Introduction. Dennys Zimmermann Felipe Rosa

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1 Introduction Dennys Zimmermann Felipe Rosa The economic crisis, compounded by a nefarious combination of economic recession, decline of aggregate demand, high interest rates and increased public and private debt, fueled by the political instability generated by the impeachment process of the former President and by the progress of "Operation Lava-Jato, "triggered a substantial increase in the number of companies that, seeking to restructure, required their judicial recovery. According to data provided by the "Serasa Experian Bankruptcy and Recovery" indicator, the number of judicial recoveries required in 2016 was 44.8% higher than in During the year 2016, there were 1863 applications for judicial reorganization, some of which involved companies that had once figured as giants in the construction and energy segments such as Schahin and OAS. On June 29, 2016, the "Oi Group" - formed by the companies Oi S / A, Telemar Norte Leste S / A, Oi Móvel S / A, Copart 4 Participações S / A, Copart 5 Participações, Portugal Telecom International Finance BV, and Oi Brasil Holdings Coöperatief UA - had accepted its request for judicial recovery, considered to be one of the most relevant request s in the recent history of the country. The increase in the number of judicial recoveries and, in particular, the entry into judicial reorganization of companies of considerable size, evidently, has repercussions in the scope of the insurance market. It is not our purpose according to the natural limitations of space and time - to address all these impacts, which is why we will concentrate our efforts on the insurance warranty contracts, since they are the ones that have most aroused the interest (and the concern) of the insurance market. Two aspects, in particular, will be discussed here: (i) whether or not the insurance companies issuers of warranty performance policies are subject to the judicial reorganization regime, when such policies have been issued prior to the request of reorganization; As well as (ii) the repercussions of the homologation of the judicial reorganization plan by the judicial authority, after its approval at a meeting of creditors - which results in the consequent novation of debts - in relation to the insurance policies that have been issued as warranties of the same Debts. As for the first aspect, we feel very comfortable with the position defended here, because it is the same one that we have sustained in the judicial defense of the Insurers, with success until now (still, however, without a final decision). The second, in turn, depends on the fulfillment of the many claims expectations already notified to the Insurers. 1 Available in:

2 General notes on the effects of the Judicial Recovery Scheme The art. nº 47 of the Law No /2005 (the "Bankruptcy and Judicial Recovery Law" - or simply "LRF") provides that the judicial recovery of companies is intended to remedy the economic and financial crisis of the entrepreneur or of the business society, in order to Preserve the company as a unit of production that generates jobs, taxes and wealth, as follows: "Art. 47. Judicial Recovery aims to make it possible to overcome the economic and financial crisis of the debtor in order to allow the maintenance of the source of production, the employment of workers and the interests of creditors, thus promoting the preservation of the company, Its social function and the stimulus to economic activity. " The basic principle of the LFR is the preservation of the company, especially in the face of the interests that surround it. In the words of Fábio Konder Comparato, the company is the essential cell of the market economy 2 and fulfills a relevant social 3 function, because, by exploiting the foreseen activity in its social object and pursuing its objective (profit), it promotes economic interactions (production or circulation of goods or services) with other agents of the market, consuming, selling, generating jobs, paying taxes, moving the economy, developing the community in which it is inserted, finally, creating wealth and helping the country's development, not because It is its ultimate goal - in fact, it is not - but simply because of a beneficial side effect provided from the exercise of its activity. Therefore, it is evident that the approval of the request for judicial reorganization produces legal effects that seek to make it possible to overcome the situation of economic and financial crisis in order to allow the maintenance of the source of production, the employment of workers and the interests of creditors. These effects are summarized below: (I) The suspension of lawsuits and executions for a period of 180 (one hundred and eighty) days from the approval of the processing of the Judicial Recovery (the so-called stay period), except for those actions that demand an illiquid amount; Labor claims and tax executions; the lawsuits filed by the owner of real estate or movable assets by commercial landlords, by owner or promising seller of the property whose contracts contain irrevocability or irreversibility clauses, including real estate developments, or by owners in a purchase 2 COMPARATO, Fábio Konder. A reforma da empresa. Revista de Direito Mercantil, Industrial, Econômico e Financeiro, Nova Série, a. 22, n. 50, p , abr./jun COMPARATO, Fabio Konder. Estado, empresa e função social. Revista dos Tribunais, São Paulo, v. 732, a. 85, p , out

3 agreement with a domain reservation; And the lawsuits filed to reimburse the amounts given to the debtor, in national currency, as a result of advances regarding an exchange contracts for export; (II) Installment of tax debits, in accordance with the National Tax Code and the specific legislation; (III) Exemption from the obligation to submit negative certificates for the exercise of its activities, except for contracting with the Public Authorities and for the receipt of benefits, tax or credit incentives; (IV) Novation of the previous credits, thus considering all those existing on the date of the application for judicial recovery, even if they have not expired. Specifically, here, we are interested in the last of these effects, because, as we know, the viability of overcoming the economic-financial crisis is usually achieved by sacrificing the interest of creditors, which more often implies a substantial "haircut "(discount) of the value of the debt, the application of grace periods during which no interest is charged, and the installment of the payment to be lost sight of, among other measures of equal or greater severity. For unsecured creditors, the situation is even more unfavorable since, in the event of bankruptcy, the satisfaction of their claims will be preceded by the satisfaction of labor claims, of those with real estate guarantees and Treasury guarantees, in such a way that the stoppage of business activities shall be likely to result in the absence of resources with which the debtor can discharge such obligations. Subjection of Insurers Issuers of Warranty Insurance Policies for judicial recovery Which companies are subject to the judicial recovery regime? Provides the art. 49 of the LRF as follows: "Art. 49. All claims existing at the date of the request, even if not due, are subject to judicial recovery. " The fact that the abovementioned provision affirms that the "existing" claims at the date of the request are subject to judicial recovery led some Borrowers under recovery to enlist in the creditor s relation the issuing Insurer of policies prior to the date of the request. It is a question about which there is no relevant judicial precedent and, more than this, that has never motivated a greater discussion in doctrine. Therefore, it is plausible to suppose that this controversy will only be resolved in a degree of appeal to the Superior Court of Justice. Well. From our part, we have maintained - and so far successfully - that the argument of the Borrowers is based on a mistaken premise: the issue is that the warranty insurance policy, although issued prior to the request for recovery, only puts the Borrower in the condition of "debtor "of the prize; Therefore, if the prize

4 has already been fully paid and, therefore, there is no debt yet to be satisfied in this respect, the Insurer should not be related to the board of creditors subject to judicial recovery (unless, before the request for recovery, there was already a loss event liquidated by the Insurer). It is what happens if, in the course of judicial recovery, the guaranteed contract comes to be defaulted and, as a consequence, the Insurer is required to pay indemnity to the Insured? The exercise of the subrogation in the rights and claims of the Insured against the Borrower must observe the dictates of the judicial recovery plan, including the novation resulting from its approval by the Court? No way, and we'll demonstrate it next. The Insurer, during the term of the insurance contract, fulfills an obligation to guarantee the insured s interest (legitimate interest); If the event occurs, it will be incumbent upon the Insurer to perform the duty to indemnify. Let us say that, following the request for judicial recovery, the guaranteed contract remains in force - as, in fact, is what only happens - and, only later, the default occurs, hence coming (absent exclusive circumstance of coverage) the fulfillment of the Obligation referred 4 at the policy (performance by third parties of the subject matter of the principal agreement or cash indemnification of the damages caused by the Borrower's default). In this case, the Insurer's credit to the Borrower will only exist if and when the Insurer pays the indemnity to the Insured, at which time the subrogation will be performed. While the claim is not indemnified, the policy issued only incorporates the guarantee obligation mentioned above, in the exact terms of art. 757 of the Civil Code. It is so that, in order for the Insurer to be appointed as a creditor within the general framework of creditors, it would be necessary, for obvious reasons, that the Insured should also appear as creditor; after all, in order for the Insurer, as "guarantor", appear s in the above mentioned framework, the Insured - which would, ad argumentandum, be the "primary creditor" - should have been included in it. In the case of a subrogation claim and being the subrogation a substitute (step in the shoes) of the original creditor by the one who has subrogated on his rights and claims, the absence of the original creditor from the relation of creditors presented by the Borrower evidences that the preexistence of the policy is not enough to, alone, lead to the inclusion of the Insurer. For no other reason, in fact, this "credit" that the Borrower claims should be included in the general creditors framework may, in fact, even not come into existence. This is not only because the risk (default) may never materialize, but also because, even if it materializes, it is possible to have no damages to be compensated (imagine, for example, the hypothesis - not uncommon - in that the insured, due to the existence of a contractual balance, does not incur any extra cost to complete the contract and, therefore, does not claim payment of compensation to the Insurer) 5. 4 Admitting, to argue, that coverage is already effective. 5 In addition, the Insurer may, in theory, exercise the option to continue execution of the guaranteed contract using the balance of payments due to the Policyholder.

5 Moreover, if the guaranteed contract - for example, a concession or permit - continues in force after the approval of the judicial reorganization, any credits 6 resulting from the eventual default of subsequent obligations should be considered "Extra-bankruptcy", that is, they will not be submitted to its Effects. Thus, it is concluded that the potential and still non-existent credit of the Insurer is conditioned by: (i) future and eventual characterization of a claim; (ii) the regulation of such eventual claim, subject to the provisions, limitations and exclusions contained in the Contract Conditions; as well as, and fundamentally, (iii) the fulfillment of the obligation described in the policy, from when, there, yes (and only from then on), it can be spoken of the "existence" of a right of credit regarding the Borrower. Judicial Warranty Insurance By virtue of the provision in Paragraph 7 of Art. 6 of the LRF (which excludes Judicial Recovery from judicial executions), 7 we will not address in this article the repercussion of the effects of the Judicial Recovery regime regarding the warranty insurance policies for tax execution and warranty insurance administrative tax installment, restricting our analysis to the other modalities. Regarding the judicial warranty insurance, it is known that some Borrowers have argued in meetings with the Insurers that the novation operated with the homologation of the judicial recovery plan would imply in the automatic cancellation of the policies. The rationale is based, fundamentally, on the fact that, as already stated, among the most relevant effects arising from the decree of Judicial Recovery, we highlight the novation of the credits: "Art. 59. The judicial recovery plan implies in the novation of the credits prior to the request and obliges the debtor and all creditors subject to it, without prejudice of the guarantees. The novation is defined by art. 360 of the Brazilian Civil Code as being the extinction of an obligation, either through the creation of another ("new") instead of the 6 It should be noted that it is common for the contracts to establish as a hypothesis of their resolution "by right" the application or the granting of a request for Judicial Recovery. We emphasize that the validity and effectiveness of such a contractual provision is controversial, and it is countered by the argument of some scholars that, if applied in any case of judicial recovery, it would deprive itself of recovering (a) Of means with which to preserve its economic activity, making it impossible for the LRF to fulfill its purposes. 7 In order to facilitate the recovery of companies that are in financial difficulties, Complementary Law 118/2005 was published, which included two paragraphs to art. 155-A of the CTN, which are paragraphs 3 and 4, thus creating a special installment for companies involved in Judicial Recovery, so that all federated entities offer them special conditions, different from those established for other debtors of the Public Treasury.

6 previous one ("objective or real novation"), or through the substitution of the debtor or the creditor ("Subjective novation passive or active") 8, and results from the homologation of the judicial recovery plan by the Judicial Authority. Such approval results, or because no creditor manifests objection to its terms within the legal term, or, when there is an objection, after approval of the plan in a meeting of creditors. From this it follows that, when a guaranteed obligation is novated, it is "replaced" by the obligations assumed in the plan, conditioned to the implementation and fulfillment of the plan within two (2) years from the granting of the recovery; That is to say, if the Plan is not fulfilled by the recovering party in that interregnum and, as a consequence, occurs the conversion of the judicial recovery into a bankruptcy, creditors will return, with all their rights, to the status quo ante. Knowing that (i) the novation shall terminate the secured obligation without that, as a result, may the creditor claim the default against the recovering party; (II) that the judicial warranty insurance has an accessory character - at least for most of the specialized doctrine and in few precedents who have dealt with the subject -; And, still (iii) that "the accessory follows the fate of the principal," maintain the Borrowers that the obligation of the Insurer will also be extinguished with the extinction of the debt. The logic of this reasoning seems irrefutable: if the claim only occurs with the default of the guaranteed obligation and if there is no need to speak of default in the novation resulting from the homologation of the plan (ie one obligation is "replaced" by another), the policy must be canceled. In addition, the novation - which will operate due to the approval of the plan presented by the Borrower - will result in a change in the form of fulfillment of the guaranteed obligation without the consent of the Insurer, giving rise - following this same reasoning - to the application of the known excluder Coverage. Finally, it is argued that the secured obligation would not be the default of the debt in the original conditions, but rather the obligation defined procedurally in the execution, reason why, as the individual execution is extinguished against the debtor, from this point it would result in the extinction of the Warranty. Although it is not denied the possibility that such an understanding may be accepted by the Judiciary, neither can one lose sight of the rule contained in 1 of art. 49, of the LRF, which excludes from the judicial recovery the co-payers, guarantors and obligors of return, providing that the creditors of the recovering will "maintain" against all of them their rights and privileges: " 1 The creditors of the debtor in judicial reorganization retain their rights and privileges against the co-obligors, guarantors and 8 Art It is given the novation: I - when the debtor contracts with the creditor new debt to extinguish and replace the previous one; II - when new debtor succeeds to the old, being this quite with the creditor; III - when, by virtue of a new obligation, another creditor is substituted for the old one, the debtor being removed with the latter.

7 obligors of return. Such a device, it should be noted, does not specifically mention the judicial warranty insurance, resulting in two possible interpretations: (I) The first is that, since judicial warranty insurance was not expressly mentioned in 1 of art. 49, of the LRF, the characterization of the default of the guaranteed obligation would be extinguished with its novation. (II) The second is that, because of the similarities between the warranty bail and the warranty insurance (notably as to its fidejussory nature), the Insured would "retain" his rights against the Insurer in the original extent, ie, as had not been granted the judicial recovery of the Borrower. Favorably to this position would be the argument that, if the retention of the right applies even to the free guarantor, there would be no reason not to apply it to a "professional guarantor", as is the Insurer. It should be noted that if the second understanding prevails, the Insured could claim from the Insurer the payment of indemnity due to the default of the guaranteed obligation regardless of its novation, and the Insurer, in indemnifying the Insured, would be subrogated to the rights and against the Borrower. That is, since the Insurer is the "professional guarantor" of the risk, it would be indemnified as provided for in the main or guaranteed contract. In turn, when the subrogation occurred, the Insurer would replace the creditor (the Insured) and would then exercise its right of return. It should be noted that if the credit was launched in the general creditors framework, the Insurer, in subrogation, will be subject to the judicial recovery plan (and therefore, the discount, grace period etc. contained therein), as if he was the creditor himself. We have no doubt that the argument in favor of retaining the guarantee is attractive to creditors. Firstly, because the affirmation that "there would be no default", but rather a mere novation, loses importance when one takes into account that the novation operated by the homologation of the judicial recovery plan is a phenomenon legally distinct from that verified as a creditor and debtor, voluntarily, decide to replace their compulsory bond with another. The novation that takes place in the process of judicial recovery is sui generis, and it is so that it produces its effects independently of the individual consent of the creditor, retains the primitive guarantees, and, as it should be remembered, undoes itself in the hypothesis of noncompliance with the plan (and, consequently, of decree of bankruptcy), when then the creditors will have reconstituted their rights and guarantees in the same conditions originally contracted. With regard to this last point, see what is available in art. 61, 2 of the LRF:

8 "Declared the bankruptcy, creditors shall have reconstituted their rights and guarantees under the conditions originally contracted, less any amounts paid and subject to the validly practiced acts in the context of judicial recovery. However, even if it is possible to defend the termination of the insurance guarantee, what will happen if, afterwards, the debtor under Recovery fails to fulfill its obligation? Would it be possible to argue that the abovementioned device would not apply to the insurance policy guarantee? What would be the basis for qualifying him? Judging a similar case (which, it should be noted, was not a warranty insurance), the Superior Court of Justice decided, in SPECIAL APPEAL No. 1,326,888 - RS (2012/ ), as follows: "The controversy now analyzed lies at a later stage, precisely in the second phase of the recovery, when the plan had already been approved by the court, in accordance with the authorizing requirements. The relevance of the matter is that, unlike the first phase, in which the shares are suspended, the approval of the plan operates novation of the credits and the homologation decision constitutes, itself, a new judicial executive title, pursuant to the provisions of art. 59, caput and paragraph 1 of Law no / Check the wording of the legal precept: Article 59. The judicial recovery plan implies novation of the credits prior to the request, and obliges the debtor and all creditors subject to it, without prejudice to the guarantees, observing the provisions of paragraph 1 of art. 50 of this Law. Paragraph 1 - The judicial decision granting judicial recovery shall constitute a judicial enforceable title, pursuant to art. 584, item III, of the caput of Law No. 5,869, dated January 11, Code of Civil Procedure. Thus, in order to thrive on the applicant's argument, with the novation of the debt, the executions brought against the recovering company and its guarantors should be extinguished. The guarantees would only be reinstated in case of future decree of bankruptcy, by virtue of art. 61, 2 of the Law, according to which, "after the bankruptcy, creditors will have reconstituted their rights and guarantees under the conditions originally contracted, less the amounts and amounts that may be paid and subject to the validly practiced acts in judicial reorganization ". However, with due regard always, the argument does not stand up to a more detailed analysis of the recovery system. It is certain that one of the main effects of the civil novation is the extinction of the accessories and guarantees of the debt, as foreseen in art. 364 of the Civil Code,

9 notwithstanding that the civil law itself allows for the proviso regarding the maintenance of the guarantees, with the exception of the real ones granted by third parties foreign to the novation. Check the wording of the legal provision: Art The novation extinguishes the accessories and guarantees of the debt, whenever there is no stipulation to the contrary. However, the creditor will not take advantage of the pledge, the mortgage or the antichrists if the assets given as collateral belong to a third party who was not a party to the novation. The Civil Law doctrine confirms that the aforementioned article contemplates two major rules: "one, regarding the extinctive effectiveness of novation in relation to the original debt accessories, another concerning the protection of goods given by third parties in collateral" (MARTINS-COSTA. Judith, comments on the new Civil Code, volume V, volume I. 2 ed. Rio de Janeiro: Forensic, 2005, p.606). And continues: What is clear there is that the novation extinguishes the previous credit ipso iure, so that the privileges, the real rights of guarantee and the bond, attached to it, also are extinguished, unless otherwise agreed, since art. 364 contains operative provisions. [...] The final part of art. 364 logically connects with the hypothesis of the existence of a valid and effective stipulation by which to adjust the maintenance of the accessories and guarantees of the novice debt. This is a restriction on the debtor's right, because of the protection of the interests of the third party, strange to the novice business, which offered real guarantees (mortgage, antichrists or pledge). This means that, even if there is no extinguishing effect on the other guarantees, as there is a stipulation thus determining, this effect will occur with respect to the real guarantees if the assets given as collateral are from third parties (MARTINS-COSTA. 606 and 609). In fact, it is perceived that the novation foreseen in the civil law is very different from that disciplined in Law n / If civil novation causes, as a rule, to extinguish the debt guarantees, including the real ones provided by third parties outside the pact (article 364 of the Civil Code), the novation resulting from the recovery plan brings, as a rule, the reverse, maintenance (Article 59, caput of Law / 2005), especially the real ones, which will only be abolished or replaced "with the express approval of the creditor holding the respective guarantee", at the time of the sale of the encumbered asset (art. 50, 1).

10 On the other hand, the specific novation of the recovery is dissolved in the hypothesis of bankruptcy, when then "creditors will have reconstituted their rights and guarantees in the conditions originally contracted" (article 61, 2). It follows that the judicial reorganization plan operates a sui generis novation and is always subject to a resolving condition, which is the possible non-compliance with what was agreed in the plan, a circumstance that differentiates it from the other, common, provided for in civil law. In this sense, for all, check out the magisterium of the doctrine on the theme: The novation, changes and renegotiations made in judicial reorganization are always conditional. That is, they are valid and effective only in the event that the recovery plan is implemented and succeeded. In the event of the collapse of judicial reorganization in bankruptcy, creditors return, with all their rights to the status quo ante. The replacement of the guarantee in the example mentioned above is dissolved, and the creditor will be paid, in the bankruptcy process, as if there had been no recovery plan of the debtor. It should also be noted that creditors subject to the effects of judicial reorganization preserve intact their rights against co-payers, guarantors and forced returns. In this way, the bearer of a promissory note signed by the recovering company may execute the guarantor of such credit, as if there were no benefit. It is the responsibility of the guarantor to support, in this situation, the direct sacrifice represented by the judicial recovery of the defendant (COELHO, Fábio Ulhoa, Commercial Law Course, volume and São Paulo: Saraiva, 2009, p.425). In the same direction, José da Silva Pacheco, on the maintenance of the rights of the creditor against third parties co-sponsored (see PACHECO, José da Silva, judicial recovery process and bankruptcy ). Therefore, even though the judicial reorganization plan does not update the debts submitted to it, the real or trust guarantees are, as a rule, preserved, a circumstance that enables the creditor to exercise its rights against third party guarantors and imposes maintenance of the actions and executions carried out in In the face of guarantors, guarantors or co-obligors in general. Indeed, there would be no logic in the system if the preservation of the rights and privileges of creditors against co-guarantors, guarantors

11 and obligors of return (Article 49, 1, of Law / 2005) concerned only the temporal interregnum that mediates the deferral Of the recovery and approval of the plan, ceasing such rights after the definitive concession with judicial approval. In the same sense, there is the ruling given in REsp MT (Min. Marco Aurélio Bellizze, judged on 9/13/2016): "The arguments put forward by the appellants must be dismissed in a peremptory manner, namely that the novation brought about by the approval of the judicial reorganization plan would, in itself, entail immediate extinction of the original principal obligation and, consequently, of the guarantees offered to it as an ancillary obligation. Effectively, the novation operated by the judicial recovery has significant peculiarities, to distinguish, substantially, from the civil novation, foreseen in articles 364 and following of the Civil Code. As it is, the "extinction of obligations", resulting from the homologation of the judicial recovery plan, is conditional on the effective compliance with its terms. Failure to implement the aforementioned resolution, by express legal provision, "the creditors will have reconstituted their rights and guarantees in the conditions originally contracted" (article 61, 2, of Law / 2005). Regarding the guarantees, as seen, art. 59 caput is expressed in preserving them, which enables the respective creditor to exercise its rights against third party guarantors and imposes the maintenance of actions and executions promoted against supporter, guarantors or co-guards in general, except for the member with unlimited liability and solidarity: In this sense: / MG, Rapporteur Minister Luis Felipe Salomão, Fourth Group, Dje 30/11/2012; AgRg in Resp 1,191,297 / RJ, Rapporteur Minister João Otávio de Noronha, Third Group, Dje 1/7/2013 ; AgRg in Ed. No Resp 1,280,036 / SP, Rapporteur Minister Sidnei Beneti, Dje 5/9/2013)." Even if, again, it is not an insurance guarantee, the decisions are somewhat clear as to whether the novation operated as a result of the application of the LRF differs from that provided for in the Civil Code. This is because the novation of the LRF is imposed on creditors because, in weighing conflicting interests, the maintenance of the company as a source of jobs and wealth over the individual of the creditor, on the other, prevails. There is a rationale, as we can see, of a principle for the application of the LRF. In view of

12 this, it seems to us somewhat difficult to apply the same reasoning to favor the interest of the Insurance Company, which, as "professional guarantor", carries out a credit risk analysis and, through the payment of remuneration, issues the insurance policy guarantee. Therefore, even as insurance lawyers, we wish to be able to state with absolute certainty that the policy will be canceled, the Insurers must be aware of the risks involved. It is hard to predict how the Judiciary will react to arguments on both sides. The Insurers, however, should not under any circumstances discount the possibility that, with the possible acceptance of the second understanding, their expectations would be converted into claims. Conclusions The effects of the judicial recovery scheme on warranty insurance contracts are still pending decision by the Courts. Regarding warranty performance insurance whose policies were issued prior to the request for judicial reorganization, the initial position has been to consider that, if the guaranteed contracts continue to be executed and there were no outstanding claims until then, the Insurers will not be Subject to recovery. In relation to insurance guarantees in which the creditors are included in the general creditors framework, there are two possible interpretations, one in the sense that the homologation of the plan and the consequent novation of the guaranteed obligation will terminate the obligation of the Insurer (or application of the Excluding "coverage"), because "the accessory follows the lot of the principal"; And another in the sense that art. 49, paragraph 1, of the FRL will apply to the judicial insurance guarantee to enable the creditors to exercise their rights against the Insurer as if there had not been an approval of the legal recovery of the Borrower, since it is a "professional guarantor" Equivalent to the guarantor. In this second scenario, the Insurer would replace the creditor in the framework and exercise its right of subrogation in the form of the recovery plan. This second alternative, as it is seen, is undoubtedly the most unfavorable to the Insurers, but it should not be overlooked in the analysis of its possible exposure, in view of the decisions rendered by the Superior Court of Justice, in REsp. No. 1,326,888-RS and in REsp # 1,532,943-MT.