I have been in denial, but, given that it is October, and the weekend weather forecast for my hometown of Minneapolis is quite chilly, it seems I need to face reality: summer is over. So, then, is my summer vacation from blogging.
I will re-start blogging with the big-money case coming out of Georgia against Monitronics. The latest in this legal battle over millions of dollars is Monitronics’ attempt to get the Georgia Supreme Court to review the court of appeals’ opinion, which took Monitronics to task, invalidated its contract, and upheld an $8.4 million verdict against Monitronics.
The case epitomizes the saying bad facts make bad law. In case you missed hearing about it, here are the facts and more about the court of appeals’ opinion and Monitronics’ attempt at Georgia Supreme Court review.
The case, Monitronics v. Veasley, involves an $8.4 million verdict against Monitronics stemming from the home invasion and rape of Velma Veasley.
On the day of the invasion, Veasley’s alarm system, which had been taken over by Monitronics, triggered at least five times. In response, Monitronics’ representative called Veasley’s work number twice but hung up when the automated message machine answered, without entering Veasley’s extension or making any other attempt to reach her at work. Monitronics did succeed in reaching the police and Veasley’s sister, who went to Veasley’s home. Finding nothing amiss outside, Veasley’s sister left a note on the garage about the alarms.
Veasley returned from work but did not see the note from her sister. The alarm triggered when she entered the home and Monitronics called her in response. The representative, however, did not tell Veasley about the previous alarms, instead indicating that there must be a problem with the entry delay.
Veasley noticed some things awry in her home–including a cell phone and liquor bottle that didn’t belong to her–but she went about her nightly routine, having dinner and taking a shower. She was later attacked by the knife-wielding stranger while she was getting ready for bed. The man demanded money, and over several hours forced Veasley to drive to several different ATMs. Then, he brought her home and raped her. The man eventually passed out and Veasley was able to escape to call the police.
Veasley sued Monitronics, alleging it was negligent in responding to the alarm. The trial court refused to enforce Monitronics’ contractual limitations of liability or damages, and the case went to trial. The jury awarded Veasley $9 million in damages. The court reduced the damage award to $8.4 million. Monitronics appealed.
The Court of Appeals’ Decision.
On July 16, 2013, the Georgia Court of Appeals issued its decision, upholding the jury’s verdict. Here, in a nutshell are the court of appeals’ salient findings:
– Monitronics owed Veasley a duty apart from the contract, and the evidence was sufficient to find Monitronics was negligent and caused Veasley harm when it talked to Veasley but failed to inform her of the alarms and misinformed her about why the alarm sounded when she entered the home.
-Monitronics’ limitation of liability clause was unenforceable because it was not explicit, prominent, clear and unambiguous.
On that last point, the court explained:
the limitation of liability clause is found on the back of the one-page, two-sided contract …which is titled ‘DAMAGES.’ And rather than being set off in its own paragraph–or even its own subparagraph–the $250 limitation appears toward the end of the second long subsection (e), after a nearly equally long sentence discussing the liability of police or fire departments, and it is far removed from the paragraph 5 title indicating the subject matter of the paragraph. In addition, while the sentence indicating that Monitronics is not liable for incidental or consequential damages is in capitalized typeface, neither the $250 limitation nor the fact that it applies to acts of negligence is capitalized or set off in any unique or prominent way. To the contrary, this important language is written in the same small, single-spaced typeface as the majority of the contract.
Georgia Supreme Court Review?
Monitronics has asked the Georgia Supreme Court to review the Georgia Court of Appeals’ decision. The Georgia Supreme Court has no obligation to review the case and will do so only if it finds the matter if one of gravity or public importance. Veasley’s lawyers are, of course, opposing supreme court review.
I’ve got my eye on this one. Now that the blogging vacation is over, I will let you know how it turns out.
Lessons for You.
The take-away lessons for your alarm business, no matter the outcome of this case, is to make sure your contracts contain plain language (not legalese) and to make sure your limitations of liability are clear and prominent. Stop hiding these things on the back page, in small font. You stand a much better chance of having them enforced if they are front and center, stand out from the rest of the contract, and are plainly written.