SUSEP Public Consultation Notice No. 32/2021: Mandatory Operator and Air Transport Civil Liability Insurance (RETA)

The Superintendence of Private Insurance (SUSEP) placed for public consultation Notice No. 32/2021, which presents the draft Circular that regulates RETA insurance and repeals CNSP Resolution No. 355/2017, which establishes the contractual conditions of such insurance.

The draft Circular is aimed at the revision and consolidation of normative rules, in order to adopt a principle-based approach instead of standard policy conditions, to foster the creation of new policy terms and further promote the freedom of contract, through a more simple, flexible and less prescriptive regulation.

The new Resolution proposes the following main changes:

  • The new Resolution shall apply to all RETA insurances, including those intended to cover large risks;
  • Possibility to stipulate how the Insured’s interests shall be secured (payment of compensation), as defined between the parties, provided that it is clearly and explicitly provided for in the policy terms;
  • Inclusion of coverage of damages caused to third-parties , when acknowledged by arbitral tribunal decisions;
  • Possibility for insurers to include coverage for third-party damages when acknowledged by administrative decisions issued by public authorities;
  • Restriction of RETA Basic Coverage No. 6 (Boarding Delay Civil Liability) which shall now cover only events involving boarding delay, excluding coverage for flight cancellation and overbooking;
  • Exclusion of Insured Capital Maximum Limit calculation method, including a provision that Insured Capital Maximum Limits and compensation amounts for basic coverage must only include the amounts obtained after applying the Brazilian Aeronautical Code and National Civil Aviation Agency (ANAC) regulations;
  • Restriction of RETA Basic Coverage No. 3 (Civil Liability for Personal Damages and/or Material Damages to Non-Transported Third-Parties, Caused on the Surface), in which the mandatory requirement of coverage for emergency expenses incurred by the Insured when attempting to avoid and/or mitigate the respective damages was repealed;
  • Restriction of RETA Basic Coverage No. 4 (Collision Civil Liability) and No. 5 (Cargo and/or Passengers’ Checked Luggage Damages), in which the mandatory requirement of provision of standard excluded risks and loss of compensation rights was repealed;
  • Provision that the risk acceptance clause and the deadline established for the Insurer to respond to the insurance proposal, as well as the Insured communication of any changes in the proposal content that may affect the risk acceptance analysis, must be expressly provided for in the Policy. The referred deadlines are currently of 15 days and can be freely agreed upon.
  • Flexibilization of criteria for defining the Policy coverage term of effectiveness, which can be freely agreed-upon between the parties;
  • Repeal of the mandatory requirement that the reinstatement of the Insured Capital Maximum Limits established in the Policy, after the settlement of the claim, must occur without additional premium charge;
  • Inclusion of Policy termination scenario when the Insured Capital Maximum Limit is exhausted, if applicable;
  • Establishes a period of up to 180 days, after the new Resolution comes into force, for adaptation of RETA insurance plans already registered with SUSEP;
  • Imposition of the mandatory requirement for Insurers to immediately inform ANAC of the non-payment of premium installments by the Insured, as well as of RETA Policy termination, if applicable.

The full draft Circular can be accessed at this link and interested parties may send comments or suggestions on the text by electronic message addressed to cgres.rj@susep.gov.br, in accordance with the specific standardized table duly completed, by October 11, 2021.

Demarest’s Insurance and Reinsurance team is closely monitoring the development of this public consultation through to the publication of the final version and makes itself entirely available to provide any clarifications on the subject.