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comment on fire inspection concerns and mistakes in executed contract - technical advice May 25, 2018

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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comment on fire inspection concerns and mistakes in executed  contract - technical advice
May 25, 2018
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comment on fire inspection concerns and mistakes in executed contract from May 15, 2018 article - technical advice
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Ken,
    Incredible that the two topics in the May 15, 2018 articles are linked (fire inspection concerns / comment on mistakes in executed contract). 
    First, Crystal's comments about risk are spot on.  I ask myself daily, what can I do to mitigate risk to my business and ultimately my personal assets.
    Second, you point to the system's inspector about being indemnified with his client?  Can an indemnification clause hold up if it can be proved that you knew what you were doing was wrong and proceeded regardless?  Could you address that question specifically?  If you were representing the sub's client in a civil action against the sub, how would you proceed?
    
Now for the education part (my citations are from NFPA 72, 2013 Edition (a quick check of 2016 Edition show no variance that I can see):

1. Chapter 14 of NFPA 72 is the "Inspection, Testing, and Maintenance" chapter of the Standard.

2. There are two (2) keys tables:

Table 14.3.1 = Visual Inspection. Often, I have seen an inspection company state that their services are "per NFPA 72", but they don't cover the visual inspections that need to occur when they are not part of the actual testing. Nor due they specifically exclude this service aspect. Read Table 14.3.1.17(b) states requirements.  Eyeballs on the device two times per year.  Read for specific visual inspection requirements.

Table 14.4.3.2 = Testing (which clearly states the testing method and frequency) for each type of device and system component.

Table 14.4.3.2(g)(5) calls out the requirements for testing duct smoke detectors and the frequency which is annually.

First line of the testing method takes you to 14.4.3.2(g)(1) which states "...ensure smoke entry in to the sensing chamber and alarm response."  (game show buzzer) Wrong answer (in my opinion) to say "What is a remote test switch?"  I know that virtually all of the duct smoke manufacturer's have a remote test switch, but I don't see how that meets the stated testing method.

The second reference in Table 14.4.3.2(g)(5) is to Table 14.4.3.2(h) which talks about sensitivity testing.  If the system is using addressable duct smoke detectors, no big deal.  If the duct smoke were provided with the HVAC system and if the air handlers have been added/modified over time you could be dealing with different makes/models.  If you can't find a history of sensitivity testing then you will likely need to look at 14.4.4.3. If there are no issues after the first 2 sensitivity tests, then you can go to a five year cycle.  Note that there are record keeping requirements if you extend out to the five year cycle.

The balance of Table 14.4.3.2(g)(5) discusses the the requirement to verify the sampling tubes will "...properly sample the airstream...".  This typically means using a manometer (not something most techs carry in their tool belt or truck).

A few words of consideration:

1. When the air handler can have a range of make-up air based on the controls system, you should verify across that range.  I have personally seen duct smokes fail the testing after more than 30% of make-up air is introduced.

2. If the air handlers are VFD (variable frequency drive), then you may have to test for minimum and maximum drive speed (how much air is being pushed) and you may have to factor the make-up air issue as well.

    Instead of having the end user pay for test switches that don't meet the testing requirements of the Code, maybe they should consider using area detection in lieu of duct smoke detectors (as allowed in the model International Mechanical Code [IMC}).  Beam smoke detectors and air sampling detection are good options for this application.

Final nugget from 2015 IMC:  Think about that one....; and then crack open the HVAC plans, including duct work.
Dave Miller, SET,  Principal
MCG Design Services
503-537-9200
dave@mcg-design.net  

www.mcg-design.net
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Response
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    Thanks for the technical advice.  By the way, Dave Miller [MCG Design Services] is listed on 
The Alarm Exchange in the Technical Support category.  Regarding the legal issues ....
    How to mitigate risk goes hand in hand with creating and preserving equity in your business.  Practices that increase your risk concomitantly reduce the value of your company.  For example, you don't use proper contract you increase your risk and you reduce the value of that contract or account.  You don't perform your inspections properly [according to code] you increase your risks and why would anyone want to pay you top dollar if they figure out the shoddy way you have conducted your business and the potential claims that may arise after the sale?
    Can you protect yourself from liability through indemnity?  You pose a specific level of conduct and want to know if indemnity will be enforced:  "if it can be proved that you knew what you were doing was wrong and proceeded regardless?"
    That's a tough call.  Indemnity, unlike the limitation of liability clause, should be enforced even if the claim is "gross negligence".  Gross negligence is often defined as failure to use even slight care or willful and reckless conduct.  Gross negligence is thus often equated with willful and intentional conduct.  
    I don't think I would like defending an alarm case where the alarm company intentionally did something it knew would or could cause damages.  The line from negligence to gross negligence to willful misconduct is a fine line, difficult to easily define and then apply the facts.  In the end, I don't think that a party guilty of intentional wrongdoing, acting with knowledge and intent that the conduct would or could cause damage, can rely on the indemnity provision to reduce or eliminate risk.  It's far easier to argue that the conduct was not intentional, reckless or willful, and thus seek to enforce the indemnity clause.  If the company [not just a rogue employee intent on committing a crime] plans to set off an alarm, feign guard response and then burglarizes the subscriber's premises, it's not likely that an indemnity provision is going to work.  But that same company, just doing shoddy work, outrageously shoddy work, the indemnity should hold up.  "Indemnity" is of course just one word and the provisions will have to be properly drafted.  If you don't have the 
Standard Form Agreements - updated within past 2 years version, you may not have the best wording.  The indemnity clause, like other provisions in the alarm contracts, undergoes change every once in a while based on cases and laws that come along.  Just like your equipment and services evolve, so do the contract provisions.  Don't shoot the messenger.
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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
516 747 6700
www.KirschenbaumEsq.com