KEN KIRSCHENBAUM, ESQ ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE You can read all of our articles on our website. Having trouble getting our emails? Change your spam controls and whitelist ken@kirschenbaumesq.com ****************************** Who are you contracting with, agent or principal / webinar registration - Miami building collapse case July 23, 2022 *********************** ONLY 4 DAYS LEFT TO REGISTER. ONLY THOSE IN ALARM INDUSTRY WILL BE PERMITTED TO ATTEND THIS WEBINAR Announcing webinar on the Miami building collapse case presented by the fire alarm expert who installed and serviced the fire alarm and evac system. If you do fire alarms you don’t want to miss this webinar. Register today. ********* Webinar:Champlain Towers South building collapse / alarm and security issues When: July 26, 2022 12PM ET Topic: Hear from the fire alarm expert who serviced the fire alarm system and was intimately involved in the litigation involving Securitas Security. Some information that you should be aware of before the presentation: Florida requires a voice evacuation system that provides speakers in every apartment so there can be floor by floor or building wide communication to evacuate. This fire alarm system had that system and it was working. Securitas provided security guards stationed at the building. When the first fire alarm signal came into the security desk the guard did not determine the cause of the fire alarm or the zone, and did not utilize the evacuation system to alert residents. Securitas has settled the Plaintiffs case paying over half of the almost one billion dollar settlement. Presented by: Matt Haiman, Premier Alarm Systems – the fire alarm company for Champlain Towers South. There will be ample opportunity for Q&A. Hosted by: Ken Kirschenbaum,Esq Who should attend: Alarm owners installing and servicing fire alarm systems Register: https://attendee.gotowebinar.com/register/6851622525896222987 ************************** Who are you contracting with, agent or principal ************************** An issue arises with your customer / subscriber. It could be that you haven’t been paid for the installation, the subscriber stops paying the RMR charges or the subscriber suffered a loss and is suing you. Certainly one of the first questions you’re going to have to determine is, do you have a contract? You would hope that it’s with the customer, but is it? Who are you in contract with when the contract is between you and: * ABC Property Management Co * XYZ General Contractors * HOA or Condo Board on behalf of owners * Tenant on behalf of owner * owner on behalf of tenant All of these are examples of doing business with an agent, not directly with the principal. Sometimes you know who the principal is; sometimes you don’t. When the dispute arises who are you going to pursue and who can you expect to come after you? In order to have a breach of contract claim you have to have standing. Standing is a legal term. A Federal case in California addressed this issue: “A plaintiff seeking to demonstrate standing bears the burden of proof to establish standing “with the manner and degree of evidence required at the successive stages of litigation.” (noting that in responding to a motion for summary judgment, “the plaintiff can no longer rest on . . . mere allegations, but must set forth by affidavit or other evidence specific facts, which for purposes of the summary judgment motion will be taken to be true”)).” “As an initial matter, only the real party in interest has standing to sue under the substantive law. Under California law, someone who is not a party to a contract has no standing to enforce the contract. These rules extend to third parties who are agents of a party to a contract. “[A]n agent for a party to a contract not made with or in the name of the agent is not a real party in interest with standing to sue on the contract.” (“Nor does an agent ordinarily have a cause of action based upon some third person's violation of its principal's rights. Without some breach of a duty owed to him, it has no power to sue on the principal's claim.”).” You fully understand the issue you have to understand the relationship between agent and principal, and your relationship to both. “Agency is the fiduciary relationship that arises when one person (a ‘principal') manifests assent to another person (an ‘agent') that the agent shall act on the principal's behalf and subject to the principal's control, and the agent manifests assent or otherwise consents so to act.” “[Ostensible authority arises as a result of conduct of the principal which cause[s] the third party reasonably to believe that the agent possesses the authority to act on the principal's behalf.” “An agent's authority may be implied from the circumstances of a particular case and may be proved by circumstantial evidence.” “However, unless only one conclusion may be drawn, existence of an agency and the extent of an agent's authority is a question of fact and should not be decided on summary judgment.” [citations omitted] In the case from which the above quotes are taken, Medawar v. Otis Elevator Co. 2:20-cv-05155-MEMF(Ex) (C.D. Cal. Jul. 12, 2022), a husband and wife formed a construction company who contracted with Otis Elevator for an elevator in their residence under construction. Long story made short, dispute broke out and the husband sued Otis. One defense, and only one of the issues, was whether the husband could sue because he wasn’t a party to the Otis contract. It’s the discussion on the issue that’s of interest, not how the court failed to make any determination on the issue. Point is, if you contract with ABC Management Co and you know it’s for 123 Realty Corp [who owns the property], your real customer is the realty corp, not the agent. The agent isn’t your customer unless the contract specifically states that or the principal is undisclosed so that you didn’t know you were dealing with an agent. One other twist is when the agent discloses the principal, but the principal doesn’t really exist. We get this all the time in collection cases when we go after Joe Smith personally. He will claim that he signed for his corporation, Joes Restaurant. Problem for him is that Joes Restaurant doesn’t exist; his restaurant is owned by Josephs Best Food Ever Corp, so when he signed the contract the principal wasn’t disclosed. *********************** To order up to date Standard Form Alarm / Security / Fire and related Agreements click here: www.alarmcontracts.com *************************** 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. *********************** ALARM ARTICLES: You can always read our Articles on our website at ww.kirschenbaumesq.com/page/alarm-articles updated daily ******************** THE ALARM EXCHANGE - the alarm industries leading classified and business exchange - updated daily ************************* Wondering how much your alarm company is worth? Click here: https://www.kirschenbaumesq.com/page/what-is-my-alarm-company-worth ****************************** Getting on our Email List / Email Articles archived: Many of you are forwarding these emails to friends or asking that others be added to the list. Sign up for our daily newsletter here: Sign Up. You can read articles and order alarm contracts on our web site www.alarmcontracts.com ************************** 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
