KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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Comment on fire death case / AT&T changing terms by notice
April 10, 2021
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Comment on fire death case from March 26, 2021 article
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Ken,
I'm surprised that neither you nor the courts touched on what I find to be the most notable part of the entire case you gave the link to. At the bottom of page 2 and very top of page 3 (yes, I read the whole thing) it states that Spectrum / Time Warner Cable "TWC" had received low battery signals from the detector in the summer of 2017 and had notified the customer of those signals. They had also scheduled a service call for July 16th 2017 and the customer cancelled the service call. Spectrum / TWC had even sent out batteries for the detector but there is no evidence that the customer ever replaced the batteries because the detector continued to send the low battery signals.
So, when exactly does "the customer wouldn't let Spectrum fix the issue with the detector and refused to fix it themselves even when Spectrum provided the batteries" come into effect? It sounds to me like the complainant caused their own death by being more than double the standard for level of impairment because of alcohol AND failing to replace a low battery in their own smoke detector and should be liable for all of the court costs as well.
Dave Watkins
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Response
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You are correct that in this case the facts likely supported dismissal because the alarm company did nothing wrong. But alarm defense cases often turn on the law rather than the facts and when a motion for summary judgment is made, before a trial, the facts are always viewed most favorably in support of the non-moving party, in this case, the Plaintiff. In this case the judge went through all the issues but eventually enforced the contractual exculpatory clause as a matter of law.
Judges don't like enforcing the exculpatory clause so instead of simply writing a decision that was one paragraph that enforced the provision the judge explored all other issues maybe to justify enforcing the exculpatory clause or maybe just to make himself feel better.
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AT&T changing terms by notice
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Ken
Thanks for all you do for our industry. I received this postcard from AT&T for my home internet service. It seemed weird that they want to bind me to these changes and deem my contract with them changed by saying my continuing to pay my bill will serve as acceptance to changes in their terms. They also want me to accept arbitration and give up my right to join a class action suit against them, acceptance all based on me continuing to pay my bill.
I know you have always said the subscriber continuing to pay their bill does not constitute acceptance of a contract. Maybe I am foggy on this but it sure seems a postcard sent to the subscriber for renewals would be easier.
Your thoughts.
Mike
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Response
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Well let's start with the obvious, you're not AT&T. I'm sure they have high priced lawyers figuring it all out. Alas, the alarm industry is getting its advice from me [at least the smart ones], an old country lawyer. In my humble opinion even AT&T cannot change its terms of service by simply sending out a notice, at least not for any meaningful provision. But AT&T is quite different than alarm companies because it is governed by regulatory tariffs, essentially laws it must adhere to. Tariffs are changed from time to time and AT&T may or may not be required to send out notice of proposed or approved changes. The tariff may specify the form of the notice. If AT&T is not governed by tariff, or if this isn't a tariff change, there is no way that AT&T can change its terms to include arbitration. That change may be enforced in some jurisdictions, but not all, where specific provisions and notice of the provision are required.
I don't know about AT&T, but you are in the alarm business and you rely on "protective" provisions found in the Kirschenbaum Contracts ™ and there is no way I would be comfortable advising you that the provisions would be enforced if you tried to add them by some letter or postcard telling your subscribers that once they make a payment the provision would be deemed added to the contract terms. Good luck trying to prove the customer even saw let alone read the notice before making a payment.
Too many of you still don't realize the importance of your contracts. Some of you don't wake up until it's time to sell and then I hear all kinds of regret or lame excuses along with an acceptance that the purchase price offer is one third or half what you hoped it would be. Do you think a buyer wants to inherit your out of date contracts that increase risk? The answer is no and that's why the purchase price is reduced. You think a central station with any brains wants to monitor your accounts when you don't use proper contracts? You think an insurance company wants to insure you when it can't rely on contractual defenses?
Tell me again, why aren't you updating your contracts today at www.alarmcontracts.com?
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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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