January 11, 2012

 

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Comments and questions

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Ken,

If the jewelry store claims that there is no signed contract and using that as a basis for claiming there is no liability limit. Couldn't it be argued that since there is no contract, there is no liability.

Rick Lichty

Operations Supervisor- Savannah

Stanley Convergent Security Solutions

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Ken:

In regards to the alleged forgery ADT case. How would an E-signed document hold up? These hosted sites first create an invite with a website address and password to view the documents and of course finally accept. Further an "I read all" statement has to also be accepted.

This method of acceptance I believe would be hard to cry foul?

Do you agree? I suppose someone could state that the party signing was not an authorized agent to accept the agreement .

Keith Fisher

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Ken

With the event and ease of camera phones, I have started taking pictures of all my contracts (change orders, etc.) and e-maiing them to my Office Manager and the client and asking for a confirmation response to that e-mail for verification. If the client responds to the e-mail, wouldn't it make it more difficult to later bring up issues? It is another level of verification/acceptance to the contract? (I did it simply as an easy way for documentation-but this now adds another level.) Remember, no matter what we do, they (their attorneys) will always try to rip our contracts apart. I have had it happen in the clearest cut of cases.

I like the idea of the DL, just take a photo of it with your camera, say it is company policy (you make company policy what ever you want!). Include them in the picture with the contract and license if you can, make it a happy event! Use if for PR if you want, there are easy and great ways to sell them on the idea.

Larry Heuvelman, CR, CGR, ROI, President

OneHomeCinema

Antioch, IL

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Ken It is a great idea on getting a copy of driver's license and business card at the signing of a contract. It is very simple with today's smart phones. I still don't see how this will prevent the claim that the contract signature was forged or that the person is authored to execute a contact for the company unless you take a picture of them signing the contract!!!!! It looks like dishonest people know every trick to try to avoid paying there bills. We just have to be one step ahead of them.

Michael Zemeirng

FM Systems, Inc.

President MBFAA

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Ken

So if it is proved a forgery, can you be sued for monitoring, what proof is their that ADT is monitoring that system if they don't have a contract?

Todd Privette

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Hi Ken,

If the jewelry store claims that the contract was invalid due to a forgery, why would they have any grounds to sue for $2M? If there is no legal contract between the two parties (as a result of the forgery claim), and ADT did not rob the store, then why would they have standing?

Do you sue a lock manufacturer or locksmith when someone breaks into your house by breaking the door down? These plaintiffs are trying to have it both ways. Is it the insurance company lawyers who come up with this BS?

I think the best phrase you have is: 'An alarm company is not an insurance company'.

Regards,

Dave Siegel

DHS Associates

Los Angeles

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Ken

There is line on the Standard Form Contract where the customer enters SSN or EIN. If signature was forged, where would you get the number from? The number (in my opinion) has to be as good as witness to prove authenticity of the signature. What else can we do? Put customer's fingerprint on the form? People sign documents all the time and notary stamp seems kind of obsolete. Stamps can be made at home using stamp kit and printer. I can never find notary when I need one. Nobody want to be bothered for a dollar and it may cost you $100 in parking ticket if your meter expires while you wait in some real estate office for notary.

Dusan

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Response

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Good points. Apparently there is no question that ADT is providing the monitoring. That should be simple enough to establish. Once monitoring is provided ADT has a duty to the subscriber, and perhaps others, to perform in a reasonable manner; in other words, not be negligent in its performance.

Establishing the contract is another matter. The subscriber can claim that it knew ADT was monitoring, but didn't know anything about a written contract, especially one with loads of protective provisions.

The above suggestions all help establish the identity of the person signing the contract. Inserting personal information, taking a photo of the contract signing [may as well create a video], having a witness, etc., all help establish the bona fide of the contract.

No matter how the case ends up, I think the lesson here is that you do need to be diligent in the execution of your contracts. The contracts are your most important asset. You don't need them being challenged as forgeries.

 

Here is the original article

 

ADT sued - forgery claimed

 

December 29, 2011

 

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Question

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Ken

As reported in the NY Post on Dec 2, 2011, a Manhattan jewelry store has sued ADT for a burglary loss in excess of 2 million dollars. The store owner claims that the ADT contract, with limited liability clause of $1000, was forged.

There are two interesting factors here. The first is ADT limitation of liability being $1,000.00 dollars instead of $250.00 dollars and second, the claim of a forged signature. Maybe it is time for an additional signature on the contract for a 'Witness' to avoid a claim of forgery that is now seeming to become more prevalent with regards to these matters of limitation of liability. A forgery claim can hold up a lawsuit and make it very expensive to defend. What do you think?

Stu Gilbert

Superior Protection Services

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Answer

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There are often many issues to deal with in an alarm defense case, and a forged contract certainly adds to the mix complicating the defense. Many issues raised in an alarm defense case are legal issues dealing with the enforcement of contract provisions. This is an issue for the Judge and can be addressed in motions [the famous motion for summary judgment]. If there is an issue of whether the subscriber signed the contract then obviously any legal issues regarding the enforcement of the contract terms are going to have to wait. Since a forgery issue is an "issue of fact" [not law] it will have to be decided by the trier of fact [a jury or a judge sitting without a jury] and that can happen only after a trial. Most likely a judge isn't going to permit a limited trial on the issue of forgery only, so that issue will have to wait for the full trial. Not being able to dispose of a case early in the proceeding by motion for summary judgment not only increases defense costs significantly but increases the risk of losing the case, at least on the trial court level.

Because my office has a large alarm collection and defense practice we've seen cases with all kinds of defenses and issues. Forgery claims are not uncommon. You may ask, well the equipment was installed; or invoices were sent and paid. Doesn't that prove that the alarm contract was signed? No, not necessarily. The subscriber [or its management or home office] could be unaware of any written contract and assumed the system was installed without contract and that there is no contract for the continued service.

Your suggestion that the subscriber signature be "witnessed" is a good one, although not always practical. There isn't always a witness around. Also, adding a "witness" signature line may cause lots of confusion. Both alarm companies and subscribers may think that a witness is required, and witnesses may be reluctant to sign because they think it exposes them to liability, like a guarantee [which it doesn't].

Requiring a notary public acknowledgment is another way [the best way] to ensure the authenticity of the signature on the contract. But notaries aren't usually around when you need them.

One relatively easy fix is for you to get a photo copy of a driver's license of the person signing. For corporate signers ask for a business card and a driver's license.