I. INTRODUCTION
As is well known, insurance is a financial protection mechanism established within the framework of a contract to reduce or compensate for material losses arising from a specific risk or uncertainty. For certain types of insurance contracts, the act causing the occurrence of the covered risk may also constitute a criminal offense under criminal law. In such cases, the question of which statute of limitations periods apply to insurance-law related compensation disputes arises. This article attempts to address this issue.
The analysis conducted within the scope of this article is limited to disputes involving the subrogation claims based on the right of subrogation by the insurer, and disputes involving claims directed against the liability insurer. As will be explained below, in other cases arising from insurance law, the issue of extended criminal statute of limitations will not be addressed.
II. EXTENDED CRIMINAL STATUTE OF LIMITATIONS IN INSURANCE LAW
A. Connection between Extended Criminal Statute of Limitations and Insurance Law
Insurance is a contract in which, in exchange for a specific premium payment, a person is granted the right to demand compensation for the economic needs that arise if the insured risk materializes.
Insurance has been classified into various categories in legal doctrine. Based on the criterion of need satisfaction, it is divided into property insurance and liability insurance[1]. Property insurance aims to compensate for material losses up to the insured amount if a person’s property, ownership, or activities suffer damage due to an event covered under the insurance policy. Property insurance is further divided into active insurance and passive insurance. Active insurance relates to a person’s interest in their own property, while passive insurance, also known as liability insurance, seeks to prevent a reduction in the insured’s assets due to damages caused to third parties while also aiming to compensate the third parties who suffer harm from the insured’s actions.[2]Therefore, liability insurance is a sui generis insurance type that balances the interests of both the insured and third parties harmed by the insured’s actions.[3]
As per Article 1472 of the Turkish Commercial Code (TCC):[4]
“[5]The insurer, unless otherwise stated in the contract, shall compensate the injured party up to the limit specified in the insurance contract, if the insured’s liability arises due to an event that occurred during the insurance period, even if the damage occurs later.”
In property insurance, after the risk occurs, the person making the claim will always be the insured, as there is a relationship of interest between the insured and the property. In liability insurance, the person making the claim will be the third party who suffered damage due to the insured’s actions.
In property insurance, when a risk covered by the policy materializes and the insured interest suffers damage, the insurer will be obliged to compensate this loss, limited to the insurance amount specified under the policy. After compensation, the insurer may invoke the subrogation right under Article 1472 of the TCC and seek reimbursement from the liable party. In this context, the question arises: “If the act causing the damage is considered a criminal offense under criminal law, will the insurer’s right of claim be subject to the extended criminal statute of limitations?”
In liability insurance, when the insured causes damage to another person or another person’s property due to their fault, and if this action falls within the scope of the policy coverage, the insurer will make a payment to the damaged party, limited to the insurance coverage limits and proportional to the insured’s fault. In this case, the question that arises is: “If the action of the insured that caused the damage constitutes a criminal offense under criminal law, will the right of the third party who suffered the damage or the insured who made the payment to the damaged party be subject to the extended statute of limitations when claiming from the insurer?”
B. Statute of Limitations in Insurance Law
In the sixth book of the Turkish Commercial Code No. 6102, Article 1420 establishes the general statute of limitations period, specifying that all claims arising from insurance contracts are subject to a two-year statute of limitations, and in any case, a six-year statute of limitations. The statute of limitations for liability insurance claims is separately regulated in Article 1482, which stipulates that claims directed at the insurer will be subject to a statute of limitations of ten years from the occurrence of the insured event. The statute of limitations for liability insurance is specifically regulated in Article 1482, which states that compensation claims directed against the insurer will be subject to a statute of limitations of ten years, starting from the occurrence of the insured event.
C. Extended Criminal Statute of Limitations in Property Insurance
The issue of the extended criminal statute of limitations in property insurance will arise only in the context of recourse actions brought by the insurer against the party responsible for the damage. As noted above, the insurer’s primary obligation in property insurance is to compensate for the material loss arising from the occurrence of a risk covered by the policy, up to the policy limit. In cases of tort, the person who suffers the damage becomes the insured. In such cases, the insured can only claim compensation from the insurer within the scope of the insurance contract. Therefore, the statute of limitations for such claims will be determined in accordance with Article 1420 of the TCC, which governs claims arising from insurance contracts.
Once the insurer pays the insurance indemnity, it subrogates the rights of the insured and may pursue the party responsible for the damage if there is a legal right to do so.5 The statute of limitations for the insurer’s subrogated claim will be subject to the statute of limitations that applies to the original claim the insured could have brought against the liable party.[6]
There are differing views on whether the right to benefit from the extended criminal statute of limitations, in cases where the act causing the damage is also considered a criminal offense under criminal law, would transfer to the insurer as well, in addition to the insured’s right to claim against the third party responsible for the damage.
One view holds that there is no valid reason why the insurer should be denied the benefit of the extended criminal statute of limitations. It suggests that the insurer, as the subrogee of the insured, should be entitled to benefit from the extended statute of limitations, since it takes the place of the insured by law.[7]
According to another view, this issue should be addressed based on the purpose of the provision in question. Specifically, it is argued that while the injured party can intervene in the criminal case and file a compensation claim as long as the criminal case is ongoing, it would be unjust for them to face a statute of limitations defense in civil courts. According to this reasoning, such a provision should not apply to the insurer, as the insurer, as subrogated to the insured, does not hold the status of the injured party.[8]
As noted above, the recourse action based on subrogation is governed by the principles of subrogation and will have the same characteristics as the claim the insured would have brought against the responsible party. For example, if the insured suffers damage in a consumer transaction, after compensating the insured, the insurer can file a recourse action under TCC Article 1472 in the competent consumer court. Similarly, the statute of limitations for the recourse action will be the same as the statute of limitations for the claim the insured could have brought.
Considering such matters, in our opinion, if the insured can benefit from the extended criminal statute of limitations, the insurer should also be able to do so. Indeed, the Civil Chamber of the Court of Appeals, in a case where the insurer sought recourse from the liable party for the vehicle damage paid under the comprehensive insurance policy, ruled that:[9]
“The subject matter of the case is related to the recourse for the vehicle damage payment made under the comprehensive insurance policy to the third-party insured, based on Article 1301 of the Turkish Commercial Code (TCC), due to the risk arising from a fatal traffic accident… the damage to the insured vehicle and the fatal accident are inseparable, and the third-party insured is subject to a statute of limitations period that the plaintiff Insurance Company should also benefit from; a dual distinction cannot be made in this case, as the essence of Article 109 of the Traffic Law No. 2918 is this. To make such a distinction, an amendment in the law would be necessary. It is not mandatory to open a criminal case to benefit from this provision; what matters is the existence of an action involving criminal law. In the case at hand, there are not three separate individuals, and in the single essential action of the case, applying different limitation periods to the parties would lead to unfair and inconsistent results. Therefore, the event is considered as a single incident within the scope of tort law, and no separate statute of limitations should apply for the material damage.”
As can be seen, the General Assembly made a sound decision by stating that applying different statute of limitations to the parties in a case with a single essence would lead to unjust results.
D. Extended Criminal Statute of Limitations in Liability Insurance
As mentioned above, liability insurance is a type of insurance made to cover damages the insured may cause to third parties. Under Article 1473 of the Turkish Commercial Code (TCC), the insurer is obliged to compensate the injured party up to the amount specified in the insurance contract, due to the insured’s liability. In other words, for liability insurance, the person entitled to compensation is the third party who suffers damage as a result of the insured’s actions. The insured’s liability, which causes the damage, may arise from contractual or statutory responsibilities, but can also result from an extra-contractual liability, such as tort. This article will focus on the tort-based debt relationship, which is outside the scope of the contract.
While the insurer’s responsibility originates from the insurance contract with the insured, its responsibility toward the injured party is directly derived from the law. [10]The injured third party may claim compensation from the insurer under Article 1478 of the TCC, based on the tortious act of the insured. Therefore, in cases where the damage results from the insured’s tort, if the injured third party demands compensation from the insurer, this claim will not be based on the insurance contract but will stem from the tort.
Thus, it is necessary to examine the provisions related to torts in the Turkish Code of Obligations (TCO), as the general law.
Tort, Tort-based Compensation, and Statute of Limitations in Turkish Law
In doctrine, tort is defined as an act that causes damage to another person’s property or personal rights in a manner that is contrary to law. The person who suffers damage as a result of a tort is entitled to demand compensation from the person who caused the damage, based on non-contractual liability. Article 49 of the Turkish Code of Obligations (TCO) stipulates that “A person who causes damage to another by a wrongful and unlawful act is obligated to repair the damage. Even if there is no legal provision prohibiting the damaging act, a person who intentionally causes damage to another by an immoral act is also obligated to repair the damage.”
As mentioned above, the injured person has the right to claim compensation. However, this right is subject to a time limit. According to Article 72 of the TCO, “The right to claim compensation will be subject to a statute of limitations of two years from the date the injured person learns of the damage and the person liable for the compensation, and in any case, ten years from the date the act was committed.” As seen, the statute of limitations is generally set at two and ten years.
Further, the regulation specifies that “If the compensation arises from an act that requires punishment under criminal law and the criminal law prescribes a longer statute of limitations for such an act, this statute of limitations will apply.” In doctrine, it is argued that the purpose of this regulation is to reconcile the tort statute of limitations with the criminal law statute of limitations by ensuring compensation for damages arising from criminal acts.[11]
If the act that qualifies as a tort is also a criminal act under the Turkish Penal Code (TCK), the act gains a criminal nature. For compensation claims arising from the damage caused by such criminal acts, if the statute of limitations for the criminal act is longer than that of the TCO, the dispute will be subject to the extended criminal statute of limitations. Since the statute of limitations for criminal acts under the TCK is longer than that under the TCO, this is referred to as the “extended criminal statute of limitations.”
The Impact of Statute of Limitations Provisions in the TCO on Liability Insurance
As mentioned above, in liability insurance, the key issue is the act that creates the debtor-creditor relationship between the insured and the injured party, and thus, the claims of the injured party against the insurer will be subject to the extended criminal statute of limitations. This is because doctrine states that those who can be held responsible for the act, as if they were the perpetrator, will also be subject to the criminal statute of limitations. In other words, both the person directly legally responsible for the act and those financially responsible for the act will be subject to the extended criminal statute of limitations.
There are also opposing views in doctrine. Summarizing the view of those who disagree with the approach mentioned above, in a dispute where the majority’s opinion was not shared by the member of the 11th Civil Chamber of the Court of Cassation, he explained his dissenting opinion:
“Time limitations for claims arising from insurance law are generally regulated under Article 1420 of the Turkish Commercial Code (TCC), and specifically for liability contracts under Article 1482 of the TCC. According to the general provision of Article 1420, unless otherwise stated in other laws, all claims arising from an insurance contract are subject to a statute of limitations of two years from the date the debt becomes due. Regarding claims for insurance compensation and the insurance sum, these claims are subject to a statute of limitations of six years from the date the risk occurred, as stated in Article 1482. In liability insurance, as specifically regulated by Article 1482, claims for compensation directed to the insurer will be subject to a statute of limitations of ten years from the occurrence of the insured event. Therefore, the upper limit for statute of limitations in liability insurance claims is ten years. Since no contrary regulation exists, and no reference is made to the relevant provisions of the TCO, the statute of limitations for liability insurance claims, based on TCC Article 1482, applies as ten years. According to the decision of the Court of Cassation dated 04.05.2017, Case No. 2016/14304-2644, it was deemed correct to dismiss the case on the grounds of statute of limitations, based on the regulation in the TCC, which states that the statute of limitations for liability insurance is ten years from the occurrence of the insured event, according to Article 1482 of the TCC.”[12]
In our opinion, the provisions regarding the statute of limitations in the Turkish Code of Obligations (TCO) should apply to the internal relationship between the insured and the injured party. Furthermore, considering that the insurer may be held liable for the actions of the insured, which caused the damage, as if the insurer’s own actions caused the harm, it can be concluded that the provisions on the extended criminal statute of limitations in the TCO may also apply directly against the liability insurer. Specifically, when the damage arises from the insured’s wrongful act, the act constitutes a crime, and the relevant criminal law provides for a longer statute of limitations, this provision can be applied to the liability insurer as well.
Moreover, since the primary obligation of the liability insurer is to cover the insured’s liability, it would be contrary to the basic principles of liability insurance if the statute of limitations for claims against the insurer were longer than that for claims against the insured (although this may vary depending on the specific case). Such a situation would lead to an insurance gap due to legal regulations. For example, in the case of a fatal traffic accident under Article 72 of the TCO, if the claim is made 13 years after the date of the tort and the extended criminal statute of limitations of 15 years has not expired, the trial will continue. However, if the same claim is filed against the insurer and it is argued that the extended criminal statute of limitations does not apply to the insurer, this would result in a situation where the insured suffers the loss, which is covered by the insurance, but the insurer is not liable.
On the other hand, while there are also opposing views and judicial decisions, it can be argued that the right to claim for the insured who made the payment to the injured party should also be subject to the extended criminal statute of limitations. In a case where the insured employer was the plaintiff, and the employer sought to recover payments made to the family of a deceased worker and the Social Security Institution (SGK), the Supreme Court’s 11th Civil Chamber (E. 2024/471, K. 2024/5225, dated 26.06.2024) stated:
“Therefore, the basis of the insured’s liability is related to a tort, and according to Article 72 of the Turkish Code of Obligations No. 6098, the compensation claim will be subject to a statute of limitations of two years from the date the injured party learns of the damage and the liable party, and in any case, ten years from the date of the tort. However, if the compensation arises from an act that constitutes a criminal offense under criminal law and has a longer statute of limitations, that statute of limitations will apply. In this case, the act of involuntary manslaughter falls within the scope of a ‘criminal act,’ and the criminal statute of limitations for the offense is 15 years, as stipulated by Article 66(1)(d) of the Turkish Penal Code No. 5237. Since the lawsuit was filed within 15 years of the incident, and the longer statute of limitations prescribed by criminal law also applies to the insurer as a subrogated party, it is clear that the statute of limitations has not yet expired. Therefore, the case should have been evaluated on its merits, and the decision to dismiss the case on procedural grounds with the written reasoning was incorrect and required reversal.”
This decision emphasizes that the aim is to prevent the creation of an “insurance gap” in liability insurance. Otherwise, a claim that has not yet been time-barred for the insured could become time-barred for the liability insurer.
Extended Criminal Statute of Limitations under the Highway Traffic Law (HTL)
Although, in line with the views presented above, it is essentially possible for extended criminal statute of limitations to apply in all types of liability insurance, both for the injured party and for the insured who directs their claim to the insurer after making a payment to the injured party, the legislator in the Turkish Commercial Code (TCC) has made a special provision regarding the extended criminal statute of limitations:
“Claims for compensation arising from material damages due to motor vehicle accidents are subject to a statute of limitations of two years from the date the injured party learns of the damage and the person liable for compensation, and in any case, ten years from the date of the accident. If the claim arises from an act that requires a criminal penalty and the criminal law prescribes a longer statute of limitations, this statute will also apply to the claim for material compensation. If the statute of limitations is interrupted for the liable party, it will also be interrupted for the insurer. The interruption of the statute of limitations for the insurer is deemed to be an interruption for the liable party as well. In cases of motor vehicle accidents, the recourse rights between the liable parties are subject to a statute of limitations of two years, starting from the date they fully fulfill their obligations and learn about the person to whom the recourse is to be made. In other respects, general provisions apply.”
As understood from the first paragraph of the regulation, the statute of limitations is set at two and ten years, based on the TCC provisions, and in the second paragraph, it is stated that if the act that caused the damage is a criminal act, the extended criminal statute of limitations will apply, provided that the act falls under the definition of a criminal offense in the criminal law. No requirement for an investigation or prosecution of the criminal act is imposed for the application of the extended criminal statute of limitations.
At this point, it is important to briefly explain the Compulsory Automobile Liability Insurance under the Highway Traffic Law to understand why the lawmaker chose to provide such regulation.
Compulsory Automobile Liability Insurance
Compulsory Automobile Liability Insurance is one of the types of liability insurance. Its source is the Highway Traffic Law No. 6047. The Compulsory Automobile Liability Insurance ensures the financial and legal liability of the motor vehicle operator for bodily injury and property damage caused to third parties.[13] The relevant insurance contract is concluded with a mutual expression of intent between the policyholder and the insurer, thus acquiring a mandatory private insurance status. The purpose of this insurance is to ensure that the damages resulting from traffic accidents are compensated easily, and to provide economic protection to the vehicle operator against the risk of accidents. However, nowadays, the main aim of this insurance has become to protect the third parties who suffer damages.[14]
In Article C.8 of the General Terms of the Liability Insurance (ZMMS), the statute of limitations provision mentioned above from the Turkish Commercial Code (TCC) has been reiterated.
The legislator, considering the social needs and the element of necessity, deemed it appropriate to specifically include the extended criminal statute of limitations within the framework of the TCC. Since the relevant insurance has a compulsory and social aspect, it was desired that the extended criminal statute of limitations could also be asserted against the insurer, in a clear and indisputable manner, by the legislator.
As a result of this provision, in cases where the act falls within the definition of a crime, it is undisputed that the extended criminal statute of limitations will be taken into account in compensation claims filed against the liability insurer.
III. CONCLUSION
The issue of extended criminal statute of limitations is a significant factor in determining which statute of limitations periods will apply in tort-based insurance compensation disputes. In this context, if the tort constitutes a criminal offense and criminal laws provide for a longer statute of limitations, the insurer’s defense options and liabilities can be significantly affected.
Especially in liability insurance, the insurer’s obligation to compensate the damaged third parties may vary according to the clauses in the policy. However, generally, it covers the damages arising from the insured’s tortious act. In this situation, how the extended criminal statute of limitations will affect the insurer’s liability and defense strategies is an important matter.
Additionally, if the statute of limitations for claims against the insured is longer than that for claims against the insurer under Article 1478, or if the insured, after paying compensation to the injured party, files a claim with the insurer based on insurance provisions rather than the extended criminal statute of limitations, this could lead to a contradiction with the fundamental principles of liability insurance and create an insurance gap due to legal regulations.
Although there is no consensus in doctrine and case law regarding subrogation claims arising from property insurance and liability insurance claims, there is no doubt in disputes arising from the TCC that the criminal statute of limitations will apply if the conditions are met.
Taking the extended criminal statute of limitations into account in tort-based insurance claims plays a critical role in determining the insurer’s rights and obligations. Therefore, statute of limitations periods in insurance contracts and tort-based compensation lawsuits must be carefully evaluated.
Att. Ahmet Eren AYKUT
Att. Atakan KÖROĞLU
[1] YAZICIOĞLU, Emine/ŞEKER ÖĞÜZ, Zehra, Sigorta Hukuku, Filiz Kitabevi, 2021, İstanbul, s.84.
[2] ŞENOCAK, Kemal, Türk Ticaret Kanunu’nun Mal Sigortasına İlişkin Hükümlerinin Sorumluluk Sigortalarına Uygulanabilirliği, Ankara Üniversitesi Hukuk Fakültesi Dergisi, 2009, Cilt: 58 Sayı: 1, s.191.
[3] ULAŞ, Işıl, Uygulamalı Zarar Sigortaları Hukuku, Genel Hükümler Mal ve Sorumluluk Sigortaları, Ankara 2012, 8. Bası, s. 764.
[4] KARASU, Rauf, 6102 Sayılı Türk Ticaret Kanunu’nun Sorumluluk Sigortalarına İlişkin Hükümlerinin Değerlendirilmesi, İsmet İnönü Üniversitesi, 2015, Cilt:6, Sayı:4 s.685, naklen.
5 GÖRGÜLÜ, Fatma, Sigortalarında Sigortacının Kanuni Halefiyeti, Marmara Üniversitesi Sosyal Bilimler Enstitüsü, Özel Hukuk Anabilim Dalı, Özel Hukuk Bilim Dalı, Zarar, Doktora Tezi, İstanbul, 2022, s.214
[6] GÖRGÜLÜ, Fatma, a.g.e., s.216
[7] GÖRGÜLÜ, Fatma, a.g.e., s.242
[8] GÖRGÜLÜ, Fatma, a.g.e., s.242
[9] Yargıtay Hukuk Genel Kurulu, 2011/569 E., 2011/710 K., 30.11.2011 T.
[10] AKKANAT ÖZTÜRK, Elif Beyza, Sorumluluk Sigortalarında Zarar Görenin Doğrudan Dava Hakkı, Türkiye Adalet Akademisi Dergisi, No:11, Sayı:42, 2020, s.478.
[11] ALTIN, Hayrunnisa, Haksız Fillerde Ceza Kanunlarındaki Zamanaşımının Uygulanması, AÜHFD, Y. 2020, s.2
[12] Yargıtay 11. HD., 2022/3172 E., 2023/5584 K., 4.10.2023 T.
[13] ASLAN DÜZGÜN, Ülgen, Zorunlu Mali Sorumluluk (Trafik) Sigortası Genel Şartları ile Getirilen Yenilikler ve Değişiklikler, Uyuşmazlık Mahkemesi Dergisi, 2019, Cilt:7, Sayı:14, s.156.
[14] KAYIHAN, Şaban, Zorunlu Mali Mesuliyet Sigortasında (ZMMS = Trafik Sigortası) Sigorta Ettirenin Kendi Tam Kusuru ile Vefatı Halinde Mirasçıların Üçüncü Kişi Sıfatıyla Müteveffanın Sigortacısına Başvurmaları Durumuna İlişkin Hukuki Düşünceler, Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi, Cilt: 22 Sayı: 1, 2017, 241-250, s.254.