Insurance Subrogation and Recovery in Türkiye: Preserving the Claim Behind the Payment

The payment of an insurance indemnity changes the identity of the creditor; it does not ordinarily improve the claim against the person responsible for the loss.

That proposition lies at the centre of insurance subrogation under Turkish law and explains many of the difficulties encountered in substantial recovery matters. An insurer may have paid a perfectly valid claim under its policy and nevertheless find that recovery against the third party is restricted by a liability cap, an expired limitation period, an arbitration agreement, inadequate evidence, contributory fault or a release previously given by the insured.

For insurers handling significant commercial losses, subrogation therefore requires a different inquiry from coverage adjustment. The coverage file asks whether the policy responds and in what amount. The recovery file asks what right the insured had against another person, whether that right still exists and how effectively it can now be enforced. Those inquiries overlap, but they are not interchangeable, and they sit alongside the coverage questions examined in our guide to insurance disputes in Türkiye.

Turkish law provides the statutory foundation through Articles 1472 and 1481 of the Turkish Commercial Code No. 6102 (the "TCC"). Their application becomes considerably more important in large property, cargo, construction, engineering and liability losses, where a payment may be substantial and the underlying relationships may involve several contracts, several potentially responsible parties and more than one jurisdiction.

1. Statutory Subrogation and the Nature of the Right Acquired

Article 1472 governs subrogation in property insurance. Once the insurer has paid the insurance indemnity, it succeeds by operation of law to the insured's right of action against those responsible for the loss, up to the amount paid.

The mechanism is statutory. An ordinary assignment is not required to produce the transfer contemplated by Article 1472.

The wording of the provision is nevertheless equally clear about its limits. What passes to the insurer is the insured's existing right, and only to the extent of the insurance payment. If proceedings or enforcement have already been commenced against the responsible party, the insurer may prove its payment and continue them from the point reached. Where only part of the loss has been indemnified, the insured retains its right in respect of the uncompensated balance.

Liability insurance is addressed separately in Article 1481. The statutory language follows the same essential logic: after payment, the insurer succeeds to the insured's claim against persons responsible for the loss to the extent of the amount indemnified. The provision also expressly addresses continuation of existing proceedings and liability where the insured or injured party prejudices rights that have passed to the insurer.

The legal effect is often described simply as "recourse". That shorthand can be misleading.

A subrogated claim against a third-party wrongdoer is not necessarily the same juridical claim as an insurer's contractual or statutory right of recourse against its own insured. In compulsory insurance, motor insurance and other specialist regimes, the insurer may be required to compensate an injured person despite having grounds which, as between insurer and insured, permit subsequent recourse against the insured. That is analytically different from taking over the insured's existing claim against an external wrongdoer.

In a contested matter, the legal basis should therefore be identified before the word rücu is used as though it answered the question. This is the point at which insurance coverage and claims disputes and recovery strategy have to be handled as one exercise rather than two.

The derivative character of the claim

Turkish jurisprudence has long treated the insurer as a statutory successor rather than the holder of an autonomous claim created by the policy payment.

The classic formulation appears in the Court of Cassation's General Assembly for the Unification of Judgments decision dated 22 March 1944, E. 1939/37, K. 1944/9. The reasoning, which continues to be cited in contemporary decisions, distinguishes the insurer's claim against the responsible party from a dispute arising out of the insurance policy itself. The subrogated insurer proceeds, in substance, upon the right that the insured could have asserted against that defendant.

This derivative character has several consequences.

If the insured never possessed a viable cause of action against the defendant, the insurer does not manufacture one by making payment.

If the defendant could have relied upon a contractual limitation of liability against the insured, the insurer will ordinarily need to confront the same limitation.

If the underlying claim was subject to a particular court, statutory tribunal, jurisdiction agreement or arbitration clause, subrogation does not justify assuming that the procedural setting has disappeared merely because the claimant is now an insurance company.

Likewise, the recoverable amount is not necessarily the same as the amount paid under the policy. The insurer's payment is the ceiling of the statutory succession; the underlying liability remains the other ceiling. Where the policy responds more generously than the defendant's liability regime, the difference does not automatically become recoverable from the defendant.

For that reason, the recovery analysis should usually begin with the contract, tort or other relationship between the insured and the prospective defendant. The insurance policy establishes why the insurer paid. It does not, on its own, establish why the defendant must reimburse that payment.

2. Payment Is Necessary, but the Legal Quality of the Payment Also Matters

Article 1472 attaches statutory succession to payment of the insurance indemnity. It follows that proof of payment is fundamental, particularly where the insurer intends to enter proceedings already brought by the insured.

In a routine case, this may present little difficulty. In larger losses, however, the character of the payment may deserve closer scrutiny.

Commercial claims are sometimes settled between insurer and insured without every coverage question being finally adjudicated. Payments may reflect negotiated compromises, disputed adjustment positions or commercial considerations going beyond what a court might ultimately have held strictly payable under the policy.

There is nothing unusual about such settlements. They do, however, require care when the insurer subsequently seeks to transfer the entire economic consequence to a third party.

The existence of a settlement between insurer and insured does not determine the liability of a defendant who was not a party to it. Nor should an ex gratia or commercially motivated payment automatically be assumed to fall within statutory subrogation merely because the insurer considered the payment commercially appropriate.

The recovery file should therefore permit counsel to establish the connection between the indemnity paid, the insured loss and the legal damage said to have been caused by the defendant.

This distinction becomes particularly important where the policy measure of indemnity and the defendant's measure of liability are not identical.

A replacement-cost property policy, for example, may respond on terms more favourable than the measure of damages recoverable from a negligent contractor. A cargo policy may compensate items which remain subject, as against a carrier, to contractual or convention-based limits. The insurer's payment is evidence of what was paid under the insurance relationship; it is not conclusive evidence of what the third party owes.

3. Limitation, Jurisdiction and Other Characteristics of the Underlying Claim Remain Material

The derivative nature of subrogation is particularly important in relation to limitation.

An insurer should not proceed on the assumption that payment starts a new limitation period against the responsible party. The relevant analysis ordinarily follows the underlying right to which the insurer has succeeded. The applicable period, its commencement and any specialist suspension or interruption rules must therefore be identified by reference to the original cause of action.

That can produce very different outcomes.

A general tort claim, a contractual damages claim, an international carriage claim and a maritime cargo claim may all be subject to different limitation regimes. Some transport conventions and specialist statutes operate on considerably shorter periods than those encountered in ordinary commercial litigation.

A lengthy adjustment process can therefore consume a significant part of the time available for recovery.

This is one reason limitation should be investigated at the beginning of a substantial claim rather than after the payment file has been closed.

The same derivative analysis affects jurisdiction and the competent court. The fact that the claimant is an insurer does not necessarily turn every subrogated recovery into an ordinary commercial action before the commercial court. Turkish case law has historically looked to the nature of the underlying relationship between the insured and the defendant, and the 1944 Unification Decision remains important in that respect.

The point can be significant where the underlying relationship arises from condominium law, consumer law, carriage, construction, maritime law or another specialist field, and it feeds directly into commercial litigation and interim measures planning.

Foreign jurisdiction and arbitration clauses require the same care. Where the right acquired by the insurer originated in a contract containing an arbitration agreement, it is unsafe to assume that the insurer can take the substantive benefit of the claim while disregarding the dispute-resolution mechanism associated with it.

The correct analysis will depend upon the nature and wording of the agreement, the law applicable to the arbitration clause and the particular basis on which the insurer claims succession.

4. Recovery Rights Need to Be Protected While the Insurance Claim Is Still Being Adjusted

By the time the insurer pays, some of the most important evidence may already have disappeared.

The TCC recognises the problem. Article 1448 requires reasonable measures to prevent or mitigate loss and to preserve the insurer's rights of recourse against third parties. Article 1472 then addresses conduct by the insured that prejudices rights which have passed to the insurer after payment. The statutory scheme therefore treats preservation of recovery rights as an issue that arises during the loss process, not only after indemnification.

In a major property loss, the distinction is practical.

An adjuster may be able to quantify damage after damaged equipment has been removed, but a recovery expert may no longer be able to establish why it failed.

A fire-damaged installation may be replaced before an electrical or mechanical expert has had an opportunity to examine the alleged defect.

In a cargo claim, physical damage may be sufficiently documented for insurance purposes while evidence identifying when and in whose custody the loss occurred remains incomplete.

Construction repairs can conceal the very workmanship or design condition upon which a later claim depends, which is why recovery and the underlying construction and infrastructure dispute should be considered together.

The recovery position should therefore be considered as soon as a credible third-party cause emerges.

This does not mean that litigation needs to be commenced prematurely. It means that the evidence necessary for a later decision should be preserved before circumstances make that decision impossible.

Depending upon the loss, that may involve joint surveys, retention of components, forensic testing, photographs, CCTV, electronic records, maintenance history, contractual notices, carrier reservations, witness accounts or expert protocols.

The insured's dealings with the alleged wrongdoer also require care.

A release, settlement, waiver or acknowledgment can affect the right that would otherwise pass to the insurer. Article 1472(2) expressly imposes consequences where the insured prejudices rights transferred by subrogation.

The issue is especially sensitive in commercial relationships where the insured has an ongoing business interest in preserving the relationship with the person alleged to have caused the loss.

A broad release given for commercial reasons may be inexpensive for the insured once it has been compensated. It may be considerably more expensive for the insurer whose recovery rights are thereby affected.

5. Partial Indemnification Is Legally Straightforward but Commercially Difficult

Article 1472 expressly preserves the insured's claim for the part of the loss that has not been indemnified by the insurer.

The statutory arrangement therefore allows the insurer and insured to hold separate portions of the claim against the same responsible party.

Suppose a loss is established at TRY 50 million and the insurer indemnifies TRY 35 million because of a deductible, policy limit, underinsurance or an uninsured element. Subject to the underlying liability, the insurer may hold the subrogated right corresponding to the amount paid while the insured retains its claim for the uninsured balance.

The position becomes more difficult where the defendant's assets or legal liability are insufficient to meet both claims in full.

The TCC preserves both rights but does not provide a comprehensive express priority regime governing every competition between a partly indemnified insured and its subrogated insurer. That issue has attracted recent academic analysis, including comparative consideration of whether statutory subrogation should be permitted to operate to the prejudice of an insured whose loss remains only partly compensated.

For large losses, the problem should not be left until enforcement.

The insurer and insured may have a common interest in establishing liability but different economic interests in the distribution of a limited recovery. Settlement negotiations can expose that divergence quickly.

A defendant offering a global settlement may want a complete release. The insurer may be prepared to accept an amount reflecting its recovery risk while the insured wishes to preserve the uncompensated balance. Alternatively, the insured may prioritise preservation of a commercial relationship while the insurer wishes to litigate.

Those interests should be identified before negotiations begin.

The same problem can arise where several insurers cover different layers or separate interests. In such cases, the recovery structure should be mapped before any one participant purports to compromise the underlying claim.

6. Contractual Allocation of Risk Remains Effective After the Insured Event

Insurance does not rewrite the commercial agreement that existed before the loss.

This is often the central issue in high-value recovery litigation.

The insured may have accepted a liability cap. The contract may exclude indirect or consequential loss. Responsibility for particular risks may have been allocated through an indemnity. The contract may contain a waiver of subrogation, an additional-insured arrangement or an obligation on one party to procure insurance for the benefit of both parties.

In shipping, logistics, construction, energy and infrastructure work, the contractual matrix can be more important than the immediate physical cause of the loss.

An insurer that focuses exclusively on proving negligence may therefore miss the clause that determines whether the negligence produces a recoverable claim at all.

Waivers of subrogation

Waivers require particular care because they are sometimes treated as insurance boilerplate when they are, in substance, part of the parties' allocation of commercial risk.

A well-constructed waiver can reflect an agreed bargain that specified losses are to remain with the insurance programme rather than being passed back through litigation between project participants or contracting parties.

Whether a particular clause achieves that result depends upon its wording, the underlying contract and the insurance arrangements.

The timing is also relevant. There is an obvious distinction between an agreed allocation of risk made before the loss and an insured prejudicing an already existing recovery right after the event.

Policy wording, endorsements and the commercial contract should therefore be reviewed together.

A waiver contained in the commercial agreement but not properly reflected in the insurance placement may create a separate dispute between insurer and insured. Conversely, an insurer that accepted a policy written against a known contractual risk allocation may face difficulty treating the arrangement as though it had never existed.

Specialist liability regimes

Subrogation identifies the claimant; it does not displace the law governing the defendant's liability.

A carrier may rely upon carriage legislation or an international convention. A shipowner may invoke maritime limitation rules. A manufacturer may face product-liability principles. A contractor's exposure may turn on the construction contract and the Turkish Code of Obligations. Motor claims operate within compulsory insurance and traffic legislation.

Sector-specific rules must therefore be examined after the Article 1472 or Article 1481 analysis, not replaced by it.

This is particularly important in cargo and maritime claims, where liability regimes can prescribe short time limits, mandatory notices, monetary caps and jurisdiction rules that materially change the economic value of recovery. The interaction between those regimes and a recovery action is examined further in our guide to maritime and shipping disputes in Türkiye.

7. Multi-Party Losses Require More Than Identifying the Obvious Defendant

Large losses often involve several actors, each of whom participated in the events leading to the damage without necessarily bearing the same legal responsibility.

A warehouse fire may involve an owner, tenant, maintenance contractor, electrical contractor, manufacturer and security provider.

A construction failure may raise questions concerning design, workmanship, project management, supervision and supplied materials.

Cargo damage may involve the seller, contractual carrier, actual carrier, freight forwarder, terminal operator, warehouse and stevedore.

The recovery case should not be built around the first solvent participant identified in the factual investigation.

The proper exercise is to determine what duty each participant owed, whether that duty was breached, whether the breach caused the recoverable damage, what contractual protections apply and whether another party has contribution or indemnity rights. Where a designer, surveyor or other adviser is among the potential defendants, the claim will often turn on the same issues as a professional negligence action and on the professional indemnity insurance standing behind it.

This frequently requires a liability analysis separate from the technical root-cause report.

A technical expert may properly conclude that a component failed. That does not by itself establish whether responsibility lies with the manufacturer, installer, maintenance contractor, owner or operator.

Likewise, several parties may have made errors without each error constituting a legally effective cause of the insured loss.

In high-value matters, the defendant map should also include the practical recovery position. Corporate solvency, liability insurance, contractual security and available assets may affect litigation strategy, although they cannot substitute for legal liability.

There is little value in obtaining a substantial judgment against an entity from which there is no realistic prospect of collection. Equally, the existence of insurance behind another defendant does not justify a claim that cannot properly be established on the facts and law.

8. Cross-Border Subrogation Should Be Treated as an Enforcement Problem From the Outset

International losses introduce questions that do not arise in a purely domestic recovery.

A Turkish insurer may indemnify goods damaged during carriage involving several jurisdictions. The contractual carrier may be established abroad, the actual carrier elsewhere, the transport document may contain a foreign forum clause and the defendant's principal assets may be located in another country.

A property insurer may pay for damage in Türkiye caused by equipment manufactured abroad. A construction loss may involve a foreign designer, international contractor and Turkish subcontractors.

In such cases, the fact that Turkish law governs the insurance relationship does not answer every question relevant to recovery.

Counsel may need to consider separately the law governing statutory succession, the law governing the underlying liability, mandatory conventions, jurisdiction or arbitration agreements, limitation, evidence located abroad and eventual enforcement. Managing those strands together is the substance of cross-border enforcement work, and the practical mechanics are set out in our guides to cross-border legal coordination in international matters and the recognition and enforcement of foreign judgments and arbitral awards.

That analysis should take place before proceedings are filed.

A jurisdiction in which the insurer can obtain a judgment is not necessarily the jurisdiction in which the judgment will have commercial value.

Where proceedings could properly be brought in more than one country, the comparison should include not merely substantive law but also interim relief, disclosure or evidence mechanisms, procedural cost, timing and the location of enforceable assets.

The same principle applies where arbitration is required. The tribunal may determine liability, but asset preservation and enforcement may depend on courts in other jurisdictions.

A sophisticated cross-border recovery strategy therefore begins with the likely end of the case: where and against what will an award, judgment or settlement actually be collected?

9. Settlement of the Recovery Claim Requires Control Over the Rights Being Released

A settlement may be legally straightforward where the insurer has fully indemnified the relevant loss and unquestionably holds the entire claim being compromised.

Many cases are not so neat.

There may be an uninsured deductible, an amount above the policy limit, separate property owned by another insured entity, several layers of insurance or losses falling outside the scope of indemnification. In those circumstances, an insurer may not possess authority to release every claim arising from the incident.

The settlement documentation should reflect the actual ownership of the rights.

This is particularly important where the defendant insists upon a full and final release covering the entire event.

The insurer should know whether it can give that release. The insured should know whether accepting a settlement will prejudice its residual claim. Where several insurers are involved, each participant's rights should be identified before the defendant is promised finality.

Allocation also matters.

A settlement sum may need to be apportioned between subrogated and uninsured components, interest, costs and separate heads of damage. Contribution or indemnity claims against other responsible parties may need to be preserved.

These are not drafting details. Once the settlement is signed, they can determine whether additional recovery remains available.

10. Recovery Should Be Considered at First Notification, Not at Final Payment

There is a tendency in conventional claims handling to treat recovery as the final phase of the file.

For substantial losses, that sequence is often too late.

The insurer does not need to know its final coverage position before recognising that a third party may be responsible and that evidence should be preserved.

An early recovery review can remain proportionate. It may consist only of identifying the probable defendants, preserving evidence, reviewing the critical contracts, recording limitation dates and ensuring that neither the insured nor another participant destroys a potentially valuable claim.

If the policy ultimately does not respond, some of that work will no longer matter.

If the insurer pays a substantial indemnity, however, the recovery position will not have deteriorated during the adjustment simply because no one had yet labelled the matter a subrogation file.

That is particularly important in losses involving physical evidence or short contractual and statutory time limits.

By the time coverage has been adjusted, experts have agreed quantum and payment has been authorised, the most difficult part of the recovery case should not be reconstructing what happened several months earlier.

Conclusion

The statutory principle of insurance subrogation under Turkish law is uncomplicated. Its application to a substantial recovery rarely is.

Articles 1472 and 1481 permit the insurer, following payment, to succeed to qualifying rights held by the insured against those responsible for the loss. The succession is limited by the amount paid, and partial indemnification leaves the insured with its residual claim. The TCC also protects the insurer against conduct that impairs rights which are, or may become, relevant to recovery.

What the legislation does not do is improve the claim that has been transferred.

The insurer remains concerned with the legal relationship that existed before the policy responded: liability, causation, contractual risk allocation, limitation, jurisdiction, evidence and the defendant's available defences.

That is why the most effective recovery work tends to begin before payment rather than after it.

For an insurer, the question is not simply whether a third party appears responsible for the incident. It is whether the insured possessed an enforceable claim against that party, whether the claim has been preserved, what portion has passed to the insurer and whether pursuing it offers a commercially rational route to recovery.

Where the loss is substantial or cross-border, those issues deserve to be analysed as part of the claims strategy itself.

How Terziolu & Partners Can Assist

Terziolu & Partners advises insurers, insured businesses and commercial parties on insurance subrogation, recourse and recovery matters involving Türkiye.

The firm's work includes major property and fire losses, cargo and transport recoveries, construction and engineering claims, liability and professional-risk matters, contractual indemnities, proceedings involving multiple responsible parties, limitation and jurisdiction analysis, settlement strategy and cross-border recovery.

Where a matter extends beyond Türkiye, the Turkish insurance and liability position can be coordinated with foreign proceedings, arbitration and enforcement in the jurisdictions in which defendants or assets are located. Our Istanbul office leads this work, alongside foreign counsel where the defendant or the assets sit in another jurisdiction. If a substantial loss may give rise to a recovery, speak to us while the evidence and the limitation position can still be protected.

Selected Authorities and Further Reading

• Turkish Commercial Code No. 6102, particularly Articles 1448, 1472 and 1481. Official text published in the Official Gazette No. 27846 dated 14 February 2011; Turkish Grand National Assembly and Ministry of Justice official legislative texts.
• Court of Cassation, General Assembly for the Unification of Judgments, 22 March 1944, E. 1939/37, K. 1944/9. The principal authority for the proposition that the insurer's subrogated action derives from the insured's underlying claim rather than from the insurance policy, with consequences for the character of the proceedings and the competent court.
• Court of Cassation, General Assembly for the Unification of Judgments, 17 January 1972, E. 1970/2, K. 1972/1. Frequently cited in Turkish insurance-law literature in connection with statutory succession and the effect of the underlying claim's limitation regime.
• Sinan Sarıkaya, "Kanuni Halefiyet Sigortalı Aleyhine İşletilebilir mi? Amaca Uygun Sınırlama Yöntemi Ekseninde Bir Değerlendirme", Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi, Vol. 31, No. 1 (2025).
• Yusuf Tekin, "Sigortacının Halefiyeti ve Alacağın Temliki Hâlinde Görevli Mahkemenin Belirlenmesi", İstanbul Yeni Yüzyıl Üniversitesi Hukuk Fakültesi Dergisi, Vol. 4, No. 2 (2026), pp. 310–328.
• Ecehan Yeşilova Aras, "Kredi (Ticari Alacak) Sigortasında Sigortacının Kanuni Halefiyeti İçin TTK m. 1472 Hükmü Elverişli midir?", İstanbul Üniversitesi Hukuk Fakültesi Mecmuası, Vol. 71 (2013).

This publication is intended for general information only and does not constitute legal advice. Insurance subrogation and recovery depend upon the particular policy, the legal basis and extent of the underlying liability, the nature of the payment, contractual risk allocation, limitation, evidence, jurisdiction and any applicable specialist legislation or international convention. Specific advice should be obtained before taking or refraining from any action.