Summary of a judicial case regarding the lack of legitimacy of insurance agents to be sued, the third parties that are summoned to the process, and the applicable exchange rate when a judicial decision orders to pay sums in foreign currency.

I.- Introduction

This article deals with the most significant aspects of the judicial case named “COMERCIALIZADORA MECAFRON SA c/ GUSTAV F. HUBENER GMBH s/ INCUMPLIMIENTO DE CONTRATO”, (CCF 366/2014), regarding the lack of legitimacy of insurance agents to be sued, the third parties that are summoned to the process, and the applicable exchange rate when a judicial decision orders to pay sums in foreign currency.

II.- Summary of facts

The plaintiff (COMERCIALIZADORA MECAFRON) claimed payment in dollars from the defendant (GUSTAV F. HUBENER GMBH), alleging breach of contract of a “door-to-door” insurance policy contracted with them. Said policy was agreed to cover the risks of exporting peony floral stems from Trevelin, Chubut, Argentina, to the Netherlands. This export was carried out through three air shipments and one maritime shipment.

The claim seeks compensation from insurance payment for alleged damages to the merchandise, the flower stem, which, upon arrival at their destination, presented conditions that made them unsuitable for use. The plaintiff argues that the damage occurred due to non-compliance with the transportation conditions, specifically the failure to observe the proper cold chain for correct preservation.

The insurance company rejected the claim, arguing that the damage to the merchandises was due to an infection called “botrytis”, which affected the floral stems before packaging and shipment. According to this argument, the damage was caused by an inherent defect and, therefore, not attributable to an insured event and excluded from coverage.

We will address some of the most relevant issues that arise from the judicial decision, which, in our opinion, have novel significance in the matter.

III.- Lack of legitimacy of the defendant (Insurance Agent) to be sued.

The lawsuit was initiated against GUSTAV F. HUBENER GMBH, a foreign company, and the plaintiff requested that NACORA SA, as the representative agent of the insurer in Argentina, be notified.

Among other defenses, the defendant invoked the lack of legitimacy to be sued and requested under the terms of art. 94 of the Civil and Commercial Procedure Code of Argentina, the summons of the transport companies involved, which carried out the shipments of the merchandise.

The defendant’s position was grounded on the fact that the policies were subscribed by NACORA INTERNATIONAL INSURANCE BROKER, in their capacity as local agent of GUSTAV F. HUBENER GMBH, who acted on behalf of the insurer AXA CORPORATE SOLUTIONS.

Therefore, the defendant considered they are not obligated to pay for compensation, and that the insurer should have been sued instead of the intermediary in the contract, who acts on behalf of others without compromising their personal interests and responsibilities.

It should be pointed out that the First Instance judgement determined that to resolve this issue, the content of the certificates that covered the four carriages related to the policy must be considered. The contract must be interpreted literally to respect the entirety of the parties’ negotiated intention.

Continuing with the analysis, and pursuant to the provisions of Insurance Law 17418, it distinguishes insurance agents into “independent” and “dependent or non-independent”, based on whether they represent the insurance company or not. It refers to the former as those who have the capacity of entering into contracts and issue policies, and to the latter as those who are only in charge of promoting the public offer.

However, it concluded that in all cases where there is an implied mandate arising from the appearance of the agent acting in the notice of the insurer, the latter shall be responsible. Besides, it argues that the typical effect of representation is that the legal transaction concluded by the representative within the limits of their powers is considered as concluded directly by the principal and the contracting third party, excluding the agent from its effects.

Therefore, upon analyzing the certificates and verifying that the defendant acted “as an agent of AXA CORPORATE SOLUTIONS”, the Judge decided to uphold the defense raised, as long as there was no coincidence between the subject that was summoned to the process and those to whom the law empowers to contradict regarding the matter on which the dispute is concerned, rejecting the lawsuit filed against GUSTAV F. HUBENER.

The judgment was appealed, and the  Federal Civil and Commercial Court of Appeals, Chamber I, confirmed the decision, based on the same groundings of the First Instance judgment.

IV. Summons of the third-parties to the process: effective carriers

When submitting their defences, the defendant requested to summon the transport companies to the process by virtue of Section 94 of the Civil and Commercial Procedural Code, because they were essential participants in the transportation of the cargo. This was done to protect from any potential recourse actions against them in the event that the filed lawsuit is successful.

Despite having rejected the lawsuit filed against the main defendant, the judgment confirmed the lawsuit against three of the companies involved, dismissing the claim against the maritime company for being time-barred.

One of the condemned companies appealed the decision because they understood that since the lawsuit against the main defendant was rejected, it would be a violation of the principle of congruence to uphold the action against a third party cited to safeguard a potential recourse action. They considered that, since there was no claim of the plaintiff against the condemned companies, and due to the lack of legitimacy of the defendant that requested to summon the carriers to the process, the Judge ruled ultra petita; therefore, the judgment is unlawful.

Upon analyzing the grievance, the Court considered that it should not succeed because if the claim aims at condemnation, the third party can be condemned despite the lawsuit against the main defendant was rejected, provided that their participation has been exercised with full defensive powers, acting as a true defendant.

V.- Interest rate and exchange rate for payments in foreign currency

Having resolved the First Instance judgment to condemn three of the cited third parties, it was established that they should pay the amounts in dollars resulting from the settlement to be performed, and as long as they do not exceed the applicable liability limit or the amount of Argentinian Pesos necessary to acquire said amount, pursuant the official exchange rate of the day of its effective payment, plus interests at an annual rate of 4%, accrued from the day after the mediation proceedings were closed.

The Plaintiff appealed this ruling, considering that the established interest rate was low and the exchange rate, inadequate due to  current restrictions to the purchase of foreign currency and the numerous prevailing quotations in Argentina.

The Court of Appeals partially upheld the plaintiff’s complaint: the interest rate was maintained at 4%, but the exchange rate established in the First Instance judgment was modified. Instead, the “MEP dollar” (“Stock Exchange dollar”) was set as the parameter, considering that “… currently the price of the so-called “official dollar” –established for reasons of economic, exchange and financial policy- does not represent the market value of the currency in question. It is an evident reality that, as such, integrates the objective legal truth that judges should not ignore (Rulings: 313:1333).

Thus, among the existing quotations in the financial market, the one that comes closest is that of the so-called “MEP dollar” which is linked to the purchase of public securities in pesos and their subsequent sale in dollars following the operation authorized by the regulation (pursuant. CNCom., Room D, case “Gorzelany, Alejandro c/ Fontana, Guillermo Esteban s/ ejecutivo”, of 04/13/21).…”

VI.- Conclusion

1.- In the exercise of their mandate, the insurance agent acting on behalf of the Insurer is not legitimized, since the legal transaction is considered concluded directly by the principal and the contracting third party, excluding the representative from its effects.

2.- If the possibility of invoking all defences available in the lawsuit was granted to the third party summoned pursuant to section 94 of the Civil and Commercial Procedural Code, then they could be condemned, even when the claim is dismissed against the main defendant who requested their summons.

3.- As well as in similar precedents of the Court of Appeals, the “MEP DOLLAR” is considered the appropriate exchange rate for the conversion to Argentine Pesos of the sums to be paid in foreign currency due to a judicial sentence.

NOTE: Currently, the average value of the MEP DOLLAR is approximately twice the value of the official dollar, which is why the Appellate Court’s judgment significantly increased the amount of the First Instance condemnation if it is paid in Argentine Pesos.

Maria Belen Espineira – Lawyer and Founding Partner

Maria Soledad Radicchi – Senior Lawyer