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Exculpatory clause in employment contract  / So you want to be an expert witness / cs webinars 
August 3, 2020
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Electronix Systems Central Station Alarms - August 6, 2020
Exculpatory clause in employment contract – Florida case
            Guard company employed security guard for on-site stationary guard service.  At time of employment, and as a condition of that employment, the guard signed an employment agreement which, in essence, provided that the guard agreed to look exclusively to the employer’s workers compensation policy if injured on the job at a customer site.  The guard slipped on a stairwell and sustained injury sufficient to qualify for workers comp coverage.  The guard filed a premises liability lawsuit against the property owner [the customer of the guard company] alleging negligence in the maintenance of the stairwell.
            The contract provision read as follows:
Payment on Work-Related Injuries
I understand that state Workers’ Compensation statues [sic] cover work-related injuries that may be sustained by me. If I am injured on the job, I understand that I am required to notify my manager immediately. The manager will inform me of my state’s Workers’ Compensation law as it pertains to seeking medical treatment. This is to assure that reasonable medical treatment for an injury will be paid for by Alliedbarton’s [sic] Workers’ Compensation insurance.
As a result, and in consideration of AlliedBarton Security Services offering me employment, I hereby waive and forever release any and all rights I may have to:
- make a claim, or
- commence a lawsuit, or
- recover damages or losses
from or against any customer (and the employees of any customer) of AlliedBarton Security Services to which I may be assigned, arising from or relating to injuries which are covered under the Workers’ Compensation statues [sic].”
            The property owner [defendant in the lawsuit] moved for summary judgment, relying upon the above Exculpatory Clause.  The lower court granted the motion; the intermediate appellate court affirmed.
            The court discusses the enforcement of exculpatory clauses in general and found that such provisions, if properly written and not ambiguous are enforceable where there is no willful misconduct or gross negligence.  
            Security companies, and I include alarm companies in that category, have an obvious interest in preventing their employees from suing customers.  Here the court found the customer to be a beneficiary of the employment agreement.  The issue was addressed in a single sentence in the decision:
            “No such ambiguity exists here, as the disclaimer specifically explains the rights released (“all rights ... to make a claim, or commence a lawsuit, or recover damages or losses”); the beneficiaries of that release (“any customer (and the employees of any customer) of AlliedBarton Security Services to which I may be assigned”); and the situations in which this release applies (“arising from or relating to injuries which are covered under the Workers’ Compensation statu[t]es”). “
            Here’s the case, decided July 22, 2020 in the Fourth District Court of Appeals, Florida.  DIVESTON MERLIEN, Appellant, v. JM FAMILY ENTERPRISES, INC., SHERIDAN 441, LLC and BENDLES RENTALS, LLC, Appellees. No. 4D19-2911 [July 22, 2020]
So you want to be an expert witness
            I’m about to accept an expert witness case.  I worked out the details with the attorney.  We agreed on the details.  Then right before signing, the asked me to change the contract to be with their client, instead of the law firm.  I asked them to clarify how the communication and billing would run. 
What do you think?
            You are entitled to be paid as an expert witness; you apparently know that.  As an aside, if you are a fact witness you can be subpoenaed to testify in a case, both in pre-trial discovery, and at time of trial, and you aren’t entitled to get paid.  But, you are also not required to answer a question calling for your expert opinion without getting paid.  The above question comes from an expert who had no involvement with the matter, so this expert is not called as a fact witness, but as an expert, and clearly entitled to be paid.
            Who is going to pay the expert?  Experts are generally contacted by lawyers.  A lawyer is an agent for the client and not personally liable for a contract agreed to on behalf of the client.  Therefore, when a lawyer engages the expert it’s the client who is expected to pay the expert, though the money may pass through the lawyer.  If the lawyer isn’t paid by the client, does the lawyer owe the money to the expert personally?  
            The answer will depend on the written engagement agreement, and yes, there needs to be a written engagement agreement which sets forth the scope of the expert witness’ time constraints and compensation arrangement.  The agreement should specify who is going to pay the witness, and when payment is to be made.  
            The expert should require both the client and the lawyer to be responsible for the payment.  But, this may be superfluous because I also recommend that the expert insist on getting paid in advance.  By in advance I mean in advance of committing to a schedule, not just in advance of actually performing the services, whether those services are record review, consultation, report writing, pre-trial discovery and trial time [post-trial too, sometimes]. You can agree to return unused portions of the payment, a better position to be in than chasing your fees after you’re no longer needed.
            Be sure to get a sufficient deposit to cover your time.  Keep in mind that once you do get “on the stand” the judge can require you to stay there until the lawyers are done examining you; that may take longer than you anticipated so get a deposit that covers additional time.  

Central station webinars
            Not all central stations on The Alarm Exchange have opted to participate as of yet.  You still have time.  Contact our Concierge Coordinator Stacy Spector,Esq at or 516 747 6700 x 304.  You just might pick up one or more dealers.
            And, speaking of dealers, selecting the right central station is important; there’s lots to consider.  K&K is saving you the trip to Vegas and bouncing from one booth to another, stuffing your pockets with candy and pens [not that there is anything wrong with that].  You have and you will be hearing from the best of the best in this webinar series.  
            Keep in mind that any legitimate central station is going to require you to sign a Dealer Agreement.  This isn’t a car rental contract at the airport.  It can be modified and you need to ask for those modifications.  I’ve designed a Rider that applies to every central station Dealer Agreement because it includes all the provisions a dealer should be asking for and is entitled to.  If you are negotiating with a new central station or re-negotiating with your current central station, be sure to get the Rider.  It’s $500 and well worth it.  Order it at in the Monitoring Centers Contracts category.

Central Station* 2020 webinar series K&K is hosting webinars by central stations, one at a time, who will address "why you should be using our central station".  Each webinar will be approximately 20 minutes and then Q&A opportunity.  See what your central station has to offer or what others offer, enabling you to choose the right central station for you.  You should be using a central station listed on The Alarm Exchange to be assured of quality and more importantly, accountability.
  *  only central stations on The Alarm Exchange will be invited to participate
Register Now for the CS webinar series: 

Electronix Systems Central Station Alarms - August 6, 2020
Central station 2020 webinars

             Not all central stations listed on The Alarm Exchange have opted to participate in our webinar series, "Why you should be using our central station" and I've been wondering why.  Only answer I can come up with is, apparently, they don't think you should be using their central station.  Go figure.
            Our central station's webinars have begun.  Register now.  
            Central stations will have the opportunity to tell you what services they offer, to what extent the services are unique or specialized and what you can expect to pay.
            The webinars offer an excellent opportunity to interact with your central station, scope out another central station, and consider whether you want to move accounts or open new accounts with a particular central station.  Am I encouraging central station hopping?  No, but I am encouraging you to use central stations listed on The Alarm Exchange.  Why, for you, not me.  You get the added protection of knowing that the listed central stations are expected to deal with dealer issues and cooperate with a goal of resolving disputes. Those that fail to co-operate risk having their post removed from The Alarm Exchange.  That may not sound like a big deal to you, but check out The Alarm Exchange central station category.  Every major reputable central station is participating.  If your central station isn’t, move to one that is.  If you don’t, don’t bother complaining to me about problems you have with the central station; I have no relationship with that central station and won’t be able to make a call to resolve your issue.  
            So make some time to attend the webinars, by video or on your phone.  They will all be recorded and you will be able to view or hear them by visiting the K&K website and navigating to the alarm webinars:

To order up to date Standard Form Alarm /  Security / Fire and related Agreementsclick here:
You can check out the program and sign up here: or contact our Program Coordinator Stacy Spector, Esq at 516 747 6700 x 304.
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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