The Process Followed by the Insurer relating to Resolution of the Conflicted Claims. Turkish Commercial Code’s Viewpoint Dr.Ecehan Yesilova Aras Yasar University / Izmir. The aims of the Exposition-1. The steps of the insurer; its behaving
Turkish Commercial Code’s Viewpoint
Dr.Ecehan Yesilova Aras
Yasar University / Izmir
The steps of the insurer; its behaving
During the process of fulfilling the victim’s claim (compensation)
According to Turkish New insurance law
(the text updated by 2001)
Liability Insurance: VVG § 149 – 158c
no reason to edge out the academic and judgemental collection of past years, continuing over this (german commercial law) inheritance
Germany put it in force after Turkish legislative preparations has ended. When 2008-VVG text in force, the draft Turk.Com.Code queue at Parliament, no time to adopt, missed the train.
Under a liability insurance contract, the insurer shall pay indemnityto the victim[VVG: insured] up to the amount stipulated in the contract, for the liabilty of the insured due to an event defined under the contract, unless otherwise agreed, occured during the time period of the contract, even if the damage arises after the termination of the contract.
Underlined sentences belong to VVG § 149
a) Insurer (via direct action): The whole judgement is executed on name and behalf of insurer, the insurer takes all procedural steps by himself
* direct action can also be directed outside the court, then insurer decides alone either settlement or jurisdiction within court
*As a secret hero behind the insured? or
*At first line, in front of the insured, by taking all control of the procedure ?
Art. 1476 (Assistance of the Insurer)
b) protect the insured against unjust claim
Question: May insurer reduce the indemnity due to late notification even against the 3rd party victim? Not regulated
If unjust, till definite court decision, not due.
Then, until decision, interest will charge.
Till the end of appeal judgement, more than 2 years along interest runs, if the claim was at the begining within the policy limit,
But by addition of those years’ interest, exceeds policy limit,
how much will pay the insurer to the victim?
-insurer’s wrong decision –to be judged- rather than settlement
-insurer has to bear its result
-even if the total sum in decision exceeds the policy limit,
-providing that at the begining the policy can cover the whole claim
Upon notice of the victim’s claim, of the Conflicted Claims within 5 days: The insurer may choose
(a) to take the control of legal process against victim. Standing at first line within the court
* responsibility of all legal transactions and costs belong to insurer.
(b) Waits outside the play, Pays the compensation held by High Court.
*Costs belong to insured.
Question: legislative reasoning of this article says:
“pays without need of any other judgement”
What if the insurer assumes that the related risk is excepted from the policy, can not he argue this now?
Within 5 days,unless and untill the choice of insurer, the costs of essential transactions (objection, evidence determination) belong to insured.
When a demand is claimed against insured,
Reasonable expenses regarding this claim, covered by insurer.
For payment beyond the policy limit, agreement under policy is necessary.
If insured requests, insurer shall advance money.
Under which conditions wishes to agree, decides itself, protects its own interest
insurer must have rightful causes to refuse
Upon notice of claim or direct demand of victim,
Collection of documents relating to risk,
when the investigation of insurer terminates, however under any circumstances,after 45 days, the insurer has to honour its due payment.
Upon termination of 3 months, %50 of damage : shall be advance payment.
Calculation of the total amount of damage?
conformity of parties, where no conformity;
report of expert appointed by court
De lege feranda: %50 of policy limit