Insurance Law

Scope

This area covers disputes between insurance companies and insured persons, policyholders, beneficiaries and injured parties. Claims arising from home, business premises, transport and motor vehicle insurance, life and health insurance, and compulsory insurance such as compulsory traffic insurance are addressed within this framework. Agreeing that a loss has occurred is not the same as agreeing on what the policy covers or how much will be paid; these questions are assessed separately.

Common issues

• Underpayment or non-payment of the loss amount
• Interpretation of the scope of cover and the exclusions in the policy
• Disputes concerning notification of the occurrence of the insured risk and the duty to notify
• Compensation claims under compulsory traffic insurance
• Rejection of payment claims under life and health insurance
• Claims concerning loss of value and repair costs
• Recourse claims of the insurance company

How does mediation work in this type of dispute?

Insurance disputes are of a “mixed” type; whether mediation is a precondition for bringing an action or voluntary depends on the capacity of the parties and the nature of the claim. Not every insurance claim is subject to the same procedure.

• If the relationship between the parties qualifies as a commercial case and the subject of the claim is the payment of a sum of money, applying to a mediator is a precondition for bringing an action under Art. 5/A of the Turkish Commercial Code No. 6102.
• In disputes where the insured qualifies as a consumer, Art. 73/A of Law No. 6502 and the consumer legislation are assessed together.
• The Insurance Arbitration Commission established under the Insurance Law No. 5684 is a route of application separate from mediation; which route is to be followed and its preconditions are determined according to the specific case.
• In cases falling outside the scope of mandatory pre-litigation mediation, mediation is voluntary and is conducted within the framework of Law No. 6325 on Mediation in Civil Disputes.

The mediator is an independent and impartial third party; the mediator is neither a loss adjuster recalculating the loss nor an insurance arbitrator rendering a decision. The mediator helps the parties disclose to each other the information on which they rely, compare differing calculations and identify the points that may be negotiated. The sessions are confidential. If an agreement is reached, the settlement agreement drawn up becomes a document having the force of a court judgment under the conditions laid down in Law No. 6325.

Matters that may be discussed in the sessions

• Policy and scope of cover: whether the claimed head of loss falls within the cover
• Loss and loss of value: the differing calculations on which the parties rely
• Previous payments and how they are to be taken into account
• Amount and timing of payment; the possibility of agreement on only part of the claim

At the start of the sessions, the policy, the incident and the claim under discussion are identified; which part of the claim is objected to is explained item by item.

Process and points to note

The policy and general conditions, loss notification correspondence, loss adjuster’s or loss assessment reports, repair documents, payment records and the insurance company’s rejection letter are the basic documents for the assessment. In compulsory insurance, there may be preconditions such as a written application to the insurance company. Since routes of application and time limits vary according to the type of insurance, the time limits should be identified from the outset to avoid any loss of rights.

In mandatory pre-litigation mediation, the application is made to the mediation office at the place where the competent court is located; the mediator is appointed by the office. The process is concluded within three weeks; in compelling circumstances, the period may be extended by a maximum of one week (Art. 18/A of Law No. 6325). If no agreement is reached, final minutes are drawn up and attached to the statement of claim.

If an agreement is reached, the amount and terms accepted are clearly recorded; it is not left unclear which claim the agreement covers. The mediator has no decision-making power, and the terms on which the parties agree are what count; failure to reach an agreement is also one of the possible outcomes of the process.

Our office’s approach

The office reviews the policy and the loss file and determines the basis of the claim and the route of application to be followed. The work comprises preparation for the mediation process, the legal review of the settlement text and, where necessary, representation at the litigation or Insurance Arbitration Commission stage. Where the role of mediator has been assumed in a dispute, the office does not act as counsel for any of the parties to that dispute.