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indemnification for your own negligence - Fire Protection / see below for next webinar April 18, 2017

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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indemnification for your own negligence - Fire Protection / see below for next webinar
April 18, 2017
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indemnification for your own negligence - Fire Protection
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    Fire Protection company allegedly failed to inspect a pipe connected to a fire suppression system that burst causing extensive water damage.  The Fire Protection company denied any wrongdoing, specifically denying it had liabilty for the causes of action in contract, implied warranty and negligence.  The work as performed pursuant to a contract between the Fire Protection company and the property manager.  The Fire Protection company moved for judgment on its indemnity claim; the lower court denied the motion and an appeal was filed.
    The lower court first addressed a choice of law between Ohio and Wisconsin and determined that in Ohio the indemnity clause would be enforced because Ohio did not require specific language that the indemnity included the indemnitee's own negligence.  In Winconsin, however, where the lawsuit was pending, the lower court found that Winconsin required strict interpretation and language referring to the indemnitee's negligence and that the contract clause in question was not sufficient for enforcement. 
    On appeal the appellate court reversed and found that under Winsconsin law the indemnity clause was sufficient and therefore should be enforced  because the contract had a number of other provisions which made it clear that the Fire Protection company was not to be held liable and required indemnity.  
    The appellate court concluded:
    "In conclusion, we hold that the indemnification provision in the contract between Cintas and Becker clearly expresses the parties' intent that Becker would defend, indemnify and hold Cintas harmless from the affects of its own negligence. Further, we hold that the contract combines the requirement that Becker purchase insurance and waive any subrogation claims against Cintas and indemnify and hold Cintas harmless from claim, charge, liability, or damage arising out of any goods or services provided by Cintas under the contract, including any failure of the goods or services to function as intended, evidencing a clear intent to indemnify Cintas for all liability, including that resulting from Cintas' own alleged negligence. The contract evinces no other purpose for the inclusion of both provisions."
    You can read the entire case on our website at https://www.kirschenbaumesq.com/page/alarm-law-issues.
    Here's what's interesting about this case.  In the alarm industry we are careful to specify that the security systems, including fire alarms, are deemed personal property, not a fixture which becomes part of the realty.  We do this because come states prohibit enforcement of certain "protective provisions" [including the indemnification provision] when the work is an improvement to real property.  Some statutes will prohibit enforcement of an indemnity provision for the indemnitee's own negligence when the work is for improvement of real property.  
    The court did not address this distinction in this case, and probably Ohio and Wisconsin don't have statutes that prohibit or restrict enforcement.  Wisconsin's strict interpretation requirement is most likely case-law created.
    I was surprised to find the protective provisions in the Fire Protection company's contract because the Fire Protection industry has not embrased Standard Form Agreements the way the security / fire alarm industry has.  So I wasn't surprised that the contract provisions were not as clear as they could have been.  Had they been clear [as clear as the Standard Form Agreements], or had this Fire Protection company used the Standard Fire Protection All in One, it would have had a much better chance prevailing in the lower court.  In fact the contract may have dissuaded a lawsuit from being commenced.  
    Another issue not addressed by this court was the difference between property damage and personal injury claims.  I wonder how the court would have decided if this case involved personal injury or death and the Fire Protection company was seeking indemnity.  You can bet that to prevail, if at all, the contract provisions would have to be as tight as that pipe connection should have been.
    Fire Protection companies, perhaps more than alarm - security companies - need to use proper contracts.  Your customers won't sign them; insist on AIA forms or their own forms; require you to indemnify them rather than indemnifying you?  Well, that is a matter or orientation and consistency in the industry.  While not every customer will agree to sign your Standard Form Agreement, certainly none will if you don't have a Standard Form Agreement and present it with the same salesmanship as you used to land the job.  It only took the alarm industry 20 or so years to figure it out.  Let's hope the Fire Protection industry can move a bit faster.
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WEBINARS:  Sign up for any or all of the webinars that interest you.
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FREE Webinar Series "All You Need To Know About" alarm industry issues. 
Register for one or all.  Each presentation scheduled for half hour to hour.  Not recorded.
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TitleAll You Need to know about Internet security and why is it relevant for the alarm industry 
When: April 25,  2017 noon EST
Where: Your computer for power point, live video and call in on computer or phone
What will be covered: Discussion of securing Internet devices.  Attacks by Mirai and other botnets and disruption to Internet services around the world made possible because of the millions of poorly secured cameras, DVRs and other installed network devices. 
Who should attend: Alarm company owners, general and technical managers
Presented by: Securifi, a leading router and smart home hub company, soon to be offering its own comprehensive Total Security Solution (Monitored Security + IoT Security + Parental Controls + Malware Blocking) to the alarm industry.  Rohit Somani     rohit.somani@securifi.com    855 969 7328  
Register here:  https://attendee.gotowebinar.com/register/6899604070803705091
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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
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