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FIREMAN'S FUND INS. CO. v. ADT SEC. SYS.

March 31, 1994

FIREMAN'S FUND INSURANCE COMPANY as subrogee to ARKIN MEDO, INC., Plaintiff,
v.
ADT SECURITY SYSTEMS, INC., Defendant.



The opinion of the court was delivered by: I. LEO GLASSER

 GLASSER, United States District Judge:

 Plaintiff Fireman's Fund Insurance Company ("Fireman's Fund") brings this diversity action as subrogee to Arkin Medo, Inc. ("Arkin Medo") against ADT Security Systems, Northeast, Inc. ("ADT"), incorrectly sued here as ADT Security Systems, Inc. ADT now moves for summary judgment, or, alternatively, partial summary judgment, pursuant to Fed. R. Civ. P. 56. *fn1" For the reasons set forth below, the motion for summary judgment is granted.

 FACTS

 A. The Contract

 ADT is a corporation engaged in the business of installing, maintaining and monitoring burglar alarm systems. Since September 5, 1978, it has had a contract with Arkin Medo -- a company which sells photographic and graphic art supplies -- to provide burglar alarm services to Arkin Medo's premises located at 131-27 Fowler Avenue in Flushing, New York (the "premises").

 Although ADT and Arkin Medo have entered into several different contracts since 1978, all contracts have contained a provision exculpating ADT from loss due to burglary (the "exculpatory clause"). The exculpatory clause, which is reproduced in boldface capital letters in the contract, provided as follows:

 
It is understood that [ADT] is not an insurer, that insurance, if any, shall be obtained by [Arkin Medo] and that the amounts payable to [ADT] hereunder are based upon the value of the services and the scope of liability as herein set forth and are unrelated to the value of [Arkin Medo's] property or property of others located in [Arkin Medo's] premises. . . . [Arkin Medo] does not desire this contract to provide for full liability of [ADT] and agrees that [ADT] shall be exempt from liability for loss, damage or injury due directly or indirectly to occurrences, or consequences therefrom, which the service or system is designed to detect or avert[.]

 Affidavit of S. Peter Fogg, Sworn to Dec. 7, 1993 ("Fogg Aff.") Ex. A P E. In addition to the exculpatory clause, the contract in effect on the date of the alleged burglary -- which was executed by ADT and Arkin Medo on or about July 28, 1988 -- contained the following limitation of liability clause (also reproduced in boldface capital letters):

 
If ADT should be found liable for loss, damage or injury due to a failure of service or equipment in any respect, its liability shall be limited to a sum equal to 100% of the annual service charge or $ 10,000, whichever is less, as the agreed upon damages and not as a penalty, as the exclusive remedy[.] *fn2"

 Fogg Aff. Ex. B P E. The contract specified that if Arkin Medo desired ADT to assume greater liability, the contract could be amended "to allow [Arkin Medo] to pay an additional amount necessary for [Arkin Medo] to purchase an insurance policy for such greater liability." Fogg Aff. Ex. B P E. The contract further provided that these terms applied

 
If loss, damage or injury irrespective of cause or origin, results directly or indirectly to person or property from performance or nonperformance of obligations imposed by this contract or from negligence, active or otherwise, of ADT, its agents or employees.

 Fogg Aff. Ex. B P E.

 B. Instructions from Arkin Medo

 Shortly after Arkin Medo's alarm system was installed, a representative of Arkin Medo -- who left the employ of the company in 1987 -- instructed ADT by letter dated December 4, 1978, that the only circumstances in which Arkin Medo was to be called were: (1) should the sprinkler system go off; (2) should there be a fire "with the Fire Department called and responding"; (3) should there be a "visible forced entry into our premises"; and (4) should the police have to be called. The letter instructed ADT to ...


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