KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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Hind-sight on successful break-in
November 28, 2022
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Hind-sight on successful break-in
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Ken
          I have a question on a customer we have had for four year.
          We monitor two stores for them. One evening around 10pm. The AC Power had reported to the customer through phone APP. The Robbers had turned off an outside Breaker, drilled out the door lock, came in the delay door.  The alarm panel and Radio were within 10 feet of the door. The robber smashed and ripped off the wall the alarm and radio before the delay was completed, so no alarm went through, only the AC Power loss.
          Customers financial person called us and stated the Battery must have failed and you did no service after Hurricane Ian. I really didn't know what to say other than I'll be down to the store. When I arrived I saw what had happened.
          The owner requested a new alarm panel and continued monitoring and we moved the panel to a new disclosed location. I have notified my insurance and sent so far what I have.
          Any thoughts
Name withheld
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Response
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          Let’s start with what you’d rather not hear.  You made the right move notifying your E&O carrier, though I suspect you’re going to get little or no assistance; the carrier is likely going to tell you to let them know if you get sued, or at very least a claim letter.  Incidentally, you could have waited to notify the carrier until you got a claim.  Were you motivated to notify the carrier immediately out of an abundance of caution or guilty conscious or both? 
          The experts would have a field day with what you did wrong or could have done better.  The leap to having “prevented” or “detected” the break-in and loss is the connection the experts need to make.  The design of the system, placing the panel and radio by the door, open and obvious, could be opined to be the wrong placement; certainly the radio.  An expert may criticize the lack of cameras and some detection device before the door lock was drilled and door entered.  Then you mention the battery, though I am not sure how that would have helped if the radio was destroyed during the delay.  Nevertheless, arguably a theory of negligence on your part can be conceived and articulated.  If you may have made a mistake where does that leave us, and by us, I mean you?
          You left out the most important part for a legal analysis, your contract with the subscriber.  For purposes of discussion we will assume you do not have a Kirschenbaum Contract™, in this case a Commercial All in One, because if you do then this article can be cut short here and you could tell the subscriber, “sorry, and your next payment is due”. 
          You made one comment that I want to focus on, your failure to service the system after the hurricane.  I am not clear on why you would have serviced the system after the hurricane.  You haven’t mentioned if you have a Service Plan in place; you don’t mention that you received any trouble signal, such as low battery and you don’t mention that the subscriber contacted you requesting service after the hurricane and before the break-in.  Unless the subscriber has signed up for Inspection service, which is rare for security systems, you would be expected to visit the premises and perform a repair only upon notice of system problem or upon request by the subscriber advising of system problem. 
          What if you did get a “low battery” signal?  You still wouldn’t have repaired the system unless your subscriber signed up for a Service Plan or agreed to pay you for the per call service.  You don’t mention that.  We also don’t know why the panel and radio was installed where it was visible and assessable in close proximity to the front door which was programmed with a delay to permit entry.  I’m not technical, but it seems to me that an argument could be made that the system could have been better designed and had some back-up features that would have caused a signal to get to the central station.
          What if you do have a Commercial All in One © with this subscriber?  Hopefully that means you also have a Disclaimer Notice © .  Both the contract and the Disclaimer Notice emphasis that other and presumable better equipment and service was available, such as cameras and activity alert before illegal entry into the premises.  Maybe a back-up system that was not only not accessible by the front door but not even obvious, known only by the subscriber.
          The Commercial All in One will absolve you of any liability in your scenario.  That would be the case even if the subscriber said to you, “hey why are you installing that radio by the front door; can’t it be ripped off the wall?  I’m willing to pay more money to have it placed elsewhere”.  If you thought about it and decided that the placement was within acceptable installation guidelines you would be guilty of negligence, at best.  That also presumes a lot, including the fact that you didn’t say to the subscriber “I can give you a lot more security equipment and do a much more secure installation if you’re willing to pay for it”. 
          Using the Commercial All in One you should have shifted the risk of loss by burglary to the subscriber, where it belongs.  If the subscriber makes a claim to its carrier and the carrier thinks it will recoup the loss from you, it will be met with the Commercial All in One contract terms and conditions, including waiver of subrogation.  The subscriber may have also complied with the Commercial All in One and named you as additional insured on its insurance policy, another reason its carrier can’t look to you. 
          I know I haven’t gotten to something on your mind, because you started with it; you have two locations with this subscriber and you want to keep this subscriber as a customer.  You don’t mention what kind of loss the customer suffered, and the range can be $100 to millions.  Maybe for customer relations you will offer some concession, such as a new panel and radio [placed somewhere else hopefully].  If you do get to resolve this that way be sure to document the agreement reached to resolve the issue.  Last thing you want is to install a new system and then the customer sues you for the loss. 
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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
ken@kirschenbaumesq.com
www.KirschenbaumEsq.com