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WAS IT AN ACCIDENT OR INTENTIONAL MISCONDUCT

November 23, 2012 – Insurance

If the actions of the insured were accidental it is covered, but if the actions were intentional, it is not covered. A deliberately pushes or shoves B. A’s actions are intentional and not covered

What if A intentionally pushes B but does not intend to injure him.

Are A’s actions covered by his insurance policy as an accident?

 

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CAN INSURANCE BROKERS AVOID LIABILITY FOR ADVICE THEY PROVIDE INSUREDS BY CLAIMING THE INSURED FAILED TO READ THE POLICY?

November 23, 2012 – Insurance

NO. An insured’s failure to read his policy does not….. render the insured’s reliance on the agents advice unjustifiable as a matter of law.

Clemment v. Smith 16 Cal. App.4th45 Hobbs. V. Ins Serv.of California, Inc. 177 Cal.App.4th 624

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EMPLOYERS DUTY TO INVESTIGATE HARASSMENT AND DISCRIMINATION CLAIMS

November 23, 2012 – Employment Law

Once the employer knows or should know about inappropriate behavior, it has a duty to take immediate and appropriate corrective action.

Employers who promptly and seriously investigate accusations of wrong doing in the workplace fare much better in court than those who don’t.

The failure to investigate may amount to employer ratification of the underlying conduct.

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EMPLOYERS SHOULD BE VERY CAREFUL WHEN HIRING AN EMPLOYEE AWAY FROM ANOTHER COMPANY.

November 23, 2012 – Employment Law

IF FOR ANY REASON THE EMPLOYEE DOES NOT WORK OUT AND NEEDS TO BE TERMINATED THE EMPLOYER IS OPEN TO A LAWSUIT WITH LARGE POTENTIAL DAMAGES.

In the case of Helmer v. Bingham Isuza the employee sued the employer claiming the employer had falsely promised employee salary and benefits inducing the employee to leave his existing employment. When the employee insisted on the promised salary he was terminated. At trial the jury found in the employees favor awarding $450,913.00 in lost wages and 1.5 million in punitive damages.

On appeal the court upheld the verdict. The Court stated “We hold that future lost income is recoverable by an employee pursuing a claim of promissory fraud against an employer who induces him to leave secure employment by knowingly making false promises regarding the terms of his future employment”

The damages were high because the jury believed that the employer had knowingly made false promises regarding the salary, thereby raising an issue of fraud.

UNLESS THE EMPLOYER INTENDS TO OFFER A WRITTEN CONTRACT OF EMPLOYMENT, WHEN HIRING AN EMPLOYEE AWAY FROM ANOTHER COMPANY SUCH EMPLOYEE, SHOULD BE ASKED TO SIGN A DOCUMENT ACKNOWLEDGING AMONG OTHER THINGS THAT THE EMPLOYMENT IS ONE AT WILL AND THAT NO PROMISES OF SALARY OR OTHER BENEFITS HAVE BEEN MADE TO INDUCE HIM OR HER TO LEAVE HER THEN EXISTING EMPLOYMENT.

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California Labor Law for Employers – Our Specialty

November 23, 2012 – Employment Law

Serving California employers with business employment and labor related legal matters.

Specializing in employers’ labor law in California on behalf of Employers.

Sheldon Rosenfeld – 800-281-0041, 818-981-4100

In the Employers Corner
16530 Ventura Blvd. Suite 208
Encino, CA 91436

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EMPLOYMENT LAW

December 1, 2012 – Employment Law

Suit was filed against the Domino Pizza franchise y a teenage employee who claimed she was sexually assaulted an harassment by a manager assistant during employment. She named in the suit the franchisee owner and the assistant manager who assaulted her as well as the franchisor, Dominos.

Dominos the franchisor, argued that by the terms of the franchise agreement, the franchisee was an independent contractor responsible for hiring supervising and paying the persons who worked in the store and Dominos had no role in the franchisee’s employment decisions.

The Court held that the franchisor could be held liable dispute these defenses. The Court considered all the other controls that the franchisor held over the franchisee and concluded that the franchisee could be found not to be an independent contractor.

The Court further concluded that the agreement to arbitrate did not apply because it was not a separate document from the employment handbook which claimed there was no written agreements.

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IS A PARTY TO A BUSINESS AGREEMENT LIABLE IF HE MAKES A FALSE PROMISE THAT IS NOT IN WRITING

November 23, 2012 – Business Law

Promissory Fraud A promise made without any intention of performing it.

If the false intention can be proved there is liability for the false promise even if not in writing.

Example: As part of a business agreement one party promises the other to attend and manage company corporate meetings during a period of time that he knows he will be out of the country.

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WHEN DOES A PARTY TO A BUSINESS AGREEMENT HAVE A DUTY TO DISCLOSE FACTS TO THE OTHER PARTY

November 23, 2012 – Business Law

Breach of Fiduciary Duty Any relationship existing between parties to an transaction wherein one of the parties is in duty bound to act with the utmost good faith for the benefit of the other party.

One such relationship is that of agency

“Every agent owes his principal the duty of undivided loyalty. During the course of his agency, he may not undertake or participate in activities adverse to the interests of his principal…”

An agent is free to engage in competition with his principal after termination of his employment but he may plan and develop his competitive enterprise during the course of his agency only where the particular activity engaged in is not against the best interests of his principal…” (Sequoia Vacuum Systems v. Stransky)

Examples of Other Fiduciary Relationships

Real Estate Agent/Broker and Client; Stock Broker and Customer; Attorney and Client;

Partners; Joint Ventures; controlling shareholders and minority shareholders;

Corporate officers and directors on one hand and corporation and its shareholders on the other

Husband and wife with respect to the couple’s community property

Trustee and trust beneficiary; guardian and ward; pension fund trustee and pensioner beneficiary;

Executor and decedent’s estate; trustee and trust beneficiaries.

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NON COMPETITION AGREEMENT

November 23, 2012 – Business Law

CAN A BUSINESS OWNER ENFORCE A REASONABLE NON COMPETITION AGREEMENT WITH A FORMER EMPLOYEE?

An agreement by a former employee not to compete when he leaves the business’s employment is enforceable only in 3 situations. If the agreement is in connection with the sale of the business, or the dissolution or termination of a partnership, or dissolution or the termination of an interest in a limited liability company. (California Business and Professions Code Section 16600 – Edwards v. Arthur Anderson)