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liability concerns for virus and insurance coverage / Commercial All in One updated

May 25, 2020
liability concerns for virus and insurance coverage
            With “Communicable Disease and Infectious Agent aka Virus Liability exclusions” coming into the liability insurance market please consider modifying your Standard All in One and other contracts that incorporates protective povisions exclusing liability for virus, etc.   This is especially important for companies that will be performing installation, sale, service, repair of thermal imaging technology. 
            Once the Communicable Disease and Infectious Agent [CDIA] exclusions enter the market, I don’t see any insurance company in the country offering coverage without an exclusion; it could be a very long time before a secondary market develops if at all.
  Stay Safe,
Mike Lehner
            Thanks for pushing me into 2020.  Actually two updates are required in the Standard Form Agreements.  The first, recognizing new technology that the alarm industry is now offering; selling and installing, Thermal Imagining Technology.  These devices identify high body temperature, indicating fever [a symptom of the current Covid-19 virus].  These devices can also check for masks and also keep count of people coming and going into and out of a facility.  Obviously these are popular devices in demand.  
            The Commercial All in One has been updated to include these devices.
            The second issue is protective provisions insulating the alarm company from liability for the installation of these devices.  These devices are not FDA approved.  The alarm industry contends that the devices are not intended to be medical grade, not used for medical purposes, treatment and cure and can therefore be sold and installed in non-medical settings.  We have made necessary updates to the Commercial All in One adding protection from liability for the sale and installation of the Thermal Imaging Technology devices.  The updates are now available.
            I should point out that not everyone agrees that FDA approval is not required.  ADT's position is stated on its website, which reads:
            "EST systems are regulated by the FDA.* At ADT Commercial, we are focused on bringing the best, FDA-cleared products to our customers.
    * Devices cleared through the FDA 510(k) process must be used as part of an adjunctive system, whereby cameras are used alongside a primary means of confirming a fever, such as a medical thermometer."
            ADT's website claims that it uses FDA devices that have been cleared through FDA 510(k) process.  
            I'm not technical.  I checked with Sperry West's Barry Levine, who sells these camera devices, and he doesn't think the devices that are "flooding" the market are FDA approved.  There does seem to be an exemption for FDA approval if the equipment is not intended as a medical grade device for the treatment of any illness and does not create an undue risk in light of the public health emergency. 
            The Commercial All in One has been updated with these provisions.

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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