17th Civil Chamber 2016/11461 E. , 2019/7615 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 judgment regarding the partial acceptance of the lawsuit for the reasons written in the decision was appealed by the defendant’s attorney within the time limit, the file was examined and the necessary was considered:
-DECISION-
The plaintiff’s attorney stated that the workplace belonging to the plaintiff and insured by the defendant with the Fire Insurance Policy was damaged in the earthquake that occurred in … Province, that the defendant paid the commodity damage, that the defendant is responsible for the damage caused by the earthquake in the workplace building, and demanded the collection of 20.700,00 TL from the defendant together with the commercial interest to be processed from the date of the earthquake, without prejudice to their rights regarding the excess.
The defendant’s attorney defended the dismissal of the case by stating that they are not responsible for the damage in the absence of a TCIP policy, that they are responsible for the damages exceeding the compulsory earthquake insurance amount limited to the coverage in the policy, that the earthquake coverage in the policy is voluntary and that the plaintiff’s damage is within the limits of TCIP, that the companies will not be held hostile, that the joint insurance and exemption provision for the earthquake risk should also be taken into account in the damage determination.
The court, according to the claim, defense, the trial and the evidence gathered, decided to partially accept the lawsuit and to collect the compensation of 13.811,60 TL from the defendant together with the commercial interest to be accrued from 17.12.2011; the judgment was appealed by the defendant’s attorney.
The lawsuit is related to the claim for compensation under the Fire Insurance Policy, which also includes earthquake coverage.
The plaintiff filed a lawsuit requesting compensation from the defendant for the damage caused by the earthquake to the independent section 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 decided to partially accept the claim on the grounds that the defendant insurer, who did not provide the necessary information that the voluntary earthquake coverage provided in the policy would be valid provided that there was compulsory earthquake insurance for the insured workplace, was responsible for the damage.
The fact that the plaintiff’s workplace does not have a TCIP policy is fixed with the reply letter of TCIP dated 18.12.2012, as it is accepted by both the parties and the court. With the Fire Insurance Policy issued by the defendant with a maturity of 29.04.2011-29.04.2012, the insured workplace was insured with a building value of 26,550.00 TL and earthquake coverage was also provided in the policy; however, the policy did not include a separate statement that the insurer would be liable for damages exceeding the TCIP limit in terms of earthquake coverage; it was only regulated that 20% co-insurance and 2% exemption would be applied in terms of earthquake coverage.
Article 2 titled “scope” of the Decree Law No. 587 on Compulsory Earthquake Insurance, which was in force as of 29.04.2011, the date on which the Fire Insurance Policy including earthquake coverage was issued by the defendant for the plaintiff’s workplace, and as of the date of the earthquake. Article 2 of the Decree Law No. 587 on Compulsory Earthquake Insurance titled “Scope” stipulates that “independent sections within the scope of the Condominium Law No. 634, buildings built as dwellings on immovable properties registered to the title deed and subject to private ownership, independent sections within these buildings and used for commercial, office and similar purposes, and dwellings built by the State due to natural disasters or built with a loan granted by the State are subject to compulsory earthquake insurance”; and Article 9 of the said Decree Law stipulates that Article 9 of the said Decree Law stipulates that “compulsory earthquake insurance shall be taken out by the owners or usufructuaries, if any, for the independent sections and buildings within the scope of this Decree Law”.
Decree Law No. 587 clearly defines those who are obliged to have compulsory earthquake insurance and the buildings for which this insurance is compulsory. The plaintiff’s workplace is also among the buildings that are obliged to have compulsory earthquake insurance under the Decree Law. Considering that the only authorized institution to issue Compulsory Earthquake Insurance is TCIP; the defendant insurer does not have the right and authority to issue compulsory earthquake insurance on its own behalf and account; the policy issued by the defendant is a Fire Insurance Policy and the policy provides coverage for many risks other than earthquakes, the court’s acceptance that the earthquake coverage in the defendant’s policy is voluntary is appropriate.
However, since the plaintiff, who is obliged to have compulsory earthquake insurance within the scope of the Decree Law No. 587, was not informed that the defendant would be liable for the damage exceeding the TCIP limit, the defendant could not gain the right to claim the earthquake coverage in the policy issued by the defendant; the decision without considering the issues that the defendant can only be held liable for the damage exceeding the compulsory earthquake insurance coverage limit of the plaintiff who does not have the compulsory earthquake insurance that he is obliged to have as per the legislation and without conducting the necessary researches is in the nature of incomplete examination.
In the face of the legal and material facts explained, the court; taking into account that the starting point of the defendant’s liability is the earthquake damage exceeding the compulsory earthquake insurance coverage limit, the compulsory earthquake insurance valid on 23.10.2011, the earthquake date for the plaintiff’s workplace. 2011, the date of the earthquake; then, obtaining a report from another expert civil engineer expert on how much the reconstruction cost of the insured workplace building will be according to the free market prices on the date of the earthquake; In the event that the damage amount to be determined is below the TCIP coverage limit, the defendant will not be held hostile and in the event of damage exceeding the TCIP limit, the defendant may be held liable for the amount to be determined within the co-insurance and exemption provisions in the policy for the part of the damage exceeding the said limit.
CONCLUSION: For the reasons explained above, it was unanimously decided on 17/06/2019 to accept the appeal objections of the defendant’s attorney and to VACATE the judgment, and to return the prepaid fee to the appellant defendant upon request.
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