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Does alarm company’s ‘We are not an insurer’ language overcome negligence claim?

AUG 03, 2017 | BY STEVEN A. MEYEROWITZ, ESQ., DIRECTOR, FC&S LEGAL

This story is reprinted with permission from FC&&S Legal, the industry’s only comprehensive digital resource designed for insurance coverage law professionals. Visit the website to subscribe.

Most businesses and many homeowners have alarm systems that include continuous monitoring. And the customers of the alarm companies rely on the systems to give them warnings of intruders or other problems. But what happens when the alarm system malfunctions, the business owner’s property is stolen, and the insurance doesn’t cover the claim? Can the business owner recover from the alarm company for negligence or does the contract’s limitation of liability language prevail?

A communication ‘error’

Ivan and Krystyna Homola, the owners of EJ Jewelers, Inc., contracted with Protection One Alarm Monitoring Inc., d/b/a Protection 1 Security Solutions, to install a burglar alarm monitoring system and closed circuit television at their store. In May 2014, the Homolas contracted with the company for burglar monitoring services, the terms of which superseded all prior agreements (2014 Agreement).

At approximately 6:00 a.m. on March 20, 2016, the Homolas received a phone call from Protection One informing them that the jewelry store was experiencing a “communication error.” Ms. Homola directed Protection One to call the police.

An hour later, Ms. Homola “called Protection One to follow up and asked if everything was ok and if the store was protected.” Ms. Homola said that she was told that “everything was fine, the police came to the store, and the store was fully secured by the alarm.”

At 1:00 a.m. on March 21, 2016, the Homolas received a second call from Protection One at which time, they were informed “that the store was again experiencing a ‘communication error’ in a few zones” but that there was “no burglary, just a communication problem.”

Later that morning, Ms. Homola again contacted Protection One, and she was told that “everything [was] fine.”

The next day, March 22, 2016, the Homolas went to the store and discovered that it had been burglarized. Apparently, perpetrators had accessed the alarm system’s power supply, which was housed in the basement of a business adjacent to the jewelry store. After disrupting the power, the perpetrators allegedly waited for the “back-up” batteries in the store’s alarm system to dissipate. Like a scene in a movie, the thieves allegedly cut a hole through the roof and descended into the store, stealing more than $500,000 in jewelry.

That same day, the Homolas also learned “that the cameras supplied by Defendant Protection One … had not filmed at all, and the camera’s backup storage provided by Defendant Protection One was completely empty.”

The Homolas filed a claim with their insurance carrier, Jewelers Mutual Insurance Company, which had issued a policy covering losses up to $80,000. However, because the stolen merchandise had been “out of safe or vault while closed to business,” the insurance carrier paid only $5,000 on the claim.

The Homolas then sued Protection One for, among other things, breach of contract and gross negligence. Protection One moved to dismiss.

Protection One’s Limitation of Liability

The 2014 agreement provided:

(A)WE ARE NOT AN INSURER * * * OF YOUR PREMISES OR ITS CONTENTS; (B) IT IS YOUR RESPONSIBILITY TO OBTAIN ADEQUATE INSURANCE COVERING YOU, YOUR PREMISES AND ITS CONTENTS * * *; (D) THE EQUIPMENT AND SERVICES MAY NOT ALWAYS OPERATE AS INTENDED FOR VARIOUS REASONS, INCLUDING OUR NEGLIGENCE OR OTHER FAULT. WE CANNOT PREDICT THE POTENTIAL AMOUNT, EXTENT OR SEVERITY OF ANY DAMAGES * * * THAT MAY BE INCURRED * * * DUE TO THE FAILURE OF THE EQUIPMENT OR SERVICES TO WORK AS INTENDED. AS SUCH: (I) YOU AGREE THAT THE LIMITS ON OUR LIABILITY AND THE WAIVERS AND INDEMNITIES SET FORTH IN THIS AGREEMENT ARE A FAIR ALLOCATION OF RISKS AND LIABILITIES BETWEEN YOU, US AND ANY AFFECTED THIRD PARTIES; (II) YOU WILL LOOK EXCLUSIVELY TO YOUR INSURER FOR FINANCIAL PROTECTION FROM SUCH RISKS AND LIABILITIES, AND (III) * * YOU WAIVE ALL RIGHTS AND REMEDIES AGAINST US, INCLUDING ALL RIGHTS OF SUBROGATION, THAT YOU, ANY INSURER, OR ANY OTHER THIRD PARTY MAY HAVE DUE TO ANY LOSSES YOU OR OTHERS MAY INCUR.

In addition, the 2014 Agreement provided:

Limitation of Liability for Alarm Failure Events. NEITHER WE NOR ANY PERSON OR ENTITY AFFILIATED WITH US SHALL BE LIABLE FOR ANY LOSSES ARISING DIRECTLY OR INDIRECTLY FROM ANY ALARM FAILURE EVENT.

WE ARE NOT LIABLE UNDER ANY CIRCUMSTANCES FOR THE ADEQUACY OF THE EQUIPMENT DESIGN OR DESIGN CRITERIA ESTABLISHED BY YOU, YOUR DESIGN PROFESSIONAL, OR LOCAL CODE REQUIREMENTS, IF, NOTWITHSTANDING THE PROVISIONS OF THIS PARAGRAPH 10(B), WE OR ANY PERSON OR ENTITY AFFILIATED WITH US ARE DETERMINED TO BE RESPONSIBLE FOR ANY LOSSES ARISING FROM ANY ALARM FAILURE EVENT, YOUR CLAIMS AGAINST US AND/OR ANY PERSON OR ENTITY AFFILIATED WITH US SHALL BE LIMITED TO $2,000.00. THIS AMOUNT IS YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY ALARM FAILURE EVENT, EVEN IF CAUSED BY PROTECTION ONE’S NEGLIGENCE OR THAT OF OUR AFFILIATES OR OUR RESPECTIVE EMPLOYEES OR AGENTS, BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, OR OTHER FAULT.

Further, the 2014 agreement defined alarm failure events as the “condition, nonfunctioning, malfunction, faulty design, faulty installation, or failure in any respect of the equipment or services to operate or perform as intended.”

A complete defense

The trial court granted Protection One’s motion.

In its decision, the trial court explained that the Homolas’ allegations sufficiently alleged conduct on the part of Protection One that, if true, might constitute “gross negligence.” The trial court reasoned that the Homolas alleged that, on two consecutive days, Protection One failed to alert the police and appropriate authorities after having been notified that the alarm system at the jewelry store was experiencing a “communication error”; in response to Ms. Homola’s call to follow up, Protection One responded that the jewelry store was fully alarmed and secured. In a second conversation, Protection One informed Ms. Homola that “there was no burglary, just a communication problem.”

The trial court then ruled that, notwithstanding any alleged gross negligence, the risk allocation/waiver of subrogation provision set forth in the 2014 agreement, which required the Homolas to obtain insurance for all losses occurring at the jewelry store and pursuant to which they waived any remedies against Protection One, functioned “as a complete defense” to the claims asserted by the Homolas against Protection One.

The case is Homola v. Jewelers Mutual Ins. Co.

Steven A. Meyerowitz, Esq., is the director of FC&S Legal, the editor-in-chief of the Insurance Coverage Law Report, and the founder and president of Meyerowitz Communications Inc. Email him at smeyerowitz@meyerowitzcommunications.com.

Original Article

5 Tips for an Effective Small Business Website

by Carolyn Sennett on June 20, 2017

A website is essential to marketing your business. As customers research your products and services, one of their first stops will be your website. It is their first introduction to your business, so naturally you’ll want to do all you can to make their virtual visit a positive experience.

Here is a five-question checkup to help make sure your website is in tip-top condition and gives you a competitive edge.

  1. Are you using a responsive website design?

With more people browsing websites using their smartphones, tablets and other devices, it’s important to create a website that operates seamlessly on multiple platforms. Google reports that more than half off all searches begin on a mobile device. You don’t want to miss a sale or a customer because of a poor website experience.

  1. Is your website optimized for search?

A few simple things that you can do to optimize your site for search engines are add keywords and title tags to your web pages and create and regularly post to a blog to help drive traffic to your website. If you are new to search, look for guides for beginners or tips from reputable resources like moz.com.

  1. Is your site meeting your customers’ expectations?

First impressions of your website are important to keep someone engaged. It’s OK to have graphics on your home page, but do not use complex graphics that may take a long time to download. Be sure your site explains why your business is the best solution for your customers’ needs. Most business websites include at least these four pages: home, product and services, about us and contact us. If you have an interesting business history, add that to your site, too. You may even want to include bios and pictures of yourself and your staff. People like to feel personally connected to the business that they are working with. Check out the infographic from Entrepreneur for more must-have business website features.

  1. Is your web content clear and up to date with clear calls to action?

Keeping your content current is a smart way to build awareness, generate sales and maintain customer relationships. It’s also important for your site to have clear calls to actions. In other words, what do you want your site visitors to do? Common calls to action are to contact you, make a purchase, sign up for a service or get a quote. Capturing visitors’ email addresses could also help you stay in touch with them if they are not ready to buy right away.

  1. Is your website (and your business) listed on search directories?

If your business has a physical address, then you will most likely have a local listing in Google, Yelp, Bing, Internet Yellow Pages, Yahoo! Local and other directories. It is important to claim your listing because it can then lead people to you to find essential details like your business’s address, phone number and hours. It can also help your business rank in local search engine results and encourage customers to post reviews about your products or services. Websites like Google and Facebook for Business let you claim and update the information without a fee, but others will charge you for the privilege.

As you can see, a well-designed website is an asset and a necessity for businesses. It’s a way to build relationships and communicate directly with your customers about the products and services that you offer. An effective business website also gives you credibility to show that you’re committed to providing solutions to your clients’ needs. The more you work on your website, the better your chances for business success.

Visit our Business Website: Scott Lynch Agency

Original Article

Insurance Terms Made Easy: Subrogation

Watch this video to learn about Subrogation. For more information about insurance visit our website Scott Lynch Agency

Insurance Terms Made Easy: Subrogation

Insurance Terms Made Easy Subrogation

6 Free Apps for Contractors

by Amanda Prischak on April 4, 2017

Payroll, taxes, operations—there are lots of details to stay on top of when you run your own business.

Fortunately, today’s evolving technology makes it easier than ever to be organized. And small business owners rely on it: A survey conducted by the National Small Business Association revealed that 70 percent of small business owners said that technology is key to their success. 

Of course, more complex technology solutions can cost quite a bit. But many others charge only a modest fee—or are even free. That’s the case with the six phone apps below. They can help you get the job done at no extra cost. Read on to see how.

The app: Google Keep

Best for: Creating lists

What it does: When you need to offload an idea for later use, this is the app you’ll want to use. Google Keep lets you create notes and lists, set reminders, loop in a “collaborator” and more. Even better, it automatically syncs to your devices.

The app:Bubble Level (for Android) and iHandy Level (for iOS)

Best for: Calibrating surfaces

What it does: Forgot your level? That’s no problem when you have either of these apps. They’ll help you check surfaces, calculate angles and more. 

The app: Safety Meeting App

Best for: Getting help with OSHA compliance

What it does: With versions for 34 trade types, Safety Meeting App lets you track safety meetings, accidents, employee attendance and much more. It also has information on 950 safety topics. The first year is free.

The app: Wave

Best for: Staying on top of accounting

What it does: Whether you want to create and send an invoice, scan a receipt or create an accounting report, Wave has you covered. The free version offers a surprising number of services—and more complicated functions like paying employees are available for a fee.

The app: Construction Manager

Best for: Staying connected to the people in the office and the field

What it does: Whether you need to share project estimates, time sheets or maintenance logs, Construction Manager has you covered. It lets everyone stay in the loop, no matter where they may be. It also lets salespeople and estimators create on-site estimates for projects. The app is free, and you have the option of purchasing options that block advertising, give you unlimited form submissions and more.

The app: SignNow

Best for: Gathering signatures

What it does: How does signing a document or getting someone’s signature with no need to mail, fax or scan anything sound? SignNow makes that possible with just one simple finger stroke serving as your signature. The free version gives you five signatures a month—after that, it’s just $6.99 a month for the service.

Erie Insurance does not endorse the apps described above. Please do your own investigation and make up your own mind whether any of these apps is right for you.

For Business Insurance in Indiana visit: Scott Lynch Insurance

Ask ERIE: What’s the Difference Between a Certificate of Insurance and an Additional Insured?

by Amanda Prischak on March 22, 2017

You typically come across these issues when you’re talking about business insurance. It’s easy to get them confused.

The key difference between a certificate of insurance and an additional insured comes down to whether you have coverage under someone else’s insurance policy. This only applies if you’re named as an additional insured on a policy.

What’s an additional insured?

When you’re named an additional insured on a policy, you are typically insured for covered claims arising from the Named Insured’s negligence (or your joint negligence) with regard to the premises, project and equipment that’s described in the additional insured endorsement. This commonly will include defense costs should you need to hire an attorney if the claim falls within the terms of the additional insured endorsement.

Businesses typically request to be named as an additional insured on a policy if another business’s negligence could affect them. Two examples could include:

  • A general contractor hires a subcontractor to help with a project. The subcontractor does negligent work, which leads someone to get injured and file a lawsuit against both the general contractor and the subcontractor. By being named an additional insured on the subcontractor’s policy, the general contractor  may obtain coverage under the subcontractor’s policy within the policy’s limits.
  • A wholesaler-distributor distributes products manufactured by another company. A product injures someone, and the injured person files a lawsuit against the wholesaler-distributer and the manufacturer. By being named an additional insured on the manufacturer’s policy, the wholesaler-distributer may obtain coverage under the manufacturer’s policy within the policy’s limits.

A business is usually added as an additional insured via an endorsement to a business insurance policy. Many contracts spell out who should be named as an additional insured on a business’ policy.

There are two ways most policies treat additional insureds: on a specific basis and on a blanket basis. A specific basis is just that—a specific person or business is named as an additional insured on a policy.

Meanwhile, a blanket basis covers anyone who meets the definition of “additional insured” as it’s spelled out in the policy. The policy typically names broad types of parties like “contractors” or “landlords.”

What is a certificate of insurance?

A certificate of insurance is a document that shows that insurance coverage is in effect. It shows the dates of coverage, the limits, and the line of business that’s covered.

The certificate shows that a policy is in force—but that doesn’t mean the person or business requesting it is covered as well. As a certificate holder, you are only receiving proof that the insurance policy exists; the certificate of insurance is not an insurance policy and does not provide coverage or serve to amend or alter the terms of an insurance policy.

A certificate of insurance is usually requested by one party in an agreement, contract or transaction to make sure another party has the appropriate insurance coverage. A certificate of insurance does not entitle you to rights as an additional insured. For example, you aren’t provided any coverage under the other party’s policy in the event of a loss, unless the policy has been endorsed to provide coverage. For that reason, the best way to verify that you have been added to a policy as an additional insured is to request proof that the additional insured endorsement has been added to the  insurance policy. If the policy has been endorsed with the additional insured form, the certificate will often include the form number and specific information about the endorsement that reflects what has been added to the policy. Proof may therefore be a certificate with this information listed or an actual copy of the declarations showing the endorsement.

As you can see, additional insureds and certificates of insurance can be pretty tricky. And not having the right information can put you (as well as your business) at financial risk. That’s why it’s so important to have an insurance professional like an Erie Insurance agent in your corner. An Erie Insurance agent in your community can help you make sense of these issues and more.

 

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Why ERIE for Restaurants? Right Coverage, Right Price. Call us at (317) 420-2867 to discuss how we can help your business or visit us on line at Scott Lynch Agency.

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