Introduction
Turkey's geopolitical and climatic realities make natural disasters like earthquakes and fires an inevitable part of life. These catastrophes, in addition to profound human losses, leave devastating impacts on the assets of individuals and the economy as a whole. It is at this juncture that the insurance mechanism comes into play as a safeguard; it assumes a vital role in establishing financial security and accelerating the recovery process in the aftermath of a disaster. For victims, achieving a swift and fair claim to compensation arising from an insurance policy after a disaster is a fundamental necessity for rebuilding their lives.
This report examines the insurance claim processes that arise following earthquakes, fires, and similar natural disasters from a legal professional's perspective. In light of legislation, doctrine, and current judicial decisions, it addresses the subject with a holistic approach, aiming to illuminate the fundamental legal distinctions between voluntary property insurance policies (housing, workplace, fire, etc.) under the Turkish Commercial Code (TCC) No. 6102 and the Compulsory Earthquake Insurance (DASK) regulated under the Disaster Insurance Law No. 6305, as well as the practical consequences of these distinctions in the claim process.
While this study prepares the ground for policyholders to grasp their rights and obligations more clearly, it also aims to serve as a reference source for legal professionals and insurance sector stakeholders in this complex legal labyrinth.
Chapter 1: The Legal Foundations of the Insurance Contract and the Obligations of the Parties (Within the Framework of the Turkish Commercial Code)
The legal backbone of all private insurance types other than Compulsory Earthquake Insurance (DASK) (such as housing, fire, auto, etc.) is constituted by the Turkish Commercial Code No. 6102. To correctly understand the dynamics of the claim process requires a deep examination of the contractual framework drawn by this law and the mutual debts and obligations of the parties.
1.1. Formation of the Insurance Contract and the Insurer's Primary Obligations
The insurance contract is a contract in which the insurer, in exchange for a premium, undertakes to compensate for a loss that damages a pecuniary interest of the policyholder due to the occurrence of a peril (risk), or to pay a certain sum in the face of specific events. Within this contract, the insurer's main obligations are as follows:
Obligation to Issue a Policy
Article 1424 of the TCC imposes a clear obligation on the insurer: if the contract is made directly by the insurer or its agent, it must deliver a policy signed by authorized persons to the policyholder within 24 hours, and in other cases, within 15 days. This policy is the primary means of proof, containing the terms of the contract, the limits of the coverage, and the rights and obligations of the parties. Holding the insurer responsible for damages arising from its failure to fulfill this obligation in a timely manner is an important legal guarantee protecting the policyholder. Even in cases where no policy is issued, the existence and content of the contract can be proven within the framework of general rules of evidence (witness, commencement of written proof, etc.).
Duty to Inform
One of the most fundamental obligations of the insurer is the duty to inform, detailed in Article 1423 of the TCC. According to this provision, the insurer and its agent are obligated to inform the policyholder before the formation of the contract and during its continuance about vital issues such as the policy's coverage, exclusions, special conditions, and rules for risk and compensation payment, in a clear, understandable, and complete language. The duty to prove that this obligation has been duly fulfilled rests with the insurer. In case of a breach of the duty to inform, the policyholder has the right to terminate the contract and demand compensation for the damage resulting from this breach.
Obligation to Bear the Risk and Pay Compensation
The insurer's primary performance obligation is to pay the damage or sum that arises from the realization of the risk defined in the contract. Pursuant to TCC Article 1409, the insurer is responsible for the damage caused by the perils specified in the contract. At this point, a critical protection mechanism that works in favor of the policyholder comes into play: the burden of proving that some of the risks stipulated in the contract are excluded from coverage lies with the insurer. This rule provides a strategic advantage in post-disaster claim processes. Damage occurring after an earthquake or fire is legally presumed to be within the policy's scope. If the insurer wishes to refuse payment, it must prove with concrete and convincing evidence that the damage occurred due to a clause explicitly and exceptionally stated in the policy (e.g., the insured's intent, nuclear hazards, actions by public authorities). This regulation relieves the policyholder of a heavy burden such as "proving that the damage is not within an exclusion," thereby correcting the information and power imbalance between the parties in favor of the policyholder.
1.2. Fundamental Duties and Obligations (Burdens) of the Policyholder/Insured
The insurance contract also imposes a series of duties and obligations, termed "burdens," on the insured. Failure to fulfill these burdens can lead to the partial or complete loss of the right to compensation.
Premium Payment Obligation
The primary obligation of the insured is to pay the agreed insurance premium on time and in full. If the insured defaults on premium payment, the insurer can grant an additional period by sending a notice via a notary and, if the premium is not paid at the end of this period, can exercise the right to terminate the contract.
Notification Obligation (Notice) When the Risk Occurs
One of the most critical burdens of the insured is to notify the insurer without delay upon learning of the occurrence of the risk. This is a "burden," not an obligation; meaning, its non-fulfillment does not grant the insurer the right to sue, but it jeopardizes the insured's right to compensation.
Meaning and Importance: This notification allows the insurer to swiftly determine the cause and extent of the damage, take measures to mitigate the loss, preserve evidence, and protect any rights of subrogation it may have against third parties.
Time Limits: In liability insurance, this period is clearly set by law as ten days from learning of the event. In other property insurance, the period is generally regulated in the policy's general conditions with phrases like "without delay" or "5 business days."
Consequences of Breach: TCC Article 1446 provides for a reduction in compensation according to the gravity of the fault if the notification burden is culpably breached and this breach increases the amount of compensation to be paid. This "reduction from compensation" principle has softened the strict sanction of "complete loss of right" in the old law, offering a significant mechanism of fairness in favor of the policyholder.
At this point, there is a subtle legal link between the insurer's duty to inform and the insured's notification burden that should not be overlooked. Pursuant to TCC Article 1423, the insurer is obliged to clearly highlight the insured's rights and the provisions requiring special attention, for example, the damage notification periods, in the policy. If the insurer has neglected this duty to inform and the insured has missed the notification period for this reason, it can be argued that the insured's fault in breaching the notification burden is diminished or even eliminated. This situation may influence the "reduction from compensation" rate that the court will apply under TCC Article 1446 in favor of the policyholder or may prevent the reduction altogether. This constitutes a powerful legal argument for policyholders.
Obligations to Prevent and Mitigate Loss and to Provide Information
After the risk occurs, the insured is obliged to take reasonable measures to prevent or reduce the escalation of the damage. Furthermore, pursuant to TCC Article 1471, before the damage assessment is conducted, the insured must refrain from making any changes to the damaged location and property that would complicate or render impossible the determination of the cause of the damage or the amount of the loss. Breach of this obligation can lead to difficulties in proof and, consequently, negatively affect the amount of compensation to be received.
Chapter 2: Compulsory Earthquake Insurance (DASK) and the Claim Process
Designed as a financial shield against earthquake risk in Turkey, Compulsory Earthquake Insurance (DASK) has its own unique legal framework. This framework is shaped by the Disaster Insurance Law No. 6305 and the secondary legislation based on this law. The legal identity and operation of DASK exhibit significant differences from private insurance under the TCC.
2.1. The Legal Nature and Legal Basis of DASK
DASK is not a merchant or a private insurance company in the sense of the TCC. Pursuant to Article 3 of the Disaster Insurance Law, it is a "public legal entity" established within the Ministry of Treasury and Finance. This special status has important legal consequences:
DASK has financial and legal privileges; it is exempt from all kinds of taxes, duties, and fees. Moreover, the institution's assets cannot be seized, and it cannot be pursued through bankruptcy proceedings. This regulation is a vital guarantee introduced to protect the institution's financial sustainability and its ability to pay compensation in the event of a large-scale disaster like the 1999 earthquake. As for the applicable law, due to its public legal entity status, DASK is not directly subject to the Insurance Law and the regulations based on this law (e.g., the Regulation on Information in Insurance Contracts). Similarly, the provisions in the insurance law book of the TCC are not directly applicable to DASK. These provisions can only find application by analogy if there is a gap in DASK's own special legislation (the Disaster Insurance Law and the Compulsory Earthquake Insurance General Conditions). This means that in disputes with DASK, the basis of legal arguments must be the Law No. 6305 and the relevant general conditions, rather than the TCC.
This "hybrid" structure of DASK, i.e., being a public institution yet entering into a private law contract like an insurance policy, leads to some legal hesitations in practice. While as a rule, administrative courts have jurisdiction over the actions and transactions of a public institution (Constitution Art. 125), disputes arising from private law contracts fall within the jurisdiction of the judicial courts (Commercial Courts). In actual practice, it is accepted that disputes arising from DASK's obligation to pay compensation are heard in the Commercial Courts of First Instance and that applications can also be made to the Insurance Arbitration Commission. However, this dual structure brings with it legal debates on the extent to which principles such as "acting like a prudent merchant" (TCC Art. 18/2) or "consumer protection" are applicable to DASK.
2.2. The Scope and Limits of the DASK Policy
A DASK policy offers coverage that is specific and clearly delineated.
Scope of Coverage: The policy secures against direct material damages caused by an earthquake and by fire, explosion, tsunami, and landslide resulting from the earthquake, to the structural and complementary elements of the insured buildings, such as their foundations, main walls, common walls separating independent sections, ceilings and floors, stairs, roofs, and chimneys.
Excluded Cases: DASK's coverage is quite narrow and does not cover the following damages:
Indirect Damages: Indirect damages such as debris removal costs, loss of profit, business interruption, loss of rent, and alternative accommodation expenses are excluded from coverage.
Movable Property: Movable property such as furniture, machinery, and commercial goods inside the residence or workplace are not covered by DASK.
Bodily Injury: Bodily injuries such as death and injury resulting from an earthquake, as well as claims for non-pecuniary damages, are outside the scope of the policy.
Maximum Coverage Limit: DASK operates with a maximum coverage limit that caps its total liability per risk. This limit is updated annually by the Ministry of Treasury and Finance. For the year 2023, this upper limit was set at 640,000 TL. The compensation to be paid is calculated by multiplying the gross area of the damaged residence by the unit construction cost per square meter determined for that year, but the amount found as a result of this calculation can under no circumstances exceed the declared maximum coverage limit.
These limitations underscore that DASK alone does not provide complete protection. While DASK offers a basic guarantee, it is far from covering the full extent of the actual damage that can occur in an earthquake. Particularly, significant financial costs like damage to belongings, loss of rent, and situations where the actual market value of the building exceeds the DASK limit create a serious "protection gap" for the insured. To close this gap, it is imperative to supplement the DASK policy with a voluntary housing insurance policy that offers these additional coverages. Therefore, DASK and private housing insurance are not alternatives to each other but are inseparable and complementary components of an integrated risk management strategy.
2.3. DASK Damage Notification and Claim Procedure
The steps to be followed to receive compensation from DASK after an earthquake are as follows:
Damage Notification: Right holders who learn of the occurrence of the risk must notify DASK within a reasonable time. This notification can be made via the Alo DASK 125 call center, the e-Devlet system, or the online damage notification section on DASK's official website.
Required Information and Documents: During the notification, the insured is asked for their T.R. identity number, DASK policy number, the full address of the damaged property (for the expert to reach easily), title deed information, and the bank account details for the compensation to be deposited.
Damage Assessment: Following the notification, DASK appoints independent loss adjusters (experts) to inspect the damage on-site and prepare a report. The purpose of this assessment is not to measure the building's earthquake resistance but to determine the extent and nature of the damage caused by the current earthquake.
Calculation and Payment of Compensation:
Calculation Method: The amount of compensation is calculated based on the cost of rebuilding the building according to the market rates at the date the risk occurred; however, this amount cannot exceed the insurance sum written in the policy.
Deductible Application: In DASK payments, a deductible of 2% of the insurance sum is applied for each loss. If the damage amount is below this deductible, no payment is made by DASK.
Payment Period and Method: Once the damage assessment is complete and the amount of compensation to be paid is finalized, the payment is generally made by DASK within 1 month. Payments can be withdrawn in cash from any Vakıfbank branch with a password sent to the right holder's mobile phone and their T.R. identity number.
Chapter 3: Voluntary Property Insurance (Housing and Fire) and the Claim Process
Voluntary property insurance has the potential to offer much more comprehensive coverage by filling the protection gaps left by DASK. Being subject to the TCC regime, these insurances present a flexible structure that can be tailored to the specific needs of the policyholder.
3.1. The Complementary Role of Housing Insurance to DASK
Private housing insurance goes beyond DASK's basic building coverage to provide a much broader shield of protection for the insured. Unlike DASK, through special conditions (clauses) added to private housing policies, it is possible to cover damages to belongings, loss of rent, debris removal costs, alternative accommodation expenses, and even damages to neighboring buildings or third parties (such as fire financial liability) resulting from an earthquake. Furthermore, if the reconstruction cost or market value of a residence exceeds the maximum coverage limit set by DASK for that year (e.g., 640,000 TL), this difference can be secured as "excess insurance" with a private housing policy. This way, in the event of a total loss, the insured has the opportunity to receive compensation close to the real value of their property.
3.2. Legal Assessments Specific to Fire Insurance
Fire, as a peril that can arise from both natural causes (lightning, spread from forest fires) and human-related reasons, brings with it its own unique legal problems in the claim process.
Determination and Proof of the Cause of Fire: One of the most critical stages in compensation claims is clarifying the cause of the fire. The report prepared by the fire department on-site, which includes the probable cause, starting point, and spread pattern of the fire, constitutes important evidence in this regard. However, this report is not conclusive evidence that binds the court but is of a discretionary nature. The parties have the right to prove the contrary of the fire department's report with private expert reports or other evidence.
The Effect of the Insured's Fault on Compensation:
Intent: If the insured or persons for whose actions they are legally responsible (e.g., a cohabiting family member) intentionally, i.e., knowingly and willfully, causes the realization of the risk, the insurer is completely relieved of the obligation to pay compensation.
Negligence (Gross Negligence): TCC Article 1429 contains an important provision that protects the insured. Accordingly, unless there is a contrary provision in the contract, the insurer is obliged to compensate for damages arising from the negligence of the insured or the beneficiary. This means that the insured's simple negligence (e.g., leaving an iron plugged in) is within the scope of coverage. However, special conditions stating that "gross negligence" is excluded from coverage can be added to policies. Whether an act constitutes simple negligence or gross negligence is determined by the court according to the specific circumstances of each concrete case. The burden of proving that the damage resulted from a non-covered gross negligence always rests with the insurer.
3.3. Damage Notification and Claim Procedure in Voluntary Insurance
The claim process in these insurances is subject to the general principles in the TCC explained in Chapter 1. However, the role and legal position of the insurance expert in this process are of special importance.
Role and Impartiality of the Insurance Expert: The determination of the amount and cause of the damage is usually carried out through an insurance expert appointed by the insurer. However, Article 22 of the Insurance Law No. 5684 clearly defines the status and obligations of the expert. Paragraph 13 of this article stipulates with a mandatory provision that the insurance expert "must be impartial." If the expert has a relationship with one of the parties that could compromise their impartiality (kinship, business partnership, etc.), they cannot undertake this task. The law attaches a very severe legal consequence to the violation of this rule: expert reports prepared in violation of the impartiality principle are legally "void."
Objecting to the Expert Report: If the insured does not agree with the findings and report of the expert appointed by the insurer, they have the right to intervene in the process. According to the policy's general conditions, they can appoint their own independent expert at their own expense. If a dispute arises between the two expert reports, the matter is finally resolved by a court-appointed or Insurance Arbitration Commission-appointed expert witness.
The provision in the Insurance Law regarding the "voidness of a report contrary to impartiality" is not just a consequence for the insured but also a proactive legal weapon that can be used in process management. The insured can object to the expert's impartiality based on signs such as the expert consistently working for the same insurance company or exhibiting a clearly dismissive attitude towards the damage. This claim strengthens the argument that the report is void and therefore the insurer's compensation offer lacks a legal basis. Asserting this during the litigation or arbitration phase may compel the insurer to meet the insured on a fairer ground of settlement rather than risking the report being deemed void and a new expert being appointed by the court.
Chapter 4: Disputes Encountered in the Claim Process and Resolution Methods
Insurance claim processes are inherently contentious, where disagreements on various issues can arise between the parties. The legislation offers different legal avenues for the resolution of these disputes.
4.1. Frequently Encountered Dispute Topics
One of the most common causes of dispute is the under-calculation of the compensation amount. This can stem from a difference between the damage amount determined by the insurer's expert and the insured's actual loss, the incomplete calculation of reconstruction costs, or the application of exorbitant depreciation rates. Another point of contention is the insurer's refusal to pay, claiming that the damage falls under an exclusion clause in the policy (e.g., existing structural defects of the building, manufacturing faults, the insured's gross negligence). Furthermore, it is common for the insurer to claim that the damage was caused by a reason other than the peril covered in the policy (earthquake, fire, etc.). In such cases, the burden of proof, as a rule, lies with the insurer making this claim.
4.2. Dispute Resolution Mechanism: The Litigation Path
If the dispute cannot be resolved between the parties, the traditional path is to resort to the courts.
Competent Court: Since insurance contracts are commercial transactions, the competent court for compensation lawsuits arising from these contracts is the Commercial Court of First Instance.
Authorized Court (Venue): The law grants the insured a choice regarding venue. The lawsuit can be filed at the court of the defendant insurance company's or DASK's headquarters, or at the court of the place where the risk occurred (the place where the disaster happened).
Mandatory Mediation as a Precondition for a Lawsuit: With the regulation made by Law No. 7155, applying to a mediator before filing a lawsuit has been accepted as a precondition for commercial cases whose subject is the payment of a sum of money. If no agreement is reached in the mediation process, the final report documenting this situation must be attached to the lawsuit petition.
4.3. Alternative Dispute Resolution Mechanism: The Insurance Arbitration Commission
The Insurance Arbitration Commission, established by the Insurance Law No. 5684, offers a faster and less costly alternative to courts for resolving insurance disputes.
The most distinct advantages of the arbitration path are; the proceedings conclude much faster than in courts (on average 4-6 months), the application and proceeding costs are lower, and the disputes are decided by arbitrators who are experts in the field of insurance law. To apply to the Commission, one must first have applied in writing to the insurance institution with which the dispute exists and the request must have been fully or partially rejected, or no response must have been given to the application within 15 business days. After this prerequisite is met, an application can be made to the Commission with the application form, a petition detailing the dispute, evidence, and the receipt for the payment of the application fee. The application is first subjected to a preliminary review by a rapporteur. Unresolved files are transferred to an arbitrator selected by the Commission or to an arbitration panel of at least three members, depending on the amount of the dispute. The arbitrators generally examine the file on paper and issue a decision within a maximum of 4 months. The Commission's arbitrator decisions have the quality of a "court judgment" and can be directly subject to enforcement proceedings.
For the insured, the choice between litigation and arbitration is not just a matter of time and cost, but a strategic decision dependent on the nature of the dispute and the state of the evidence. If the dispute involves a complex legal interpretation, such as the validity of a clause in the policy, a court decision that could set a precedent and be reviewed by a higher court may be more advantageous. On the other hand, if the dispute is purely technical, such as determining the amount of damage, the Arbitration Commission, where expert arbitrators serve and expert witness processes are more efficient, can offer a much more effective solution. Therefore, there is no single answer to the question "which is better?"; the right question should be, "which resolution path is more strategic for this specific file?"
Final Decisions
Disputes up to 28,000 TL
The arbitrator's decision is final, it cannot be appealed.
Right of Objection
Disputes of 28,000 TL and above
An objection can be made to the Objection Arbitration Panel within 10 days of notification.
Mandatory Panel Formation
Disputes of 96,000 TL and above
The dispute must be heard by an arbitration panel of at least 3 members, not a single arbitrator.
Right of Appeal (to Yargıtay)
Disputes of 300,000 TL and above
The path to appeal (Yargıtay/Court of Cassation) is open after the notification of the Objection Arbitration Panel's decision.
4.4. Statutes of Limitation and Preclusive Periods
To avoid the loss of rights in compensation claims, it is vitally important to carefully track the statutes of limitation.
General Rule (TCC Art. 1420): All claims arising from an insurance contract are subject to a two-year statute of limitation from the date the claim becomes due (when the compensation becomes claimable). The start of the two-year period begins after the notification of the risk's occurrence to the insurer and the passage of a reasonable time required for the insurer to conduct its investigation and determine its debt. However, this period, in any case, ends ten years after the date of the risk's occurrence.
Statute of Limitation for DASK: According to the Compulsory Earthquake Insurance General Conditions, all claims arising from the insurance contract are subject to a two-year statute of limitation from the date the risk occurred.
Liability Insurance (TCC Art. 1482): In this type of insurance, compensation claims against the insurer are subject to a longer statute of limitation of ten years from the date of the occurrence of the insured event (the risk). This long period also applies to the right of injured third parties to sue the insurer directly.
Situations that Interrupt and Suspend the Statute of Limitation:
Interruption: Filing a lawsuit, initiating enforcement proceedings, or applying to the Insurance Arbitration Commission interrupts the statute of limitation, and the period resets and starts to run anew.
Suspension: Applying for mandatory mediation suspends the running of the statute of limitation until the date the final report of the mediation process is issued. The period continues to run from where it left off. Making a written application to the insurance company is also accepted as a reason that suspends the statute of limitation, especially in compulsory insurances.
Conclusion and Evaluation
The insurance claim process following natural disasters is a multi-stage, technical, and legal journey that begins with damage notification, continues with damage assessment, and culminates in payment or dispute resolution. The healthy functioning of this process depends on both the insurer and the insured being aware of their rights and obligations arising from the law and the contract.
The most fundamental conclusion revealed by this analysis is that disaster insurance in Turkey exhibits a dual structure. On one hand, there is DASK, regulated by Law No. 6305 and subject to its own unique public law regime; on the other hand, there are private insurances operating within the framework of the Turkish Commercial Code No. 6102. While DASK provides basic building security, significant risks such as damage to belongings, loss of rent, and the portion of the building's value exceeding the DASK limit can only be covered by voluntary housing insurance. These two types of insurance are not competitors but are complementary elements.
The following practical strategies can be recommended for policyholders to avoid losing their rights in this process:
Conscious Policy Selection: Policies and general conditions should be carefully examined, and full and understandable information about the scope of coverage and exclusions should be requested from the insurer.
Timely and Proper Notification: After a disaster, the damage should be reported to the insurer in compliance with the periods specified in the law and the policy, preferably through written or recordable means (e-mail, registered letter with return receipt, online application).
Active Process Monitoring: One should not remain passive during the damage assessment process; the expert's assessment should be accompanied, one's own evidence (photos, videos, invoices, etc.) should be presented, and a copy of the prepared report should be requested. The right to object to the expert's report and to appoint one's own expert should always be kept in mind.
Attention to the Statute of Limitation: The two- and ten-year statutes of limitation prescribed by law for compensation claims should be meticulously followed, and necessary legal steps should be taken before the preclusive periods expire.
Professional Support: In case of a dispute, the most strategic decision should be made by evaluating the advantages and disadvantages of litigation and arbitration paths together with a legal professional specialized in insurance law.
Finally, considering the extreme weather events triggered by climate change and our country's earthquake reality, it is a necessity to continuously update and strengthen the capacity of the current insurance legislation and institutions like DASK. In particular, reforms such as clarifying the legal regime uncertainties of DASK and raising the compensation limits to levels closer to the real values of buildings will play a key role in healing the economic and social wounds of future disasters.
