KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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Comment on Should we limit invoking the protective provisions / financial webinar tomorrow - see below
September 16, 2020
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Webinar tomorrow: How to Finance an Acquisition 
Register: https://attendee.gotowebinar.com/register/4228983813536754190    ************************
Comment on Should we limit invoking the protective provisions from article on August 25, 2020
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Ken,
            In my role as the claims manager for Security America I always consider all aspects of each claim before deciding on the defense strategy.  Before invoking the protective provisions what always comes first and foremost is the consideration of the facts and if the facts even rise to the level of needing any or all of the protective provisions.
            For example, the alarm company may not have any liability whatsoever and a dismissal from the plaintiff may occur with one phone call or letter, because plaintiff used a shotgun when naming defendants. Or one phone call and handing over signal activity records that show our insured did everything it was contracted to do.
            In my role I am also cognizant of the duty to maintain the validity of the contract provisions and not abuse them. It is bad enough when other insurance companies such as The Hartford (who also has an alarm program) tries and defeat our closely held provisions in subrogation actions.
            In my estimation, if the claim is not 6 digits or more I use the provisions as a last resort.  Also, I never use the provisions like a shotgun blast. Each one has a time and a place in a logical order.
            Finally, if not used correctly or with deference you might start an ugly fight in your State legislature to remove the provisions. I never pull the provisions on a customer because back in the 1980's an alarm company did just that to a residential customer in Westchester County, NY. The customer got so enraged when the alarm company said, "go ahead, try and sue me, you signed a contract so here take your $250 now and leave me alone". That consumer went to their State Assembly Member and started a 10 year plus battle to invalidate our exculpatory provisions.
            Ken, I will let you explain what would happen to alarm companies that can't buy insurance in a State like NY because underwriters won't offer it or alarm companies can’t afford it. Also, what happens in one state usually snowballs into other States.
Bart A. Didden, Executive Claims Manager
Security America Reassurance Group, Inc. - SARG
877-872-1266
bdidden@securityamericarrg.com
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Response
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            Well said, particularly “Also, I never use the provisions like a shotgun blast. Each one has a time and a place in a logical order.”  Defense attorneys assigned by your carrier, other than Security America, don’t understand or appreciate this, and it’s crucial because the “protective provisions” are really finely tuned legal provisions that need to be used surgically, just enough to accomplish what you’re trying to do; in this case, get out of any responsibility for a claim.
            The protective provisions are under constant scrutiny from lawmakers and courts.  Egregious facts make for bad law.  What that means that where the facts are terrible enough a court may find reasons not to enforce one or more provisions.  In the next case where the facts are quite as terrible the court relies on the first court to invalidate the provisions.  As the facts start to become routine the judges get use to avoiding the provisions.  We don’t want that, I assure you.  The alarm industry and everyone involved with the alarm industry would all have to raise their rates and prices because of the increase in exposure.
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WEBINAR SCHEDULE AND REGISTRATION
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Webinar Series: Financing for the alarm industry 
When: September 17, 2020 12 PM ET half hour presentation and then Q&A
Topic DetailsHow to Finance an Acquisition - A more specific drill-down on this method of growing by purchasing the accounts of another alarm company
Presented by: Jim Wooster and Jim Wooster Jr. Alarm Financial Services, Inc  866-204-9350 ext 1200 www.alarmfunding.com
Hosted by: Ken Kirschenbaum
Who should attend: company owners and CFOs
Registerhttps://attendee.gotowebinar.com/register/4228983813536754190
This webinar will be recorded and available at https://www.kirschenbaumesq.com/page/alarm-webinars
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Webinar Series: Financing for the alarm industry 
When: September 22, 2020 12 PM ET half hour presentation and then Q&A
Topic Details: How to Finance Organic Growth - A more specific drill-down on the many ways loan financing can help an alarm dealer grown organically through covering creation costs, enabling leasing, expansion, etc.
Presented by: Jim Wooster and Jim Wooster Jr. Alarm Financial Services, Inc  866-204-9350 ext 1200 www.alarmfunding.com
Hosted by: Ken Kirschenbaum
Who should attend: company owners and CFOs
Registerhttps://attendee.gotowebinar.com/register/3255545487536556558
This webinar will be recorded and available at https://www.kirschenbaumesq.com/page/alarm-webinars
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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