KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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more on bite and hold dogs / more on sub won't sign contract  / know when to walk and when to talk
July 1,  2017
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more on bit and hold dogs from June 19, 2017 article
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Ken, 
    I have a friend , Dave Reaver from Adlerhorst International, who sells police dogs to 600 police departments and military, including SEALs.  Crazy as it sounds,  Dave has to indemnify the police department in case one of his dogs bites someone. He is self insured and has he been sued him on multiple occasions.     One lawyer has sued him over a dozen times and lost every case. Probably the same lawyer in this case, as it was a civil rights action. I discussed this San Diego case with Dave about a year ago. I don't know how he sleeps at night.  My friend has become an expert witness on dog bite cases. Dave is in his early 70s and can't throw the dogs around as easily as a few years ago, so he's carved a niche as an expert witness while his son goes to Europe to buy dogs.  Last case I discussed with him, the opposing expert witness was an expert in hamster aggression.  Mr. Hamster lost the case.
    I own two dogs purchased from Adlerhorst.
Howard Feldman
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Response
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    Question is how much RMR are you losing by not leasing those dogs out?  Alarm companies, unlike the police departments who enjoy governmental immunity, are in the private sector and have to depend on common law as well as contractual defenses.  Contractual defenses of course depend on the contract wording.  Your buddy gets to rely on the immunity defense because its the police department that is getting sued.  I am little surprised he agrees to indemnify them.  Seems to me that there are a lot of variables that can cause the best trained dog to break training.  
    Probably not a practical idea to offer bite and hold dogs to your typical subscriber for additional defense.  The alarm industry historians can correct me, but I think it's rather recent that we able to train the responding guards and service techs not to bite.   I think we won't add that to the Disclaimer Notice as an item.  
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more on sub won't sign contract from June 16, 2017
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Ken
    Comment for Joe Pfefer with Jade Alarm Co.:
    Make sure you notify your AHJ of the termination of monitoring service for the building in question. Depending on your relationship with your local AHJ's, also let then know that said management company works on their own systems and they might not be licensed or certified to do so. In the long run you are better off walking away from those types of liabilities (customers).
Ron Baumann
ProAlert Security Systems, LLC
Cincinnati, Ohio 
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know when to walk and when to talk
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Ken:
     Your thread on the Mercury and on the ‘contract issue’ [June 6, 2017 article] reminded me of a situation with another property management firm. My insurance representative met with the hopeful subscriber and myself. It was explained Jade Alarm Co. was not an insurer and that is why we needed the agreement in place without striking the E&O clauses that the hopeful subscriber wanted eliminated.
    Years ago the Fire Department went on strike. A large, VERY LARGE, lumber yard went up in smoke (obviously set). Things were so bad the Police Dept put out word anyone seen carrying a can of gas were to be shot on sight.
    When this scenario was presented to the hopeful subscriber that  this occurred again (Fire Dept not responding), would they really expect my company to build a new building for them.
    I honestly did not believe my ears when I heard his answer of ‘YES!’.
This would have been a very plum contract with us picking up 20-buildings for the fire alarm sprinkler supervision service.
    We walked away.
Respectfully,
 Joseph (Joe) Pfefer, President
Jade Alarm Co
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Response
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    The Standard Form Agreements are designed with two purposes.  The first consideration is to provide maximum contractual protection from claims and insure enforcement of the contract terms.  You should be interested not only in defense provisions, but clear monetary and collection issues.  The second is to make the contract as friendly and acceptable as it can be so that the subscriber is not only encouraged to request more equipment and services, but is comfortable signing the agreement.  The two goals are not necessarily mutually exclusive, which is probably what you would think.  
    Those seemingly onerous provisions that provide the most contractual protection, while appearing one sided, are actually designed to clearly explain the alarm company - subscriber relationship.   When presented properly that relationship will make sense to the subscriber and the contract will then make sense.      The size of the job and profit margin is going to correlate directly with the time and effort you are going to devote changing the contract terms and bending to the subscriber demands for contract changes.  A loss leader residential account may not justify any changes or any time thinking about changes, and certainly won't justify hiring [and paying] me to negotiate the contract with the subscriber or its counsel.  But, clearly, some jobs and some subscriber do warrant that additional effort and expense.  
    Under what circumstances does it pay to modify the contract and bring me in to assist with negotiations?  First you need to ask yourself these two questions:

    If the answers to the questions are No and Yes, then don't waste any more time thinking about it or calling me.  Get it over with and keep your fingers crossed.
    If the subscriber is willing to talk, and if you're not going to do the job unless you are comfortable with the contract terms, then bringing me in to assist with negotiations might make sense. Why?

    Yes, I am sure you have lots of experience [more than me in the alarm industry] but probably not so much with the legal issues that make up the contract.  After all, let's not confuse your Internet search with my actual law degree, and experience.  [I saw that on a coffee mug recently and knew I had to use it sooner or later; forgive me].
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THE ALARM EXCHANGE

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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
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