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 
************************************
Exculpatory Clause and recent cases in Illinois and Tennessee / day 2 of contract sale - save thousands
January 2, 2019

********************
    The Standard Form Agreements have been updated for 2019.  If your contracts are from 2017 or earlier you need to update.  For contracts after 2017, changes have been made and you should check with our Contract Administrator, Eileen Wagda, at 516 747 6700 ext 312 to see if your form needs updating.  Contracts purchased after August 2018 are already updated.  Keep in mind that our updates are free for 6 months and half price for 12 months from your original order date. Requests for updates will be processed and sent out after the new orders are processed.  The sale ends January 12, 2019; the sooner you order the sooner you will get the contracts.   
******************

notice of contract sale - order at www.alarmcontracts.com [you don't need a lawyer to figure this out - order during the sale and save thousands of dollars - call our Contract Administrator Eileen Wagda at 516 747 6700 x 312 for assistance]
*******************
    
Contract sale starts now and runs through January 11, 2019, ending at 3 PM, EST. The discount will be accepted on all orders received between now and January 11, 2019 by 3 PM*.  This will definitely be the best deal of 2019.  Changes have been made and you should check with our Contract Administrator, Eileen Wagda, at 516 747 6700 ext 312 to see if your form needs updating.  We starting adding the updates several months ago so you may be up to date. Keep in mind that our updates are free for 6 months and half price for 12 months.  Updates will be prepared and sent out after the new orders are processed.  The sale ends January 11, 2019, so please be patient.  When you place the order the full price will come up.  We will apply the discount manually when we process the order.


Here's the deal:
   
    Nationwide DIY with monitoring.  $3500.00  Save $1000.00**Buy 1 Residential, Commercial or Fire All in One and get $100 off and $25 off Disclaimer Notice
    Buy 2 All in One forms and get $100 off first and $200 off second and $50 off Disclaimer Notice and $100 off alarm.com rider.   Save up to $450.
    Buy 3 or more All in One forms and get same as above and $300 off the third form and $400 off the fourth form.  Save up to $1150.00 [Residential, Commercial, Fire, Home Automation]
    Commercial Mobile Surveillance Lease $1000.  Save $500
    The Fire All in One with Security Rider $1250.00.  Save $400.00  Add the Commercial Fire All in One and the Commercial All in One and get $200 off each.  Save $800.00
    Qualifier Agreement  $1200.00   Save $300.00
    Nationwide PERS with or without GPS tracking. $3500.00  Save $1000.00**
* Your order must be placed on line at www.alarmcontracts.com and received by our office no later than January 11, 2019 by 3 PM EST.  Orders must contain valid credit card payment.  Fill out the order form; the full prices will show and we will apply the discount before processing the order.  Orders arriving after sale ends will be returned or with your approval charged regular published rates.  Orders will be processed in order received.  Rush orders, delivered by email within 48 hours, add 15% - call Eileen to process.


** Does not include consultation or modification
     What's our Guarantee policy re updates?
    Free updates within 6 months of purchase*
    Half price within 6 months to 1 year*
* applies to original purchase only
To check if you need or are entitled to an update contact our Contract Administrator Eileen Wagda at 516 747 6700 x 312.  Update orders are processed after full price or discounted orders.
***************

Exculpatory Clause and recent cases in Illinois and Tennessee
****************‚Äč
            Alarm companies rely on the exculpatory clause in their contracts with subscribers.  The provision, when properly written, insulates the alarm company from liability even caused by the alarm company’s negligence or breach of contract.  The provision is consistently and repeated enforced in all courts throughout the United States.  But just about every court decision warns that courts must construe exculpatory clauses very narrowly, and in some cases, not at all.  
            Besides the obvious reasons alarm companies include the exculpatory clause in their subscriber contracts, perhaps the most compelling reasons are that
  *  monitoring centers require that subscribers agree to an exculpatory clause
  *  insurance companies insuring the alarm industry with E&O policies require that subscribers sign contracts with the exculpatory clause
  *  buyer of alarm accounts will look for the exculpatory clause in the subscriber contracts, and if it’s not there the offered multiple will plunge or the buyer will disappear
            In the Illinois case the plaintiff was a patron of a gym.  He went to the bathroom and ended up sitting in the stale for more than 15 minutes.  The room had light switch that turned the light off when there wasn’t movement in the room for 15 minutes.  The plaintiff was left in the dark, left the stale and fell injuring himself.  The gym had an exculpatory clause in its gym contract.
            The court refused to enforce the exculpatory clause, finding that the injury was not within the scope of the anticipated activities.  The court noted that had the injury occurred by slipping in the shower or on the bathroom floor the court would have enforced the provision.  The court held:
            ““The foreseeability of a specific danger defines the scope” of the exculpatory clause, and the relevant inquiry is whether the Plaintiff knew or should have known the accident was a risk that was encompassed by his release. The issue in this case is whether Plaintiff should have known about the specific danger that caused his injuries; the Court does not believe that he should.” [citations omitted]
            The Tennessee case involved a medical patient who was required to sign a transport agreement with an exculpatory clause in it.  The plaintiff fell getting into the transport van and sued.  The court held:
            “We hold that to determine the enforceability of an exculpatory agreement, a court should consider the totality of the circumstances and weigh these non-exclusive factors: (1) relative bargaining power of the parties; (2) clarity of the exculpatory language, which should be clear, unambiguous, and unmistakable about what the party who signs the agreement is giving up; and (3) public policy and public interest implications. We hold that the exculpatory provisions in the agreement between the medical transportation company and the patient are unenforceable based on the unequal bargaining power of the parties, the overly broad and unclear language of the agreement, and the important public interest implicated by the agreement. Thus, the exculpatory language in the agreement does not, as a matter of law, bar the patient’s claim.”
            Because of the last sentence I think the holding is unclear, though the court goes on to explain its thoughts on the exculpatory clause, and that is of interest to the alarm industry.
            There is an extensive analysis of the case law in Tennessee and other states regarding enforcement of the exculpatory provision.  Much of the analysis addresses case law in that state regarding licensed professionals, such as doctors, and the confusion in the state whether the enforcement of the provision was barred when it came to professionals, as a matter of public policy.  The case overruled existing precedent and laid out an new rule that essentially relies on public policy considerations.  In this case the court found that the patient being transported had no choice but to sign and also determined that the clause was overly broad.
            If you have interest in the legal analysis I invite you to read the entire decisions on K&K’s website under Alarm Law Issues, Leading Cases.  The first case is in Illinois,  Watson v LTFClub Operations, and the second case, in Tennessee, Copeland v Healthsouth.  
            Here is the link to Leading cases, state by state. http://www.kirschenbaumesq.com/page/alarm-law-issues
********************** 

NOTICE:  You can always read our Articles on our website at ww.kirschenbaumesq.com/page/alarm-articles
***********************
THE ALARM EXCHANGE

alarm classifieds alarm security contractsThis area is reserved for alarm classifieds, alarm company announcements, solicitations, offers, etc. Those wishing to sell or buy; borrow or lend; dealer program or dealer; central stations; insurance brokers; business  brokers, insurance companies. Equipment to sell; looking for employees; subcontractors; mergers;

There is no charge to post a listing here.Include your contact information, phone, email and web site.  If you would like to submit a posting, please send an email to ken@kirschenbaumesq.com.  To create a reciprocal link to our website, click here.
**************************************************************************************
Many of you are forwarding these emails to friends or asking that others be added to the list.
Sign up for our daily newsletter here: Sign Up.  You can read articles and order alarm contracts on our web site www.alarmcontracts.com

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
516 747 6700
www.KirschenbaumEsq.com