October 20, 2011

 

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Questions

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Ken:

We enjoy your newsletter and have a question that I am sure others may be interested in your opinion. Does a subscriber have the right to request Activity Reports of events on his own account from his alarm company? Does the alarm company have to provide it? The situation- A subscriber was Burglarized and the Alarm Panel was destroyed during the break-in. The subscriber was not notified of the break-in. Police did not respond and claim they were not contacted. The subscriber requested an activity report for the week up to and including the date/time of the burglary. The Alarm company refused to provide the report to the subscriber unless a subpoena was issued- which actually forces the subscriber to commence a lawsuit.

Thanks,

Elie Ribacoff

Worldwide Security Network

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Dear Ken:

I have a question. We have a customer that had an alarm come into our central. We called the police and told them the burglar alarm was at 555 Huss Ave. The police dispatcher thought we had said 555 Hough Ave. and sent the police to the wrong house. Contents of the house were stolen and the interior was vandalized. The customer asked the police for the recording of the phone call. The police said that they don’t have it. We do have the phone call recorded. It does sound like our monitor said Huss".

Should, we give a copy of the recording to the customer?

Sincerely

Mike

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Answer

 

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A few preliminary issues first. There is no question that the central station owns the Activity Reports and the telephone recordings. If anyone had doubts then the Standard Form Contracts that have monitoring provisions clears it up because the contracts provide that the data and information is the property of the Central station.

The central station's Activity Report is a business record maintained by a private business. The Central station could rightfully refuse to deliver the Activity Report. But, why would it refuse the request? The same applies to the recorded telephone call.

In both questions above there is nothing to suggest that the alarm company did anything wrong. The central should be eager to cooperate so that it can hopefully avoid the matter escalating to litigation.

Before any business record is released however you should contact your insurance company's claims department to report the incident. You have an obligation to report the incident and potential claim as soon as you have a reasonable basis to believe a claim will be made. Waiting for the summons may jeopardize your insurance coverage.

Be very mindful that you may not destroy evidence in your possession that would ordinarily be maintained in your course of business. And, even if it routine for you to re-use tapes or destroy Activity Reports after a number of years, if you know of a potential claim and need for the evidence, you should keep it. Failure to keep that evidence can result in a Court ruling that the evidence, had it been preserved and produced would have been very prejudicial to your position.

Neither the Activity Report or the audio recording are privileged. These records are discoverable. You can be compelled to produce them. If you are a party to the action a discovery notice to produce will suffice. If you're not a party to the action, or if a party makes a pre action motion to obtain discoverable evidence so that a complaint can be drafted, a subpoena will be issued to compel production.

When I have been presented with these kinds of requests I have typically counseled that the information should be produced, often with as much other information and documentation that I can muster to try and convince a party not to pursue a claim against the alarm client.

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Comment on MN case discussed on Sept 22, 2011

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Ken

This case is very interesting to the laymen. Having not fully understood the true meaning of gross negligence until you just "cleared the air" and seeing the multiple interpretations that can exist from state to state, It serves as a solid example of why working without contracts and especially exculpatory clauses is a foolhardy endeavor.

Very informative,

Thank you

RON PETRARCA

Electronix Systems

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Response

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You can read the case at Leading Cases, PA cases http://www.kirschenbaumesq.com/casesbystate.htm

Case is Christine Gage v HSM Electronic Protection Services, Inc., doing business as Stanley

Convergent Security Solutions, Inc http://www.kirschenbaumesq.com/casesbystate.htm