He Won a Billion Dollar Compensation, But He Died of Covid Before He Received

The Covid-19 pandemic has mobilized companies around initiatives to mitigate the health, social and economic damage caused by the virus. In terms of value, the main donation came from Itaú Unibanco, which, alone, allocated R$ 1 billion to fight the disease, the largest philanthropic initiative ever carried out individually to face the new coronavirus in Brazil.

Although quite generous for a bank – which profited BRL 26.8 billion in 2021 – the donation did not, of course, prevent 657,300 lives from being lost to the disease in the country until last Monday (21). Among them is that of the gaucho businessman Paulo Lerner, a former milkman who became the owner of the largest courier company in Rio Grande do Sul in the 1990s, Portocar.

Lerner died on January 20 of this year, at the age of 78, without receiving compensation of R$1.7 billion to R$2.8 billion from Itaú Unibanco, as a result of a lawsuit filed 24 years ago. The STJ (Superior Court of Justice) recognized in 2012 the right of Lerner, who filed a lawsuit against the bank in 1998 for contractual termination.

But the Court has been trying to define the amount of compensation for ten years. Two expertises have already been annulled by the judge responsible for the case, the minister of the STJ Luis Felipe Salomão. The third expert was appointed in February.

“Itaú Unibanco presented in the process all available information regarding the relationship it maintained with the company during the period in which it hired its services. The bank also clarifies that the figures reported by the company in the aforementioned process do not match reality”, informed the bank, in a note to the sheetreferring to the values ​​under discussion.

This is one of the largest individual actions underway in Brazil today. There is no official ranking of the highest compensation ever paid in Brazil, but the largest this century, in the amount of R$10.6 billion, was the result of a lawsuit filed by Copersucar against the Federal Government.

In this case, however, it was a collective action, involving dozens of mills associated with Copersucar at the time, who complained about the losses caused by price fixing in the 1980s, practiced by the Sugar and Alcohol Institute (IAA). The action lasted for about 20 years and began to be paid in 2019.

“One of the bank’s lawyers told my father that he would never see the color of that money, nor his children, nor his grandchildren,” he told sheet the businessman’s daughter, Fabiana Lerner, 46, who had worked with her father since she was 17. “They were extremely cruel and my father died sad because he knew he was fighting for a just cause that to this day has not been met.”

According to Fabiana, at a conciliation hearing in October last year, one of Itaú Unibanco’s lawyers said that the process was not even contingent on the bank’s balance sheet.

“At that hearing, which proved to be fruitless, my father, in poor health, after undergoing a tracheostomy and using a gastric tube, still trying to recover from the sequelae of severe Covid, said: ‘I’m tired’.”

Portocar maintained a contract with Unibanco (which merged with Itaú only at the end of 2008) between 1990 and 1996. Under the contract, Portocar had to transport pouches between the bank’s branches in Rio Grande do Sul , from the capital to the interior and vice versa. In these pouches, there were documents, checks and cash.

“Portocar didn’t have an armed team, nor an armored car, but it supplied ATMs”, says Fabiana. According to her, hiring a common company to transport bags was up to five times cheaper for the bank than hiring a value carrier at the time.

“But this brought us problems: the company’s cars were robbed about 30 times during the period in which the contract was in force”, he says. “Fortunately, no deaths, but there were injuries.”

In 1992, Portocar won a bid from Febraban (Brazilian Federation of Banks) to transport the pouches of associated banks – in these cases, according to Fabiana, they were just documents and checks. “Money, Portocar only transported to Unibanco”, she says.

In 1996, the bank decided to terminate the contract, in order to continue being serviced through the agreement signed between Febraban and Portocar. In 1998, Portocar went to court on account of the termination, asking for the services rendered to be equivalent to those of a cash carrier.

“We went to court asking for lost profits – how much the company stopped earning by selling below market – and the emerging damages, which resulted from the termination of the contract”, says lawyer Luís Pascual, representative of the Algarve fund, which bought a small part of Portocar’s credit rights in the action.

In 2012, in a final decision, the STJ won the case to Portocar. The problem, according to Pascual, is fixing a value for the indemnity: the calculation must be based on the amount transported by the company, information that only the bank has.

“But the bank refuses to provide complete data, from all 407 thousand collections made in the period”, says the lawyer.

‘The more time passes, the cheaper it is for the bank’

Faced with the impasse, the Justice twice appointed experts to define the value. “Based on the expert’s calculations, three possible values ​​of compensation were reached: R$ 1.7 billion, R$ 2.1 billion and R$ 2.8 billion”, says Pascual. “But the judge responsible for the case in the STJ, Minister Luis Felipe Salomão, annulled the two expertises after an appeal by Itaú Unibanco”, he says.

“This goes against Precedent 7 of the STJ itself: ‘The claim of simple reexamination of evidence does not give rise to a special appeal'”, says Pascual. Sought, the court informed, through its advisory, that “the position of the STJ is in the file”. A third expert was appointed last month.

“The longer the action goes on, the cheaper the indemnification: the court’s interest is 12% per year, while the return on the bank’s equity is 23% per year”, says Pascual.

Portocar no longer exists. Its activities ended on April 28, 2006. At the time, the company’s only contract was with Febraban, which terminated the agreement in the same year. “Itaú Unibanco put pressure, on account of our lawsuit in court, for the contract with Portocar to be terminated”, says Fabiana.

The company had around 150 employees and, shortly before seeing its contract terminated by Febraban, it had ordered 30 brand new cars to renew its fleet.

Paulo Lerner, the milkman turned millionaire, left three children and five grandchildren. Until his death, he had to sell half of the estate. “Including a farm, which also had sentimental value: that’s where he played as a child, and as an adult he bought it,” says his daughter.

“My dad said he wouldn’t leave until he got this sorted out, but he did.”

Graduated in Accounting, Lerner drove for years a Ford F-350 truck transporting milk between the cities of Montenegro and Feliz – in the latter, he met his wife, Noeli. The very religious couple received a blessing from Pope Francis in 2019, when they celebrated their golden anniversary.

Paulo Lerner was also a waiter, taxi driver and car rental company. “He loved to drive,” says Fabiana. He raised cattle. In 1982, he founded Portocar.