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comment on training customer and issuing certificates / can sub waive subrogation in New Hampshire and elsewhere June 14, 2018

KEN KIRSCHENBAUM, ESQ 
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE 
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comment on training customer and issuing certificates / can sub waive subrogation in New Hampshire and elsewhere
June 14, 2018 
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comment on training customer and issuing certificates from June 2, 2018 article
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Ken,
               The answer is very simple here.   There is no month to month billing no matter what.   Who is in control here and how desperate is this person for this type of crappy business?   Bill these wise guys semiannual or annually in advance and tell them that is what you are required to do since that is how the central station bills you, period (blame it on others).   
               People who allow their customers to get the upper hand deserve the problems that they allow to be created by them.   If the customer has a problem with this then let them get another stupid firm that will tolerate this crap.   You must start off by training the customer the first time right since you will not get a second chance to do so.   
               As far as the Certificate, provide a letter stating the coverage period for what was paid only addressing it to a specific person at the insurance company (not the agent) as well as the firms name, address and telephone number including the policy number (for future use if necessary like stopping the monitoring notification).   Do not provide a general letter to the customer that they can photo shop and change on their own when need be.   Mail it directly as well to the insurance company.   Do not let the customer bully you that they must get it to forward on. If this Certificate has to be provided every six months or yearly add a fee to the bill to do this.   There should be no need for you to get involved notify the insurance company if you do this right and bill accordingly.   
               Why does everyone think that such added service should be free and lets the customer tells them how to run their business?
Yours truly,
Business 101 aka Mrs Doubtfire
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Response
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               Generally, somewhat good advice, though I think the key is in the delivery; otherwise you may find yourself with no accounts left.  In a business world where the "customer is always right" a business with a rigid business model may have trouble getting and keeping accounts.
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can sub waive subrogation in New Hampshire and elsewhere
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Ken,
               I am no lawyer, obviously.  But while researching my ability to exclude myself (as an Executive Office) from carrying Workers Comp on myself and another officer/LLC Member, I came across a Q/A on the NH State Insurance site that says Waiver of Subrogation is not permitted in NH.  If this is accurate, and safe to assume it is, why does the Residential All-In-One have waiver of subrogation in the contract, in more than one place? 
               I have yet to check the Commercial All-In-One, but await your reply.
               On a different note, WC coverage is quite a strain on this little company of mine.  I currently am on an investing cycle and thus draw very little pay...as I try to grow of course.  It would be very interesting to other small operators that it may be an option to them in their state to forego, or reduce coverage, on themselves as a means to save money.  Why don't you do an article on it?  Counterproductive to SARRG's bottom line?
               I imagine that making a WC claim would be quite challenging if made by the owner of the company to cover substantial medical care, and thus challenged by the insurance company.  If an owner of a very small company has an incident that warrants a claim, and nearly all incidents are required to be reported of course, the loss of the primary worker of the company would be devastating.  I am pretty sure the insurance company would be extremely resistive to the large claim coverage.
               I dated an adjuster once years back.  She was always so proud of the claims she was able save her company.
name withheld
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Response
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               Well, I do agree with you, you're not a lawyer.  But, you are a smart guy.  You use our contracts, ask interesting questions and participate on this forum often, for which I am grateful.  And, by the way, being a lawyer doesn't necessarily mean you'd understand this issue.  Plenty of double digit IQ lawyers out there, though most have moved on to important government jobs.  I had one of my attorneys in our Alarm Department research the issue.  Here is Alison Gallub's research:
               Yes as to Workers’ Compensation.  Waiver of subrogation is prohibited as to Workers’ Compensation under the Labor Law N.H. Rev. Stat. Ann. § 281-A:13 which expressly prohibits waiver:
"VI. Any provision in any agreement which requires employers or the employer's insurance carrier to waive any rights of subrogation granted pursuant to this chapter is hereby prohibited."
               In general, waiver of subrogation clauses are held to be valid. The Supreme Court of New Hampshire upheld waiver of subrogation provisions in construction contract where contract provided that waiver of subrogation was effective as to person or entity even where person or entity would otherwise have had a duty of indemnification, contractual or otherwise. Chadwick v. CSI, Ltd., 137 N.H. 515, 629 A.2d 820 (1993).

               The Standard All in One Agreements do contain waiver of subrogation provisions.  It's an important provision, often the most important provision.  I was consulted on a claim received by an insurance company. The claimant was another insurance company and they were fishing for information on the sequence of events of the loss, which they attributed to the failure of the alarm system and services. The insurance carrier who received the claim, and who contacted me, didn't know how to respond to the request for information.  Actually there is an art to responding to these inquiries.  You don't want to encourage a lawsuit and you don't want to give away the kitchen sink, but you need to be honest and forthcoming.  In this particular situation I counseled the carrier calling me to simply say, "why do you need to know any of the facts you are asking about?  All you need to know is that here is the alarm contract and the waiver of subrogation is in paragraph xx; have a nice day".  Within a week of sending that response the carrier looking to make the claim notified that it was closing its file. 
               The waiver of subrogation clause is one of the oldest protective clauses, probably outdating the exculpatory and limitation of liability provisions.  The waiver has been enforced for hundreds of years, long before anyone conceived of an electronic alarm system or the Standard Form Kirschenbaum TMAgreements.  So what this means is that although we see challenges to the other protective provisions in the alarm contract, the waiver of subrogation is so well accepted it is rarely challenged.  Case closed. That's why it's in the Standard Form Agreements.
               The waiver of subrogation in the Standard Form Agreement is not, however, referring to the Workers Comp policy.  It refers to the general liability policy and your subscriber's casualty or fire policy.  
               Workers Comp is statutory; it's required in every state.  Its benefits are also dictated by statute.  It applies to workers hurt while on the job.  
               Some states don't require a single owned business to carry workers comp because in many states the owner of the company doesn't have to be included in the Workers Comp coverage.  That will keep the premium lower since the premium is based on payroll and workers. But owners can include themselves in the WC policy [not sure if that applies in all states - insurance brokers can help us out here, and I invite you to do so] and if owners are in the field it's probably a good idea.  If you do subcontracting work the company hiring you is going to want you covered by your own WC policy so you don't end up increasing its premium.  If you do hurt on the job you may need to look to the WC policy as your primary coverage, and if you don't have it, you could be out of luck and out of pocket.  
               The statute you mention refers to WC only.  By the way, your jab regarding me not criticizing SARRG is not fair.  If it does something wrong that I know of I'll be first to report it.  You see me criticizing other carriers because they screw up and rub me the wrong way. I haven't had that experience with SARRG, and neither should you or anyone else; not while Bart Didden is its Claims Administrator anyway. [and that’s because he’s smart enough to engage me, at least that’s part of the reason] 
 
 
 
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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