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Comment on GA jewelry customer lawsuit / CS webinars continue this week
October 23, 2023

Comment on GA jewelry customer lawsuit from article on October 13, 2023

            Thanks for all you do.  
           What would have happened if the police had been called and the plaintiff was notified that the police said all was secure.  Like this Georgia case, they tore up the system.   The plaintiff then decided to not look at his cameras or go down to the store that night.  The same results, they emptied the safes.  The insurance company paid the plaintiff for what was in one safe but not the other because it was an old safe and they had been told to upgrade it.  The defendant uses your Commercial All in One
            Would like to be
             I don’t think the Standard Form Agreement was used in this case.  The contract did apparently have a limitation of liability clause.  The jewelry store owner looking at his cameras if he had any, or the police coming and not seeing any sign of break-in and reporting no problems, has little if any relevance when analyzing a case like this because most of the time the sequence of a burglary is typically difficult or impossible to know and prove.  What difference would cameras make if burglars are in and out within minutes of a break-in; confirming the burglary isn’t going to change the loss.
           Georgia, like other states, enforce limitation of liability provisions in alarm contracts, but not for willful or grossly negligent conduct.  Plaintiff’s rarely plead gross negligence or willful conduct [because it doesn’t exist or the attorneys for the Plaintiff simply don’t know they will have to reach that hurtle] and when they do they usually can’t prove it.  While some cases do survive a motion for summary judgment, most don’t, and I am not aware of any case where a judge or jury actually found gross negligence or willful misconduct [and I’m at this a long time – so if you know of a case let’s hear from you]. 
            The court in the Georgia case decided the case correctly, until the very end.  Throwing the Plaintiff a life-line by permitting Plaintiff to re-plead alleging gross negligence so as to avoid the consequences of the alarm contract was not just unfair to the alarm company [because of added expense defending a frivolously claim] but a waste of judicial and everyone else’s time.  The facts of the incident were well fleshed out and aren’t going to change.  Why the court thought that pleading the same facts but calling it gross negligence is going to make a difference escapes me.  In my view courts shouldn’t be coaching a party how to correct or fix their case.
          How would the Commercial All in One have changed this case?  Well for one thing the updated Commercial All in One does have a limitation of liability for gross negligence; it’s not the same as for ordinary negligence but it still limits exposure of the alarm company so it shouldn’t have to come out of pocket, let alone go out of business.  This change to the Standard Form Agreement was prompted by a federal court decision reviewed on this forum.  We haven’t had to test the new provision’s effectiveness yet.
            You have choices with the contracts you use with your customers.  I suppose you have a choice if you are going to use contracts at all, but all ridiculous choices need no mention.  When using the best contracts costs no more and probably less than other contracts the choice seems clear to me.

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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