BIG WIN FOR SLOMINS AND INDUSTRY - LONG TIME CASE DISMISSED - STANDARD CONTRACT ENFORCED
I'm excited and pleased to report that a lawsuit I've defended and talked about for 10 years has been dismissed. The matter may not be over yet and I'll get to that below. Anyone who has heard me speak about horror story defense cases has heard about this one.
Home alarm goes off at night; home owner locks her upstairs bedroom door, tries to phone police but phone line is dead, opens her second story bedroom window yells for help, decides to go out window, hangs there for moment and then drops down hurting her back and requiring two surgeries. The Telguard system sounded the keypad when the cable VoIP line went out of communication.
The Subscriber had signed 3 separate Standard Form Agreements [this was in 2006, before the All in One Agreements were introduced] for sale/installation, service, monitoring. The Subscriber claimed the alarm company was negligent and that the subscriber had been fraudulently induced to sign the contracts because the disclaimer in the contracts for VoIP was not explained and neither was the operation of the alarm system. What made this case stand out was the tenacious litigation strategy by the Plaintiff's attorneys. Rather than focus on the tenuous facts or legality of the contract issues, they tried to prevail by technical motion after motion challenging the sufficiency of the alarm company's discovery responses, particularly regarding the disclaimers re VoIP and recommendations that POTS lines be used. For example, the attorney demanded to know every alarm publication the client relied on regarding VoIP and POTS. Again, remember this case started in 2006. Once the attorneys found out that the contracts were Kirschenbaum contracts TM they moved to disqualify my firm and me from representing the alarm company in the action, claiming I would be a necessary witness in the case to talk about why I drafted the contract the way that I did.
Each of the bogus motions regarding discovery and to disqualify me had to be vigorously defended and over the 10 year span I can't even remember how many associate attorneys I had working on the case. The Plaintiff's lawyer caused so much work for us that I decided to give him a little more work, so I brought in the cable company and the panel manufacturer as third party defendants. Once they came into the action their insurance defense lawyers went through the usual procedures that insurance defense attorneys do, starting with depositions and discovery. Plaintiff's lawyer had plenty to do. When the dust settled on the discovery, we moved for summary judgment to dismiss the Plaintiff's action, the third party action we commenced and all cross claims.
The decision is worth reading. I get a lot of inquiries regarding whether the Standard Form Agreements holds up. Here's your best answer. The Decision can be read here:
Still to come in the case? Well perhaps an appeal; wouldn't surprise me. But we've asked the insurance carrier who engaged us for permission to sue the Subscriber for the legal fees incurred in defending the action. Still waiting to hear on that. And we still have a collection action against this subscriber which is referred to in the decision. That case had been consolidated with the defense case and will now be separated and continued in a lower court. I'll keep you posted and may discuss the case in greater depth after everyone has had an opportunity to read it.