Fire loss case in Ohio; decision from appellate court just decided. I almost don't know where to begin. This case is a nightmare. It started in 2006. Was tried before a jury in 2011. Appellate decision just now in 2015. Outcome: sent back to the trial court [yes, the very same one that didn't have a clue how this case should be managed or tried - got just about every legal issue wrong] for yet another trial and who knows how many torturous proceedings. Keep in mind that the alarm company has had to live with this lawsuit for 9 years already. And guess what? I read the case with my mouth aghast [because of how the appellate court described the lower court's decision, not so much the appellate court's decision] and I have no sympathy for the alarm company because the alarm company deserves it. Why? Not because it did anything wrong with the commercial fire installation or monitoring in the car dealership that burned down, but because the alarm company:
- didn't use a Standard Form Fire Alarm Agreement [even one available when the system was installed in 1993]
- didn't upgrade it's fire alarm monitoring contract to the Standard Commercial Fire All in One, which would have covered monitoring, inspection and repair service [and was available in 2013 - that almost 3 years ago]
- had only a reduced size of the contract to produce at trial [but did have the form in regular size]
- didn't have a jury waiver provision
- didn't have other protective provisions, obviously
- allowed it's insurance company to engage attorneys who have now been handling this case for 9 years [in all fairness I don't know if Ohio allows what's called "interlocutory appeals - which means appeals from orders made during the case or it's required to wait until the case is over to final decision by the trial court to then appeal. Ohio does permit some interlocutory appeals but apparently everyone in that state, judges and lawyers, are confused when and under what circumstances appeals can be taken]
You can't read the decision of the appellate court [which is posted on my website under Leading Cases, Ohio, Brondes Ford v Habitec Security - click here to read case https://www.kirschenbaumesq.com/article/brondes-ford-inc-et-al-appellees-cross-appellants-v-habitec-security-et-al-appellant-cross-appellee-court-of-appeals-no-l-12-1358-court-of-appeals-of-ohio-sixth-appellate-district-lucas-county-2015-ohio-2441-2015-ohio-app-lexis-2346blso sued. But Simplex fairly quickly got itself out of the case by paying $375,000.00. No doubt Simplex had no liability and could have successfully defended this case, but probably had the foresight to see how this case was going and figured it better idea to cut its loss, save legal fees, time and further uncertainty in the outcome of the case. In hindsight it was a reasonable move. Too bad for the installing alarm company, Simplex's money helped fund the Plaintiff's continued lawsuit.
I'll start where I should be ending. If you do commercial fire you should be using the Fire All in One. Get it and get your existing subscribers to sign it. The contract that was used by the alarm company in this case was from 1993. Fire was in 2002. No updated contract for 9 years. That is just dumb.
As far as analyzing the case, I think the real lesson is in how it was handled, though a better contract would have made it easier to defend [if the attorneys understood the different provisions] and for the judge to rule on [if the judge understood anything about contract law]. I only read the contract provisions referred to in the decision, but apparently that contract
- didn't have a jury waiver
- didn't have a waiver of subrogation
- didn't have a properly worded exculpatory clause
- didn't have a properly worded limitation of liability clause
- didn't have a well drafted indemnity clause
- didn't have an insurance procurement clause
I am also convinced the case should have been and could have been handled differently. But that's what makes horse races. We await the outcome of this case assuming it doesn't get settled or decided without a written decision. Update your contracts today and then get your subscribers to sign new contracts.