possibility to check two main questions about these new insurance contracts:
1. Are the new insurance contracts valid and, 2. do they represent the restored original insurance contracts canceled in 2002 (contracts that since the year 2002 did not existed any longer).
a) The validity question
The answer to the first, most important question is given by chapter IV of the law – Contents of the contract, Section I, Interest and risk
Article 43 – interest.
1 -The insured must have an interest worthy of legal protection in relation to the risk covered, under penalty of nullity of the contract.
2 – In damage insurance, the interest concerns the conservation or integrity of the insured thing, right or property.
The new insurance contracts issued by Fidelidade on the 12th of January 2018 are violating the paragraphs 1 and 2 of article 43, as they are issued for destroyed, not existing, properties. After the wildfire the chalets in the Almegue project did not existed any longer. They became lost properties for the owner with an estimated damage value of 3.6 million Euro.
It implies that on the basis of article 43, the issued insurance contracts are null and void (see in particular paragraph 1 of article 43)
Article 44 – Absence of risk
1- Except in cases provided for by law, the insurance contract is void if, at the time of conclusion, the insurer, the policyholder or the insured is aware that the risk has ceased.
2 – The insurer shall not cover claims prior to the date of conclusion of the contract if the policyholder or the insured was aware of them on that date.
3 – The insurance contract shall not produce effects in relation to a future risk that does not come into existence.
It is clear that after the wildfire on the 17/18 June of 2017, the insurer Fidelidade, the policy holder Transes International SA, and the insured, Jan van Es, all knew in Jan/Feb 2018 that the risk covered by the insurance contracts was ceased (art. 44, paragraph 1).
Therefore, also article 44 results in void insurance contracts. Moreover, it seems that these insurance contracts issued in Jan/Feb 2018, 8 month after the wildfire, are also violating the paragraphs 2 and 3 of article 44.
b.) The restored original insurance contract question
Certainly they are not, as these new contracts are missing all the obliged contract data of the articles 18-22 of the same law, and are violating the sentence of the Santarem court
Moreover, these new contracts have other issuing dates (starting year 2002) and do not respect the obliged contract conditions of 2002, in particular article 15, all as ordered by the Santarem court sentence.
The insured capital values of the original contracts for the year 2001 (price level 1999) were taken over, the properties identified, and without given Transes International SA the possibility to adapt the insured capital values to the price conditions of 2018. (obliged by article 15 of the general contract conditions and article 49 of the new insurance law
What Impact on the present legal case in the Serta court?
The direct consequence for the court case in Serta is, that this legal process can not continue in this way, as at the moment all the insurance contracts mentioned and handled in this legal process are invalid for the various mentioned reasons; most likely a mistrial !
Instead, the original contracts of Transes International SA, the only real creditor in this legal process, legitimized by the sentence of the Santarem court in 2015, with capital insurance values updated for the years 2019-2024, must replace all the invalid insurance contracts of Jan/Feb 2018 and the limitation of the damage claim to lesser than 1 million Euro must be revoked. Moreover, all claims from the previous promised buyers, included by Fidelidade and its lawyers as creditors in this legal process, should be dismissed.