Re: Law Suit in NJ

["Doug" <not@xxxxxxxx>]

The following is the text from the email sent out by Ken Kirschenbaum, for
those that don't know he maintains an email list and regularly sends out
emails on industry issues. You can subscribe to the mailing list at
www.alarmcontracts.com.

NJ case - problem for Industry
November 10, 2006

ADT installed a burglar alarm system for a commercial subscriber. System was
not UL listed. Subscriber suffered a burglary to the tune of $8 million and
the subscriber's insurance company, suing under its subrogation rights, sued
the alarm company and another defendant. Though ADT did move for summary
judgment during the discover stages of the case, the judge denied the
motions.
************************


ADT's contract required that it be signed by more than one of its company
representatives. As it turned out, one of the authorized signatories did not
sign the contract. I am simplifying the case, but basically the judge held
that there was no written contract. Thus, the judge would not enforce the
Waiver of Subrogation clause in the contract, which the judge mentioned in
passing that he would have found to be controlling if there had been an
enforceable contract.
The judge also commented that he would not have enforced the limitation of
liability clause because he thought NJ's licensing statute now prohibited
the provision. This however was not a determinative ruling on the judge's
part. Once the judge decided to through the contract out it was no longer
necessary to rule on the particular provisions in the contract.
*****************

The case went to a jury, which found that the subscriber lost $8 million and
that ADT is liable for half. ADT has filed an appeal to the Appellate level
court, arguing in the first instance that the judge should not have tossed
the contract out merely because one of the ADT countersignatures was
omitted. The contract had in fact been signed by 2 other ADT
representatives, and the parties had both performed under the contract.
ADT's counsel has filed a well thought out and comprehensive brief, and I
predict a reversal by the Appellate Court.
****************


The ADT appellate brief does emphasis the importance this case has to the
alarm industry, not just in NJ but nationwide. No case that whittles away at
the solid foundation of case law the alarm industry has built up should be
ignored or taken lightly. While the trial judge's comments regarding the
particular provisions of the ADT contract are not in published decisions,
those comments are now going to be before the Appellate Court, and if that
court comments on the issues the Appellate Court decision is almost certain
to be published, which means all lawyers and judges researching the issues
will find it and use it in their arguments. Suffice it to say that it is
important that ADT have a decisive victory on its appeal.
The NBFAA, I believe that the request of the NJ Burglar and Fire Alarm
Association, has decided to engage competent counsel to offer a national
perspective to the court in an amicus brief. I should add that ADT's trial
counsel, at least from my limited review of the appeal papers, seems to have
done a competent job. I think this trial judge is out on a thin limb and
will be reversed or ignored in future cases. The Appellate Court has to
first agree that an amicus brief can be filed. This "friend of the court'
brief will in many ways mirror the brief by ADT's counsel, but will likely
have a more nationwide emphasis and strengthen ADT's argument that this
decision has potential to impact beyond NJ.
The trial record and the briefs in the case are extensive and I have not
read though the papers but wanted to share what I know so far. I am sure
there is going to be more discussion on this topic.
***************************




"Jim" <alarminex@xxxxxxx> wrote in message
news:1163222902.766018.196540@xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
>
> Everywhere Man wrote:
>> Which only gives an absolute AMEN to my stance of TOUGH SHIT!
>> Now this really pisses me off that the NBFAA has the balls to ask me to
>> chip in to defend ADT.
>> Why is the NBFAA so willing to throw millions of OUR dollars to help
>> defend a billion dollar conglomerate like Tyco, and why did they
>> neglect to mention the company's name in their plea for funds?
>> I can't wait to hear all of you who drank the NBFAA Kool Aid try to
>> justify this one.
>> The organization has just officially become a total fucking sham. Just
>> admit you're all fucking stupid for buying the shit they were slinging.
>>
>> Someone audit these bozos and find out what board member is related to
>> the lawyer they want to retain.
>>
>> Nick Lawrence............. I can hear you laughing hard because you've
>> been preaching for a long time about what a crock of crap they are. Way
>> to go calling that one Nick.
>>
>> Drive down the coast and buy Doug a beer for posting the info.
>>
>>
> I believe the reason is ...... that if it's decided against ADT, then
> in the future the case
> can be refered to by any lawyer in US, as a precedent to throw out the
> limitation
> of libility clause in any alarm contract. If that happens, obviously
> our insurance rates are going to skyrocket and I mean REALLY skyrocket.
> It doesn't matter that it's ADT. It's the elimination of the
> limitation of libility clause.
>