KEN KIRSCHENBAUM, ESQ ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE You can read all of our articles on our website. Having trouble getting our emails? Change your spam controls and white list ken@kirschenbaumesq.com ******************************* ADT lawsuit dismissed ; California law discussed June 3, 2019 ********************** ADT lawsuit dismissed ; California law discussed ********************** State Farm General Insurance sued ADT under subrogation rights. State Farm insured the owner of the house. The house was rented and it was the tenant who contracted with ADT for a burglar alarm system. State Farm paid its insured, the owner of the premises, on a fire loss claim approx. $188,000. Burglars entered the premises and then set the place on fire. According to the reported facts, the burglar alarm activated but ADT failed to notify police or anyone on the call list. [the facts don’t indicate if ADT actually received a signal]. State Farm’s complaint had causes of action for negligence, gross negligence and breach of implied warranties. ADT moved to dismiss the complaint for failure to state a cause of action [this is not the same as a summary judgment motion because this motion tests only the sufficiency of the allegations in the complaint. ADT, on this motion, essentially relied on the defense that ADT owed no duty to the owner of the premises [who was not ADT’s customer] and that State Farm stood in the shoes of the owner and had no greater rights or standing than the owner. Here’s the important part: ADT’s position was that California does not recognize any common law duty for an alarm company to properly monitor and respond to an alarm signal. The only duty that the alarm company can have is a contractual duty, and that contractual duty is defined by the Alarm Contract. ADT relied on two earlier alarm cases which held that an “alarm company not liable for negligence or gross negligence because any duty owed by an alarm company is premised not upon any common- law duty of care but instead upon the company’s failure to provide agreed-upon services in a contractual relationship” [Fireman’s Fund Ins. Co. v. Morse Signal] and “Plaintiffs {in the Valenzuela v. ADT case] have not pointed to, nor has this Court found, a single course in which a court held...that an alarm company’s failure to notify the relevant parties of a received burglar alarm signal created a duty outside of the contract and therefore constituted [ ] negligence.” This case presented unusual facts, at this stage of the litigation. The State Farm complaint did not mention a written contract and did not rely on any written contract. In point of fact, State Farm seemingly avoided the written ADT contract because of the various protective provisions. Rather, State Farm attempted to assert a common law, as opposed to contractual claim, for negligence. The court dismissed the complaint. ADT argued various defenses that could be raised based on the ADT contract. However, since the complaint did not allege the contract the court declined to address those defenses and additionally permitted State Farm to serve an amended complaint, presumably based on third party beneficiary status under the ADT contract. I suspect State Farm won’t bother with an amended complaint, because if it does serve that complaint I am sure ADT will move against it based on all of the protective provisions in the ADT contract. The full case is posted under Leading cases, California. State Farm General Insurance Company, Plaintiff, V. Adt. ******************* CONCIERGE LAWYER SERVICE FOR THE ALARM INDUSTRY PROGRAM You can check out the program and sign up here: https://www.kirschenbaumesq.com/page/concierge or contact our Program Coordinator Stacy Spector, Esq at 516 747 6700 x 304. *********************** NOTICE: You can always read our Articles on our website at ww.kirschenbaumesq.com/page/alarm-articles *********************** THE ALARM EXCHANGE
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Ken Kirschenbaum,Esq Kirschenbaum & Kirschenbaum PC Attorneys at Law 200 Garden City Plaza Garden City, NY 11530 516 747 6700 x 301 ken@kirschenbaumesq.com www.KirschenbaumEsq.com
