KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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When your subscriber is not cooperating and allowing you to service or monitor
June 25, 2024
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When your subscriber is not cooperating and allowing you to service or monitor
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Ken
I just ran into an extremely unusual issue:
We received (via radio) an AC fail – contacted an RP at home and manager stated ‘we are out of the building’.
Not any notification from management the building was going to be sold by them.
We attempted multiple times to get into the facility to replace batteries and was refused.
Only after I saw I could no longer get a response to ‘pinging’ the radio did I get involved and informed management “you realize your ability to have insurance is predicated upon having a functional fire alarm system OR a fire watch being in place with a real live person outside the building – key holders were now out of town).
Per NFPA-72 we advised the Fire Marshal’s office we were no longer monitoring the facility and we began the process to cancel the UL certificate.
Management finally arrived late Saturday and we responded – replacing the batteries (main facility power was still off)
The above is the back story – here is the multi-faceted quandary:
We attempted to again respond to the facility to replace batteries – however, were informed by management ‘building HAS been sold and we no longer have keys and locks have been changed’.
I successfully negotiated a new agreement with the new ownership and submitted to them a contract – AWAITING FOR RETURNED SIGNED COPY (so, in essence, really don’t in my mind despite them emailing they will sign the agreement upon receipt and return back to me).
New ownership states they are NOT YET THE NEW OWNERS UNTIL TOMORROW!
Low battery signals being received and as such re-notified original ownership who again stated they have no keys as the building has been sold (HUH?).
AND THE BEST PART, to make the Father’s Day weekend celebration a total waste as I’m being on needles and pins – P&L had been informed by original ownership to turn off the power effective 06/17 – a day early of the supposed ‘closing’ of the sale. HOWEVER, P&L ‘jumped the gun’ and turned off power on 06/09.
SO – my question is – IF THERE IS AN ‘OOPS’ and per Murphy’s Law, THERE ARE ALWAYS ‘OOPS’ – when the dust is settled – I am going to ASSUME (and we all know what THAT acronym means) the following people will be sued:
My company – despite all that we attempted to do to mitigate the issues to prevent any ‘oops’.
The old owner – for not allowing my techs access
The new owner – (hey, what the heck, why not as they won’t want to now purchase the building)
P&L – and I HOPE that they have a recording of old ownership stating EXACTLY WHEN to disconnect power to the building
P&L – and I HOPE that they have recordings of the multiple times management attempted to have them restore power
The old insurance carrier as they won’t want to pay out for a claim due to old ownership ‘abandoning’ the building and thus vacant building – which I found out this weekend from my insurance broker that if a building is vacant, the insurance company MUST be notified as there is a different rate if the insurance carrier will even provide coverage! (WOW!! – EVERYONE TAKE NOTICE OF THIS ONE!!! Reminds me of another JoeStory about a farmer’s building that was vacant, lightning strike caused fire and insurance company denied coverage!)
So KEN – Besides breaking into the building and risk becoming a FELON to replace the batteries….. how can my personnel protect people and property who don’t want to be protected?
OR, as a dear friend noted – Joe, America is (for now) a free country! People are free to make stupid decisions that end up being stupid mistakes!
Respectfully,
Joseph (Joe) Pfefer, President & Founder
Jade Alarm Co.
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Response
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Going on 60 years in business and this is first time something like this happened to you? Just today I had to write to a fire alarm subscriber’s attorney that monitoring was going to be, or was, terminated and the Fire Marshal notified, for non-payment because subscriber and fire alarm company have a dispute regarding the installation. I told the attorney the subscriber could not just allow the building to go unprotected and then expect to sue for damages if the building did have a fire.
Your duty is to comply with NFPA and the Fire Marshal regarding notice of termination of monitoring, and to follow what your contract with the subscriber requires. You obviously can’t monitoring when electric power is shut; you don’t have to – and should not – monitoring for a new owner who has not signed your contract. And I mean signed, not promised to sign; signed. No service without a contract, period.
No doubt you have extended yourself for this subscriber, but as laudable as that may seem to you, it exposes you beyond the protection afforded by the alarm contract, depending on what you do.
You should not have told management that they risked their insurance if the fire alarm was not monitored. First you don’t know that; they may not have insurance and if they do you don’t know any conditions of coverage. Even if you’re correct, and of course you are, you don’t have to tell the subscriber this; you’re not the attorney or advisor or law enforcement.
It’s not that uncommon for alarm companies to find out their customer sold the building without bothering to tell the alarm company. It’s typically a mess and too many alarm companies continue to service the new owner without getting a contract signed. Not only does that leave you open to exposure for risk of loss, but the interaction with the new owner may prevent you from pursuing a breach of contract against your customer, the old owner who did sign your contract and is now in breach.
You are also right about the possibility of being sued, you and everyone else. It’s easy enough to name everyone and sort it out later. Unfortunately all kinds of costs are involved when you have to defend even a frivolous lawsuit.
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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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