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More on Sonitrol Case - May 5, 2014

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MORE ON SONITROL CASE
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Ken,
    Interesting case. I wonder what the judge would have done had the cause and origin been known?
Bob Craig, General Counsel
Guardian Alarm Co. of Mich.
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Response
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    No need to wonder. because the decision actually slamed Sonitrol on all of the contract provisions.  And rightly so.  The contract, no doubt prepared by top notch attorneys, is wordy, not consumer friendly and in the Judge's view, not enforceable, at least not on the motion for summary judgment.  Here is what the Judge has to say about 3 essential provisions in the Sonitrol contract - the Limitation of Liability Clause; Exculpatory clause; Contractual Time Limitation.  The Judge rejects these provisions because of how they are written and how applied in this case on the motion.  
    So to respond to your comment, had the Plaintiff in this action been able to point to any explanation and cause of the fire I think the motion for summary judgment would have been denied based on the contract defenses.  I am also confident, and can't help pointing out, that had Sonitrol used the Standard Form Contracts the contractual provisions would have been enforced.  If you are not using the Standard Form Contracts, what are you waiting for?
    Here is the Judge's analysis on the 3 contract issues:

 Limitation of Liability Clause

   Sonitrol claims that the contract pursuant to which the plaintiff makes her
claims limits any potential liability to \"one-half year\'s monitoring payments,\"
or $158.70. The plaintiff argues that the issue of the validity of this
liquidated damage provision is not appropriate for summary judgment. The court
agrees. As Judge Corradino noted in Vloski v. American Protective Services,
Superior Court, Judicial District of New Haven at New Haven, Docket No. CV93
0353966S (Nov. 14, 1996), \"ssuming the defendant is correct in its position
that the liquidated damage clause is applicable to the claims made here, it is
difficult to understand how that would entitle it to summary judgment. That is,
if the damages are properly   so limited that does not mean in the
appropriate cause the plaintiff would not be entitled to a recovery up to the
$250 maximum. If that\'s the case, how can the court grant summary judgment? It\'s
not an argument going to the issue of liability as such, just the amount of
liability is involved.\"


   The plaintiff claims that the language of the contract itself provides the
basis for denying summary judgment on the representation   claims since
there are issues of fact regarding the representations made by Sonitrol. She
notes that the contract provides for installation and service of an \"alarm
system\" and that it allows Sonitrol to \"make any necessary inspections, tests,
and repairs as required\" to the system. Id., paragraph 7. The plaintiff\'s
expert, Jeffrey Zwrin, opines that the system was \"incompletely installed\" and
that Sonitrol \"never made any necessary inspection, tests, and repairs, as
required, even though they knew, or should have known, that the fire alarm
system, at the Behan\'s home, was impaired and unable to communicate any fire
alarm signal emergency to the Sonitrol Central Station.\" Affidavit of Jeffrey
Zwrin, paragraph 9.m., August 9, 2012.
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Exculpatory Provisions

   Sonitrol claims that certain provisions of the contract bar this action
because all of the plaintiff\'s claims are predicated on the contract. The
contract provides: \"Dealer hereby warrants to client that in the event any part
of the equipment installed shall become defective or inoperative under normal
use within one (1) year from the date of the original invoice for this
installation, and which dealer\'s examination shall disclose to be defective or
inoperative, dealer shall replace or repair such defective part without charge
to client. In no event shall dealer be liable for more than, and client\'s
exclusive remedy for breach of this limited warranty shall be limited to, the
repair or replacement of defective equipment installed under this agreement, and
dealer shall not be liable for injuries to persons or property, including, but
not limited to, all general, direct,   special, exemplary, punitive,
incidental or consequential damage.\" Attachment 1, paragraph 10, to Exhibit A to
Memorandum of Law in Support of Motion for Summary Judgment, #177. The contract
also provides that: \"This warranty does not cover any damage to material or
equipment caused by accident, vandalism, flood, water, lightning, fire,
intrusion, abuse, misuse, an act of God, any casualty, including electricity,
attempted unauthorized repair service, modification or improper installation by
anyone other than dealer and any other cause beyond the control of dealer,
including interruption of electrical or telephone service.\" Id., paragraph 4. In
addition, the contract states: \"Client acknowledges that any affirmation of fact
or promise made by Dealer shall not be deemed an express warranty: The dealer
does not make any representation or warranty, including any implied warranty of
merchantability or fitness that the system or service supplied may not be
compromised, circumvented, or the system or service will in all cases provide
the signaling, monitoring and response for which it was intended: That the
client is not relying on dealer\'s skill or judgment in selecting or furnishing a
system suitable for any particular purpose. There are no express
warranties beyond those on the face of this agreement.\" Id., paragraph 5.

   The plaintiff claims that these provisions are inapplicable because this is
not a breach of warranty case. The court agrees. The counts against Sonitrol
sound in breach of contract, negligent misrepresentation, recklessness,
fraudulent misrepresentation, and CUTPA. \"he law\'s reluctance to enforce
exculpatory provisions of this nature has resulted in the development of an
exacting standard by which courts measure their validity. So, it has been
repeatedly emphasized that unless the intention of the parties is expressed in
unmistakable language, an exculpatory clause will not be deemed to insulate a
party from liability for his own negligent acts . . . Put another way, it must
appear plainly and precisely that the limitation of liability extends to
negligence or other fault of the party attempting to shed his ordinary
responsibility . . .\" (Citation and internal quotation marks omitted.) Hanks v.
Powder Ridge, 276 Conn. 314, 322 (2005). The language of the contract does not
extend to the claims of the plaintiff here, which do not sound in breach  
of warranty.

   Therefore the existence of the exculpatory language is not a basis to grant
summary judgment in Sonitrol\'s favor and the court need not reach the issue of
its enforceability.
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Contractual Time Limitation

   Sonitrol claims that the plaintiff\'s claims are barred by the contractual
time limitation. The contract provides that: \"All claims, actions or
proceedings, legal or equitable, against dealer must be commenced in court
within one (1) year after the cause of action has occurred or the act, omission
or event occurred from which the claim, action or proceeding arises, whichever
is earlier, without judicial extension of time, or said claim, action or
proceeding is barred, time being of the essence of this paragraph.\" Attachment
1, paragraph 13, to Exhibit A to Memorandum of Law in Support of Motion for
Summary Judgment, #177. Sonitrol therefore claims that any act or omission
occurring prior to December 29, 2008 is barred since they were served with the
complaint in this matter or December 29, 2009. The court agrees with Judge
Eveleigh\'s conclusion in New London County Mutual Insurance v. Nissan North
America, Inc., Superior Court Judicial District of Waterbury at Waterbury,
Docket No. UWY-CV-02-4003594-S (April 23, 2007), cited by the plaintiff,
that \"he court finds the phrase [without judicial extension] sufficiently
ambiguous to deny a summary judgment motion.\"

   Viewing the evidence in the light most favorable to the plaintiff, issues of
fact exist as to the claims of negligent and fraudulent misrepresentation
against Sonitrol. However, the plaintiff must prove that such misrepresentations
were the cause of her loss and, as found above, she cannot do so. Therefore,
summary judgment is granted as to the Seventh and Ninth Counts.
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case can be read in its entirety at:

www.kirschenbaumesq.com/article/-susan-behan-v-sonitrol-corporation-et-al-
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