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QUESTION: LEGAL FEES
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Ken
I have a question regarding the Commercial All in One. I have a client requesting to amend section 25 regarding legal action. Now the provision provides for us to recover legal fees. They want to change it so that they too can recover legal fees if they prevail or they want to remove the legal fee provisions entirely. I know its not recommended, bu twhat would you suggest?
name withheld
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RESPONSE
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There are many provisions in the Standard Form Agreements that I would characterize as "business" decision items. The legal fee provision is one of them. Other examples would be hours of operation for repair service, charges, term of agreement, renewal terms. Generally legal fees are not recoverable in a breach of contract action unless there is a specific statute premitting legal fees or the contract provides for legal fees. Since there are no statutes that provide for legal fee recovery in alarm cases, we provide for legal fees in the contract. Parties are usually free to make their own bargain and then reduce it to writing. So if the agreement says one party can recover its legal fees that will be the deal. Some states have consumer laws that provide that if one party can recover its legal fees then the consumer can also recover its legal fees, even if not provided in the contract. That mutuality isn't generally found to apply to commercial parties.
Recovering your legal fees is a business decision you make. It's not likely an item that makes or breaks a deal. While some legal fees can certainly be high or staggering, those fees will usually be incurred in defense cases. Giving up legal fees in your contract will have more impact on your E&O carries since it won't be able to recover legal fees if it prevails in the defense action.
Whether you prefer making the legal recovery provision mutual or omitting it entirely is your decision and something to be negotiate with the subscriber. You may want to question a subscriber who focuses on the legal provision, asking if it is thinking of defaulting or getting into a lawsuit even before the relationship begins.
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YARD SIGNS AND DECALS
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Ken
Love your stuff. "Protected by" usually works. It has for me for almost 40 yrs Thanks
Dan
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Aloha Ken,
I heard a few years ago a guy who had too much to drink, fell on a yard sign. (I think he lived but lost a lung). His lawyer sued the homeowner and alarm company because the top post was missing a rubber cap. If this is true and not urban legend, this is yet another way a yard sign could be a liability.
Keep up the great work!
Aloha
Tim the alarm guy
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Ken
What about "Verified response system?"
Anonymous
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Ken,
In the July 31, 2015 newsletter you have a segment on Can Yard sign or decal create liability.
This has caused us in our office to question our signs and business cards. Please share your thoughts with us on the verbiage that we have on them: "24 hour protection provided by ..."
After reading the new letter we are wondering if we need or you would suggest we change them.
We greatly value your input and appreciate your newsletter.
Sincerely,
J
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RESPONSE
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"Protected by" "24 hour protection" "secured by" "under surveillance" "alarm services provided by ..." are all common and acceptable wording for signs and decals. None of these could reasonably create a sense of security that would give rise to liability. That doesn't mean you can't get sued, or even lose a case. I don't think you are required to have such disclaimers that convey the message that there is no security or protection. I am thinking of the ridiculus ads we see on TV for drugs where the disclaimers are longer than the benefits of the product. I don't think we are there yet, though I am sure there are plenty of lawyers out there that would suggest the disclaimers.
As for the unprotected stake, that is a great example of what alarm companies should be liable for. Though the exculpatory clause and limitation of liabilty provision can be and have been applied to non alarm incident losses, there really is no reason an alarm company shouldn't be responsible for the same kind of damages any contractor would face when entering upon and working on premises. So if your service man drops a hammer on a glass coffee table don't you think it appropriate that you pay for it? Do you really think that's a good time to pull out the contract and point to the exculpatory clause?
A stake without a protective top could easily cause injury. Whether it is foreseeable that someone may fall on the stake is a question a jury has to decide. Think you should be liable for piercing a sprinkler line in my grass when banging in the yard stake? I do. But I'm a consumer.
This topic actually reminded me of another issue regarding yard signs and decals. For some reason we removed a provision in the standard form agreements that yard signs and decals remained the property of the alarm company to be removed when the contract expired. I am going to restore that provision in the 2016 Standard Form Agreements edition.
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