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Going to court
October 20, 2020
Title:  Importance of Sound Financial Management; How to make your company bankable
When:  November 4, 2020   Time:  12 PM  noon ET
Presented by:  Mitch Reitman
Hosted by:  Ken Kirschenbaum
Who should attend: owners, CFO, general managers
Register Here: 

Going to court  
            Being sued in small claims court for $10K for break-in that SUB says we didn’t dispatch PD in a timely manner.
            Think we did everything right including P D dispatch (not to mention that the customer was in arrears for not paying monitoring fees when the occurrence happened.
            Think this is pretty much a slam-dunk and more than likely we’ll file a cross complaint for the monies owed us and our equipment - they’ve since gone out of business and our leased system disappeared with them (funny-we heard nothing from them on any claim for over 9 months until we put their ass in collection for what’s owed ($4500) and then we got served.
            Additional background: we’re in Calif., we are a corp. and we do have full E&O and limits of liability clauses in the contract.
            With all this said, think that will be pretty straightforward in front of Judge but I do want to be prepared. I am looking for case law that I can present to the judge that has enforced the limits of liability clause in our industry contract in the past.
            Any cases you can cite and any other input you might have?           
            (We Love You Ken)
Wish to remain 
            I hope you’re on your way to court and not to the cleaners.  Small claims court is like going to a carnival fun house and looking at yourself in one of those funny mirrors.  You thought you knew what you looked like, but can’t find that look in any mirror.  The problem with Small Claims Court is that the judge is not required to adhere to procedural or substantive law; they get to arrive at a decision using “substantial justice”.  Since you’re from California I can’t venture a guess what that might mean.  
            But let’s take a step back and consider a bunch of issues.
            First, the most obvious, you’re being sued because you initiated collection procedures.  I won’t discourage collection efforts but you should be selective when deciding who is worth going after.  Collection procedures are often a catalyst for consumer complaints or nonsense Small Claim actions.  
            Next, it doesn’t sound like you have turned this matter over to your insurance carrier; your E&O carrier.  You should.  Your deductible is not likely $10,000 and you have defense counsel assigned who would be the one to look for legal defenses to present.  
            You also don’t mention what contract you used for this subscriber.  If it’s one of the Standard Form Agreements then you should have an arbitration clause in the contract and you should remove the Small Claims action to arbitration.  I don’t know what Small Claims court looks like in California, but in New York is akin to a day at the zoo.  As far as an outcome, like a walk in a dark alleyway; throw a dart at a dart board.
            Even if you don’t move the case to arbitration, if you have the Standard Form Agreement you have available a sledgehammer to kill a fly.  All you have to do is get the judge [and your defense counsel if you end up calling your carrier] to read the contract.
            Please let us know how you end up, and really, best of luck.  

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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