KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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ISC group and private meetings / Will contracts shield liability if using wrong panel is gross negligence
March 9, 2023
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Schedule for Group Discussion Meetings at ISC [subject to dealer interest] Meetings are limited to 6 dealers. Contact Stacy Spector,Esq at 1 516 747 6700 x 304 or SSpector@Kirschenbaumesq.com to reserve a spot. Private meetings with Ken Kirschenbaum are still available – contact Stacy for appointment. All meetings presently scheduled at Palazzo Prestige Lounge.
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Group Meeting Schedule:
Tuesday, March 28 at 2:00pm-2:45pm: Employee Retention Credit Group Meeting with Mitch Reitman
Tuesday, March 28 at 3:00pm-3:45pm: Central Station Group Meeting with David Smith, COPS
Wednesday, March 29 at 10:00am-11:00am: Finance Group Discussion with Jim Wooster, Acquisition & Funding Services
Wednesday, March 29 at 3:30pm-4:00pm: AIN Buying Group with Stan Matysiak
Thursday, March 30 at 9:30 - 10:30am at ESA meeting room: Bassano Suite 2705 by convention floor: Liability, insurance, horror stories, claims and other issues from perspective of Claims Administrator [Bart} and Alarm Defense Attorney [Ken]. Ken Kirschenbaum and Bart Didden. This promises to be entertaining and informative. You don't want to miss this.
Thursday, March 30 at 11:00am-11:45: Alarm Brokers Group meeting with Rory Russell, Alarm Financial Services
Thursday, March 30 at 1:00pm-1:45pm: Contracts Group Meeting with Ken Kirschenbaum
Thursday, March 30 at 2:00pm-2:45pm: Insurance E&O Group Meeting with Shawn Iverson, The Insurance Center
Thursday, March 30 at 3:00pm-3:45pm: Sale or Purchase of Business Group Meeting with Ken Kirschenbaum
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Private Meeting Schedule:
Tuesday, March 28 at 11:00am-11:30am- Booked
Tuesday, March 28 at 11:30am-12:00pm- Open
Tuesday, March 28 at 1:00pm-1:30pm- Open
Tuesday, March 28 at 1:30pm-2:00pm- Open
Wednesday, March 29 at 11:00am-11:30am- Booked
Wednesday, March 29 at 11:30am- 12:00pm- Open
Wednesday, March 29 at 12:00pm-12:30pm- Booked
Wednesday, March 29 at 1:00pm-1:30pm- Booked
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Will contracts shield liability if using wrong panel is gross negligence
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Ken,
Hypothetical discussion I had recently regarding exculpatory clauses/limits of liability. Someone I know installs smoke detectors on burglar alarm panels in commercial buildings. We all know that's against code, which is not the item for debate. This person said that they don't worry about the liability risks related to that practice because of their limited liability clause in their agreement and the commonly used $250 maximum liability.
We all know those items are often thrown out by judges, especially in the case of gross negligence.
Here is where the discussion/question comes in: let's say that the same person included a statement on their proposal stating that the installed smoke detector was not installed to meet any code requirement or provide any expectation of life safety. Then had the customer sign to acknowledge that as a condition of the installation.
Would that provide any protection to the installer in the event of a loss? How would that compare to the standard liability limits that everyone includes?
Name withheld
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Response
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What your question really suggests to me is that you and the dummy friend of yours doesn’t read articles on this forum and doesn’t use updated Standard Form Agreements. Too bad.
Let’s get a few things clear up front. Properly worded exculpatory clauses and limitation of liability clauses will be enforced for breach of contract and ordinary negligence. A recent change to the Standard Form Agreement added a provision to the Limitation of Liability limiting damages for gross negligence and willful misconduct to the alarm company’s insurance coverage. It remains to be seen if this will be enforced in all jurisdictions.
Next, the Fire All in One for commercial fire alarms clearly distinguishes between code and non-code compliance, recommending the former. So does the Residential All in One. Finally, I constantly remind alarm dealers to use the Disclaimer Notice with sales because that is the extra acknowledgment you seem to think important, and it is.
Your buddy who installs non-code systems should be using the Standard Form Agreements and keep them up to date.
Deviation from code, custom and practice and suggested manufacturer recommendations is certainly risky, though it is not likely to create liability absolutely. The wrong panel would still have to be the reason the alarm didn’t operate properly for there to be liability for negligence. Of course if you know or believe the wrong panel won’t work properly then it could be reckless to use that panel for non-approved systems. Reckless could be viewed as gross negligence or willful misconduct and such finding will result in the exculpatory clause and limitation of liability clause not being enforced. As mentioned above, you might have a chance if you have the updated Standard Form Agreements with the limitation of liability latest wording.
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STANDARD FORM AGREEMENTS: To order up to date Standard Form Alarm / Security / Fire and related Agreements click here: www.alarmcontracts.com
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CONCIERGE LAWYER SERVICE PROGRAM FOR THE ALARM INDUSTRY - You can check out the program and sign up here: https://www.kirschenbaumesq.com/page/concierge 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
ken@kirschenbaumesq.com
www.KirschenbaumEsq.com
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