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more on signing GC's contract / getting end user to sign / more on additional insureds July 5, 2017

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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more on signing GC's contract / getting end user to sign / more on additional insureds
July 5,  2017
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more on signing GC's contract from June 21, 2017 article
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Ken
    Your advice on this is solid as usual but not always practical.  In commercial applications it often can be very difficult or impossible to get access to the end user, who actually may not even own the building yet  (always true on builder-spec homes).  One solution on monitoring for GC prior to close (spec home or testing to get AHJ approval/CO in commercial) is to have the CG sign a month-month agreement, in some cases at no charge to get your protective provisions a “hook” in place, giving you the time to get the agreement signed by end user after closing on the property.
Thank you,
Rob Driscoll 
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Response
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    You should insist on having the end user sign your contract, not only to get the RMR but for the protection in case there is a claim and the end user decides to sue you.
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another comment on GC's contract
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Ken,
    I find your discussion of AIA contracts and working with contractors a topic our industry should work on.  The insurance companies want to limit their client’s liability any way they can.  They really control the security and fire industry.  In my experience the big contractors play a bit of the “bully” when it comes down to these contracts. Their stance is usually “Sign it, or you don’t get the job.” They almost never agree to sign our agreements.  The same holds true for municipalities, schools, and other large entities. 
    I’ve had some success in the past with letting their insurance carrier talk to my insurance carrier, to see if they can adjust a few clauses to find middle-ground, but the moment they start asking me to accept crossing out “waiver of subrogation clauses” and a few other key things, I tend to walk away. 
    I’ve had a few big companies just go along with our agreements because they’ve had very bad experiences with the neophytes who sign the agreements blindly.  I pass on most of the large projects anyway, as they tie-up your resources, seldom live up to the construction schedules or 5-day notice to us to be onsite, and the margins are so tight that everything has to go perfectly or we lose money.  We can install 20 recurring revenue jobs while messing around with the big ones.
   I believe we should help our state and national associations instigate a conversation with the carriers and the municipalities to find some compromises that our attorneys can agree on.   I know the big contractors are having trouble finding quality companies who will sign their agreements.  Maybe if we speak as a group we can effect change.
Ray Yauchler
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Response
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    The issue of allocation of risk, usually backed by insurance, is always going to be a conflict between the one demanding indemnity and the one providing indemnity.  Or, the one accepting the risk and the other who hopes to be risk free.  Unfortunately I don't expect things to change any time soon.  And there will always be alarm companies willing to take the risk and carry the insurance.
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more on additional insured certificates from June 20, 2017 article
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Ken,
    In response to Jean Levenson's question, "Has anyone noticed a significant change.....in adding additional insured[s]?
    Security America Risk Retention group - SARRG has not changed its criteria or position on this topic since our inception in 2003.
    We do however include language on certificates that this additional insured status is only granted for activities of our insured while on the premises.   
    Here is the example, we have a company that has been with SARRG since 2005 from California. They complied with the General Contractor/Builder (and large national company who builds residential developments) to be listed as an additional insured on the alarm company's policy. Ten years later the home owners started filing construction defect claims, but none of the claims made list any complaint against the alarm system or any of the low voltage work that the alarm company may have done. Roofing, counter tops, flooring, windows, all the high ticket items that the home owner would like to have replaced new.
    But because our early certificates did not have the limiting language the alarm company is brought into the case, suffers a portion of the defense costs and may be subject to contributing to any settlements.
    Additional insured status has its place, but so does a properly written certificate that makes certain what coverage is afforded, AS WELL as the alarm contract from an alarm industry expert such as Ken Kirschenbaum and www.alarmcontracts.com 
    It is this attention to the details that SARRG customers have come to demand and expect from SARRG. Everyone else get large loss runs and premium increases when they get caught up on the construction defect treadmill. This is a very lucrative business for law firms because if they are not chasing ambulances, trip and falls or asbestos deaths, it's construction defects.
Bart A. Didden, Executive Claims Manager
Security America Risk Retention Group - SARRG
Security America Risk Purchasing Group LLC - SARPG
877-872-1266
bdidden@securityamericarrg.com 
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Ken
    My carrier is Philadelphia. The additional insured request was primary. The certificate was issued, but it took a lot of effort. 
Jean Levenson
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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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