17th Civil Chamber 2018/1547 E. , 2018/12611 K.
“Case Law Text”
COURT :Civil Court of First Instance
At the end of the trial held on the compensation lawsuit between the parties, the judgement regarding the partial acceptance of the lawsuit for the reasons written in the decision was appealed by the plaintiff’s attorney within the time limit, and the file was examined and considered accordingly:
-K A R A R-
The plaintiff’s attorney stated that the plaintiff’s workplace was insured by the defendant with the “Commercial Risk Insurance Policy”, the workplace was damaged in the earthquake that occurred on 23.10.2011 and was determined as a moderately damaged structure, the retrofitting cost of the workplace was determined as 177.790,18 TL, upon the application made to the defendant, the damage cost of 535,00 TL was calculated and paid by considering the TCIP coverage limits and the earthquake exemption in the policy. Upon the application made to the defendant, the damage fee was calculated and paid, the defendant did not cover the actual damage, the plaintiff has the right to claim at least 76.670,00 TL, and requested the collection of 70.000,00 TL compensation from the defendant together with the legal interest to be accrued from the date of the earthquake, without prejudice to the rights related to the excess; with the amendment petition dated 06.03.2014, he increased his demands to 112.715,00 TL.
The defendant’s attorney defended the dismissal of the lawsuit by stating that the policy provided a coverage of 151.000,00 TL for the cost of the building and 5% earthquake exemption, that they paid the damage amount of 565,00 TL calculated in the file to the plaintiff, that the damage to the plaintiff’s workplace was within the scope of TCIP coverage and that the defendant could be held responsible for the damage exceeding this limit.
The court, according to the claim, defence, the trial conducted and the evidence gathered; partial acceptance of the lawsuit and collection of the compensation of 2.115,00 TL from the defendant with the legal interest to be accrued from the date of the lawsuit, and dismissal of the excess claim; the judgement was appealed by the plaintiff’s attorney.
1-The case is related to the claim for compensation under the workplace insurance policy, which also includes earthquake coverage.
The plaintiff filed the present lawsuit with the claim for compensation from the defendant for the damage caused by the earthquake to the independent sections numbered 3 and 4 belonging to the plaintiff and insured by the defendant; the court accepted that the policy issued by the defendant provided voluntary earthquake coverage for the plaintiff’s workplace and accepted that the defendant was responsible for the damage exceeding the Compulsory Earthquake Insurance coverage limits and decided to partially accept the claim. It is also accepted by the plaintiff that the plaintiff’s workplace does not have a TCIP policy. With the policy issued by the defendant with a maturity of 02.02.2011-02.02.2012, the insured workplace was insured with a building value of 151.000,00 TL and earthquake coverage was also provided in the policy. In the special conditions section of the policy; “If the policy provides earthquake coverage for the building, it shall be deemed as voluntary earthquake insurance for the limits above the compulsory earthquake insurance coverage limits required to be provided in accordance with the decree law on compulsory earthquake insurance numbered 587”, it is appropriate to accept that the defendant is responsible for the earthquake damage above the TCIP coverage limit.
Since the starting point of the defendant’s liability is the earthquake damage above the compulsory earthquake insurance coverage limit, it is important to accurately determine how much the compulsory earthquake insurance coverage limit valid for the plaintiff’s workplace is as of the date of the earthquake subject to the lawsuit. The court requested information from the company operating as an agent of the non-suiting Anadolu Sigorta; with the reply dated 22.01.2014, it was reported that the TCIP coverage limit calculated according to the surface area and m2 unit prices of the plaintiff’s workplace was 110,600.00 TL; the TCIP limit in this letter was accepted by the court and the defendant’s liability was decided for the damage exceeding the amount reported. However, in this letter adopted by the court, the TCIP coverage limit calculated for 2014 was notified, and the earthquake subject to the lawsuit occurred on 23.10.2011. Since there is a difference of 3 years between the date in the reply to the letter and the date of the earthquake subject to the lawsuit, the compulsory earthquake insurance coverage limit, which should have been based lower, has been determined higher to the detriment of the plaintiff. Since this erroneous determination led to an incorrect determination of the plaintiff’s loss, it was necessary to decide to overturn the court decision.
2- The plaintiff claims that the cost of the damage caused by the earthquake event in the workplace insured by the defendant should be recovered from the defendant.
collection of the claim. When the report of the expert committee dated 14.02.2014, which the court took as basis for the judgement, is examined; no calculation was made regarding the damage to the plaintiff’s workplace; only the damage in the policy 151.000,00 TL, the 5% earthquake exemption fee and the deduction related to joint insurance were applied, and the plaintiff’s loss was determined as 112.715,00 TL by deducting 535,00 TL paid by the defendant. This report, which does not contain any calculation on the amounts required to eliminate the earthquake damage to the plaintiff’s workplace (the amount of the plaintiff’s actual loss to be compensated), is not suitable to be taken as a basis for the judgement.
In this case, the court; as of 2011, the date of the earthquake subject to the lawsuit, a re-investigation should be made to determine the compulsory earthquake insurance coverage limit valid for the plaintiff’s workplace correctly according to the date of the event; then, taking into account that determining the actual amount of damage caused by the earthquake requires special and technical knowledge, obtaining a report from another expert committee consisting of expert civil engineers and insurance lawyers, which is suitable for inspection and justified, on how much the reconstruction-repair cost required to repair the damage to the plaintiff’s workplace will be according to the free market prices on the earthquake date; defendant … According to the special condition in the policy containing the voluntary earthquake coverage issued by the company, it is necessary to determine whether the actual damage incurred is within the TCIP coverage or not, and a decision should be made according to the result to be formed (taking into account the procedural vested right of the plaintiff), but it was not deemed correct to establish a written judgement with incomplete examination.
CONCLUSION: For the reasons explained in subparagraphs (1) and (2) above, it was unanimously decided on 24/12/2018 to accept the appellate objections of the plaintiff’s attorney and to VACATE the judgement; to return the prepaid fee to the appellant upon request.
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