Third-Party Intervention and the Inclusion of Insurers in Consumer Actions under the Consumer Defense Code, the 2015 Civil Procedure Code and the New Insurance Act: A Historical and Updated Interpretation of STJ Case Law

Abstract

This article analyzes the applicability of third-party intervention for the joinder of insurance companies in consumer lawsuits brought against the insured, criticizing judicial decisions that prohibit such participation based on flawed interpretations of the Superior Court of Justice (STJ) case law. It is argued that the consumer protection prohibition against impleader (denunciação da lide), provided in Article 88 of the Brazilian Consumer Defense Code (CDC), was established to prevent debates regarding fault-based liability among members of the same supply chain, which is alien to the protection requested by the consumer. However, this rationale cannot be transposed indistinctly to insurance contracts, given their distinct legal nature compared to supply chain entities. The landmark STJ precedent (REsp 1.165.279/SP), while expanding the restriction on impleader among suppliers within the consumer chain, expressly exempted the inclusion of insurers pursuant to Article 101, II, of the CDC. Furthermore, under Law No. 15,040/2024 (Private Insurance Law), the participation of insurers in consumer litigation is subject to a specific statutory framework that allows their procedural inclusion without establishing joint and several liability with respect to the original claim. In light of the principle of instrumentality of forms, third-party intervention may occur through call to the process (chamamento ao processo) or impleader (denunciação da lide)—the latter being technically best aligned with the structure of insurance relationships. The article concludes that the only interpretation entirely incompatible with the legal order is the absolute prohibition of any procedural intervention by insurance companies.