KEN KIRSCHENBAUM, ESQ ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE You can read all of our articles on our website. Having trouble getting our emails? Change your spam controls and white list ken@kirschenbaumesq.com ****************************** Does alarm co waive additional insured after a year / Additional insured demand by subscriber May 26, 2022 ************************ Does alarm co waive additional insured after a year ************************ Ken There is a problem that may be avoided. Assume the subscriber is obligated (by the KK standard service agreement) to have added the dealer as an "additional named insured", and subscriber for whatever reason has failed to do so, and the dealer is aware of this failure…. Would this breach by the subscriber, if known by the dealer for in excess of the modified (say, a period of 1 year time to make claims as has been discussed in this forum) preclude the dealer to claim a breach of the agreement in, say, year 3, after a loss has occurred? Better, perhaps, for the standard service agreement to require the subscriber to provide evidence that they have complied with the requirement to have added dealer as an additional insured only "upon dealer's written request". Likely that the dealer will assume subscriber's compliance, and not so request..... Ignorance could be bliss. Anon in Calif *********************** Response *********************** Ignorance may be bliss, but defending a lawsuit and losing your company won’t make you too happy. My guess is that a small percentage of subscribers actually name their alarm dealer as an additional insured and most alarm companies don’t seek compliance. Changing the contract to make the additional insured procurement optional on request isn’t going to change much; I don’t think it is a necessary change in the contract. Your observation that the one year to bring an action or arbitration [assert a claim] is an interesting connection between the two provisions, insurance procurement clause and the shorting time to commence action provision. To squarely address the question, you won’t be precluded from defaulting the subscriber for failing to name you as an additional insured more than one year after the breach by the subscriber. You would not be commencing an action to enforce a claim; at most you would start a Declaratory Judgment action to declare the subscriber in breach. This is not an academic exercise. There are times you want to declare the subscriber in breach, sometimes just to get out of the contract. The subscriber’s failure to name you as an additional insured is a convenient breach, especially since it is a breach that cannot be cured. I don’t think that knowing about it for over a year will constitute a waiver, but it’s a fair argument. *********************** Additional insured demand by subscriber *********************** Ken, I am using your standard Fire Alarm all in one contract for sprinkler monitoring. It’s a $6k install and $85/mo so the monthly is not that much. The customer is asking that we add them as additionally insured. - This is for install of the sprinkler monitoring system and the ongoing monitoring. The contract has the limitation of liability provisions still intact with the limit of $250 so would this be okay as I would think the Certificate of Insurance, while written for our limits shows $6M the contract limits to $250, or by proving the COI with the $6M does that negate the Limitation of Liability paragraph and the $250 clause? I would like to close the deal but don't want to expose us in the process for a nominal contract for a relatively small RMR. Name withheld ******************** Response ******************** I routinely reject subscriber demand that alarm company add subscriber as additional insured, though it is acceptable for the installation phase only. Here you are not just installing but providing after-install services, monitoring. If you name the subscriber as additional insured the policy would not be limited to the $250 limitation of liability unless the endorsement is worded that way, and I am not even sure about that [question for the insurance agents]. The insurance policy will give the subscriber the rights in the policy. You want to make the deal. Adding the subscriber as additional insured puts your insurance carrier at risk, not you [except the carrier can drop you]. It’s the carrier that has to affirmative add your subscriber as an additional insured, so it’s the carrier’s decision and risk. If the carrier is willing to name additional insureds then you can agree to it, but check with your carrier first, before agreeing to any provision in the contract that requires it. I don’t suggest you accept any provision requiring additional insured for after-install services, even if your carrier doesn’t seem to care. That’s something that going to come back to bite you. ********************* To order up to date Standard Form Alarm / Security / Fire and related Agreements click here: www.alarmcontracts.com *************************** CONCIERGE LAWYER SERVICE PROGRAM FOR THE ALARM INDUSTRY - You can check out the program and sign up here: https://www.kirschenbaumesq.com/page/concierge or contact our Program Coordinator Stacy Spector, Esq at 516 747 6700 x 304. *********************** ALARM ARTICLES: You can always read our Articles on our website at ww.kirschenbaumesq.com/page/alarm-articles updated daily ******************** THE ALARM EXCHANGE - the alarm industries leading classified and business exchange - updated daily ************************* Wondering how much your alarm company is worth? Click here: https://www.kirschenbaumesq.com/page/what-is-my-alarm-company-worth ****************************** Getting on our Email List / Email Articles archived: Many of you are forwarding these emails to friends or asking that others be added to the list. Sign up for our daily newsletter here: Sign Up. You can read articles and order alarm contracts on our web site www.alarmcontracts.com ************************** 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 www.KirschenbaumEsq.com
