KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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Large fire with non code system - now what
April 12, 2024
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Large fire with non code system - now what
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Ken:
I had an incident just over 2 years ago......rather large fire from one of my accounts. I recall there being a two year window to file a lawsuit from the date of the incident. Is that accurate?
Also, and not sure if this matters, the customer’s system is not up to code. Two nine story residential buildings with only heat detectors. No smoke, no sprinkler. Town refuses to do anything to my knowledge.
We've mentioned this both verbally and on paper that the system needs updating, to no avail. We are using K&K contracts, naturally.
In your opinion, what's the best way to handle this?
Thank you in advance.
Regards
Scott
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Response
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I’m not sure where your head has been for the past two years, but may as well stick it back there and wait it out. One window may have closed, notifying your E&O carrier of a potential claim. Late notice can, in some but not all states, be used defensively by the carrier to disclaim coverage, especially if it can claim prejudice as a result of the late notice. One of the first steps you should have taken, certainly within a few days of the fire, was to notify your carrier of a potential claim. If the claims department responds with “call us if you get formal notice of a claim” then you should respond with I want acknowledgment that I notified you of this potential claim. And don’t be intimidated with “ if we open a file it could be held against you in your Loss Run Report”. Report it; that’s why you carry the insurance.
There are things you should have done after the fire. No, don’t worry, getting out of dodge isn’t one of them. You should have:
· Check to make sure you have your contract with the customer [and hope it’s a K&K Fire All in One
· Check to see if you have the K&K Disclaimer Notice where you noted that customer refused to bring fire alarm up to code
· Look for your correspondence, if any, to the AHJ advising that the fire alarm was not up to code
· Look for your Inspection reports [or someone’s] that also noted the out of compliance fire alarm
· Get the central station Activity Report for the alarm history right up to the fire
· Try to get access to the building to determine if you can figure out why, how or if the fire alarm detected the fire.
· Check the panel to see if it has its own history recorded and preserve the panel, especially if it’s favorable to you
· Send your carrier any communication you get from the customer or its representative regarding the fire
· Tell your carrier you’d like legal guidance if you have to respond to customer requests and ask that your attorney, me, be engaged by the carrier for that purpose
You are lucky that your K&K Fire All in One does shorten the statute of limitation for bringing a lawsuit to one year. The statute of limitation is typically 3 years from negligence and 6 years for breach of contract [time varies state by state], but the reduction in time to one year is generally enforced. You need to be very careful when installing or being involved in any way with a fire alarm system that isn’t to code, even in jurisdictions where the AHJ is less than vigilant. You would be surprised [or maybe not] how quick the AHJ [all of them at that point] will be to blame the fire alarm company for not installing, inspecting and monitoring a proper fire alarm system.
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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
www.KirschenbaumEsq.com
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