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The Abuse of Rights in Lawsuits Filed by Family Groups to the detriment of Airlines

Nowadays, companies that provide services in the air transport sector have noticed a significant increase in the awards determined in the convictions for moral damages in lawsuits filed by relatives who complain of a possible defect in the provision of service (air transport).

Among the various reasons that would explain the increase of these convictions, two stand out and must be explained. The first one is the fact that other parties who are not the Plaintiffs are potentializing moral damages in the sentence imposed by the judge in his decision. The second one is the final and pecuniary result of the sum of the convictions determined by the various lawsuits filed in isolation by each of the family members who were on the same flight, who therefore have the same right to be claimed.

To explaining the first reason, it is necessary to say that according to the understanding of some judges, the concern of the Plaintiffs with the well-being of their companions at the time of travel undoubtedly serves as a preponderant element when setting the award of the conviction for moral damages, even when these people are not listed as Plaintiffs.

Such understanding can be seen, for example, in the decision below transcribed from the Rio de Janeiro State Court of Justice (TJ-RJ):

(…) Action for compensation for moral and material damages. International air transport service. Delay. Adversity. Plaintiffs accompanied by their children. Reply (pages 74/86). Inexistence of failure to provide the service. Mere annoyance. Air chaos. No moral damage. Judgment of inadmissibility (Dr. Camilla Prado – pages 112/114). Uncontroversial the cancelation of the return flight to Brazil. Boarded on the day after. The air chaos in recent months is a notorious fact. The responsibility of the defendant can be excluded by fact of third party, namely the strike of the air traffic controllers, before the assistance provided by the defendant, with the provision of food, lodging, and another flight. Absence of duty to indemnify. Appeal by the Plaintiff (pages 115/128). By origin. Counter-reasons (pages 150/159). In prestige of the court. V O T O. Air transport. Provision of service contract. Application of the Civil Code. Adversities that transcend the sphere of mere annoyance in the face of excessive delay. Providing transportation, accommodations, and food does not exclude the physical and emotional exhaustion enhanced by the Plaintiffs being accompanied by their children. Also incontrovertible is the delay in the delivery of the baggage. Alleged facts, regarding air chaos, which do not exclude the responsibility of the defendant, considering the activity carried out. Majority case-law in the sense of recognition of moral damages, despite the crisis in civil aviation at the time. Flight withdrawal notice, on 06/28/2007, as per document on page 130, allowing to glimpse fact not related to the air chaos, alleged as justification by the defendant. Moral damages set. Principles of reasonableness and proportionality that must be observed, given the way in which the fact occurred. Material damages determined in the initial and proven in the pages 23/25. IN THIS POSE, I am aware of the appeal and I am partially in favor of it, in order to justify the application in part, condemning the defendant to pay the amounts of BRL 7,000 as moral damages, for each Plaintiff, and BRL 187.83 for property damages. No payment of attorney fees. Rio de Janeiro, 07/30/2008. (Rio de Janeiro State Court of Justice (TJ-RJ) – RI: 03707024620078190001 RJ 0370702-46.2007.8.19.0001. Rapporteur: SONIA MARIA MONTEIRO, Third Class, Appeal, Publication Date: 07/24/2008 05:49).

As can be seen in this decision, it appears that the Plaintiffs were accompanied by two children who were not even co-Plaintiffs of the lawsuit examined. However, the fact that the Plaintiffs reported that they were accompanied by two children at the time of the trip, as well- shown by the decision, served to strengthen the award determined in a sentence for moral damages.

This increase can be seen more clearly in the decision issued by the Distrito Federal Court of Justice (TJ-DF) below:

SPECIAL CIVIL JUDGMENTS. CONSUMER LAW. INTERNATIONAL FLIGHT TICKET. FLIGHT CANCELATION. REACOMMODATION OF PASSENGERS IN ANOTHER FLIGHT OF ANOTHER AIRLINE. JOINT LIABILITY OF ALL EMPLOYEES IN THE SUPPLY CHAIN OF THE SERVICE. FAILURE TO PROVIDE THE SERVICE. NEW CONNECTING FLIGHT. NEW ADVERSITIES. LACK OF CONFIRMATION OF ENDORSEMENT TO ANOTHER COMPANY. NEGLECT TOWARDS THE PASSENGERS. NEED TO PURCHASE NEW TICKETS. MATERIAL DAMAGE. LACK OF INFORMATION. NEGLECT. MORAL DAMAGE PROVED. NEED FOR INCREASE. APPEALS FILED. APPEAL FILED BY THE FIRST DEFENDANT DENIED. APPEAL FILED BY THE PLAINTIFF GRANTED. AWARD CHANGED TO INCREASE THE MORAL DAMAGES FROM BRL 3,000 TO BRL 5,000. 1. THE PLAINTIFF PURCHASED TICKETS FOR AN INTERNATIONAL TRAVEL IN THE COMPANY OF THEIR TWO CHILDREN (…), I VERIFY THE AWARD DESERVES A CHANGE. IN ADDITION TO ALL THE ADVERSITIES SUFFERED BY THE PLAINTIFF, BY COMING TO THE DISAPPOINTMENT OF THE REQUIREMENTS AND THE NEGLECT WITH THE CONSUMER, IT IS CERTAIN THAT SUCH SUFFERING WAS ALSO IMPUTED TO THEIR UNDERAGE CHILDREN, A GRIEVING FACT WHICH REQUIRES THE INCREASE OF THE AWARD DETERMINED. (…)

(DISTRITO FEDERAL COURT OF JUSTICE (TJ-DF) – ACJ: 20130111282272 DF 0128227-82.2013.8.07.0001, RAPPORTEUR: FLÁVIO FERNANDO ALMEIDA DA FONSECA, DATE OF JUDGMENT: 03/18/2014, 1st CLASS OF APPEALS OF SPECIAL CIVIL AND CRIMINAL JUDGES OF THE DF, PUBLICATION DATE : PUBLISHED IN THE DJE: 01/04/2014. PAG. 558).

This assessment does not make clear that the judge challenged the principle of correlation or congruence derived from the Article 460 [1] of the Code of Civil Procedure – which elucidates the idea that the judge must stick to the object of the demand and not different from it – only because this ruling was conceived in a subjective way, difficult to be contested.

Given this and explaining the second motive, there is still the fact that these outsiders are now the Plaintiffs in another lawsuit supported by the same grounds already claimed in the previous action, or simultaneously, which, in turn, will create a “new” decision in a new case, giving the same conviction to the companies already imposed in the previous lawsuit.

For these reasons, it is clear to see that if one takes into account the final sum of the convictions of these various lawsuits filed by several Plaintiffs coming from the same grounds – which would cause the side effects already described – there will be a sum of money spent by the airlines in the final result of the lawsuits much greater than the one that should actually be spent in case there had been the filing of a single lawsuit by the Plaintiffs in a litigation consortium.

Thus, as if the damage of the companies due to the amount imposed by the judgment in the case of moral damages was not enough, there is also the enormous expense of these companies to be represented (through lawyers and representatives) in each one of these lawsuits.

Such conduct does not find an obstacle in the Civil process like lis pendens precisely because the processes do not have the same Plaintiffs. However, the cause of request and the request itself are necessarily the same.

We must add that these maneuvers, often perpetrated by unprepared lawyers or by those who intentionally use the judiciary in bad faith, also end up burdening the State. There will be a significant increase in the cost, time, and resources by the State to resolve the dispute between the parties.

This harmfulness may be expressed in the decision cited below:

CIVIL PROCEDURE. BUSINESS LAW. APPEAL. LIS PENDENS. PROCEDURAL ILLICIT. FINE OF 1% ON THE VALUE OF THE CAUSE. ATTORNEY FEES. REDUCED AMOUNT DETERMINED. APPEAL FILED. I. The filing of lawsuits with identical elements is an unlawful proceeding for the simple waste of human and material resources of the Judiciary. It represents a serious threat when the purpose of the Plaintiff is to guarantee that the judge in charge has a professional track record of being favorable to similar claims. II. The performance III. The quantification of the fine is under specific regulations: it is calculated based on the value of the cause and cannot exceed the percentage of 1%. If the opposing party suffered greater losses, the judge either applies a 20% conviction or provides for liquidation by arbitration (Article 18, § 2). IV. The Original Judge determined the award of BRL 5,000 without having followed the criteria of the legislation. V. Since the value of the case corresponds to BRL 5,000, the Court did not specify any excess damages, the fine must be the result of the incidence of a maximum percentage of 1% over that amount. VI. The forecast of attorney fees of BRL 10,000 does not reflect the complexity, the importance of the cause, since the Federal Government presented similar defense in several cases. There was also an early trial. VII. The foundation of equity recommends the reduction. The Union is an association, a non-profit organization, which will certainly suffer great embezzlement by paying that award. VIII. The amount of BRL 2,000 is more reasonable. IX. Appeal accepted. (TRF-3 – AC: 13081 MS 0013081-34.2003.4.03.6000, Rapporteur: FEDERAL CHIEF JUDGE ANDRÉ NEKATSCHALOW, Judgment Date: 03/17/2014, FIFTH CLASS).

Luckily, the judiciary, as a way of defending itself against these harmful behaviors, even in a timid manner, began a decree of bad faith litigation to the Plaintiffs who use their rights in violation of the other principles guiding the Brazilian civil process, as shown below:

CIVIL APPEAL. CIVIL RESPONSABILITY. LAWSUIT FOR INDEMNIFICATION FOR MORAL DAMAGES. REGISTRATION IN THE CREDIT BUREAU AS A DEBTOR. IMPROPER MULTIPLICATION OF LAWSUITS. ABUSE OF RIGHT. SENTENCE OF DENIAL MAINTAINED. CHARACTERIZED BAD FAITH LITIGATION. This is the 4th lawsuit filed against the Defendant on the same fact, and it is also verified by the Themis system that there are other two (5th and 6th) lawsuits in process in the First Instance, all leading to believe that they refer to the same fact as the previous ones. Such option (filing 5 or 6 different lawsuits, under the protection of gratuity, when only one would have been enough to obtain the desired result) is at least unethical, consisting of a real abuse of the right to sue, which must be repelled with vehemence by the Judiciary. As a consequence, formally, I consider the plaintiff is litigating in bad faith, according to the Article 17, items II, III, V, VI, and VII of the Code of Civil Procedure, determining her to pay a fine of 1% on the value of the case, as well as compensation to the Defendant, which is set at 20% on the same basis, all of which is fulfilled in the Article 18, § 2, also of the CCP. Sentence of extinction of the case maintained. Related searches (Civil Appeal No. 70060427564, Ninth Civil Chamber, State of Rio Grande do Sul Court of Justice, Rapporteur: Eugênio Facchini Neto, Judge on 07/16/2014).

It is important to emphasize that there are judges who go beyond, repressing not only the Plaintiff, but also his lawyer, in order to inform the Bar Association (OAB) of the situation in order to establish a possible violation of the Code of Ethics. Read as follows:

CIVIL PROCEDURE – FILING OF IDENTICAL LAWSUITS – BAD FAITH LITIGATION – INVIABILITY IN THE CONCRETE CASE – COMMUNICATION TO THE BRAZILIAN BAR ASSOCIATION AND THE FEDERAL PROSECUTION SERVICE. 1. The simultaneous filing of twenty identical lawsuits constitutes unfair and malicious behavior, not weakened in the reasons of appeal. 2. The imposition of a procedural penalty for bad faith litigation in the specific case is unfeasible, since the approval of the request for withdrawal occurred even before the other party was served. 3. However, the procedure of the Plaintiff’s lawyer, in violation of the dignity of justice, must be informed to the Bar Association of the noble class of lawyers in order to investigate any breach of the Code of Ethics. 4. The application made at the trial session shall be granted so that copies may also be sent to the Federal Prosecution Service. (TRF-3 – AC: 29388 SP 2001.61.00.029388-4, Rapporteur: FEDERAL CHIEF JUDGE MAIRAN MAIA, Judgment Date: 10/30/2002, SIXTH CLASS)

Therefore, there is no doubt that in case the judge finds the existence of isolated lawsuits filed by the same family group, but based on the same fact, he must determine the connection of all lawsuits in one, in order to avoid financial and unnecessary costs to the airline companies, the improper enrichment of the Plaintiffs, and the waste of the state apparatus in handling the lawsuits.

Source: Text originally published in Jus Navigandi in January 2016.

Emanoel Dantas de Araújo Jr.