Southern California 7- 11 Franchise Owners Association June 8, 2016 - PowerPoint PPT Presentation

Southern California 7- 11 Franchise Owners’ Association June 8, 2016 Presented by: John Barbot

Dangers of Assault Claims

Documents:  Labor Code Section 3600(a)(7)  Exhibit C – 7-Eleven Contractual Indemnification  Conditions, Exclusion and Limitations  Location CAP Index Crime Information  Crime Classifications Explanations

Labor Code Section 3600(a)(7)  Where the injury does not arise out of an altercation in which the injured employee is the initial physical aggressor.  Somewhat convoluted lawyer speak that essentially says benefits are due if the injured employee is NOT the initial aggressor. Thus, conversely, if the employee is the initial aggressor, NO benefits due. Not that the initial aggressor does not necessarily have to be the first person to strike a blow or initiate physical contact. If the employee approaches another person in a manner that places the other in "reasonable fear of bodily harm" then the employee could be deemed the initial aggressor even if they have not actually physically struck out first. The initial aggressor is the "first person engaging in conduct that could reasonably be construed as conduct amounting to the legal definition of an assault".

Exhibit C 7-Eleven Contractual Indemnification  THIS IS NOT AN INSURANCE BINDER, CERTIFICATE, OR POLICY. YOU ARE NOT OUR INSURED AND YOU DO NOT HAVE THE PROTECTIONS OR RIGHTS UNDER THIS INDEMNITY AGREEMENT NORMALLY ASSOCIATED WITH AN INSURED VIS-A-VIS AN INSURER. THEREFORE, THIS EXHIBIT C IS A. CONTRACTUAL INDEMNITY ONLY. IT IS YOUR RESPONSIBILITY TO DECIDE WHETHER YOUR INTERESTS ARE BEST SERVED THROUGH THIS INDEMNIFICATION OR BY INSURANCE IN ACCORDANCE WITH PARAGRAPH 18 OF THE STORE FRANCHISE AGREEMENT WE ENCOURAGE YOU TO CONSULT AN ATTORNEY, INSURANCE AGENT, BROKER OR OTHER INDUSTRY EXPERT TO ASSIST YOU IN MAKING THAT DETERMINATION.

Exhibit C 7-Eleven Contractual Indemnification - Conditions , Exclusions and Limitations:   You will not be indemnified under this Franchise Agreement under the following instances and/or circumstances: 7 . If the loss is caused by, results from, or occurs in connection with, an intentional act committed by you or by your agent or employee. For purposes of this Agreement, a loss will be deemed to have been caused by an intentional act if at the time the act was committed, you or your employee or agent knew that the loss would result from the act or if the loss was a reasonably foreseeable consequence of the act. This exclusion will not apply when the intentional act was determined to have been justified as self-defense or defense of another person by a court of competent jurisdiction.

Crime Index  Crime Index Range: 0 – Low, 10 – High Current Past Forecasted CAP Index 10 10 10 Arson 10 10 10 Motor Vehicle theft 10 10 10 Robbery 10 10 10 Aggravated Assault 8 8 8 Burglary 5 5 5 Homicide 7 8 7

Crime Index (continued)  Crime Index Range: 0 – Low, 10 – High Current Past Forecasted Rape 9 9 9 Larceny 8 10 8 Aggregated crimes against Persons: 10 9 10 Aggregated crimes against Property: 8 10 9

Crime Index (continued)  Crime Classification Explanation:  Crime Score Description.  Class 1 less than 1/5 of the national average  Class 2 1/5 to 1/4 of the national average  Class 3 1/4 to 1/3 of the national average  Class 4 1/3 to 1/2 of the national average  Class 5 1/2 to 1 times the national average

Crime Index (continued)  Crime Classification Explanation:  Crime Score Description.  Class 6 1 to 2 times the national average  Class 7 2 to 3 times the national average  Class 8 3 to 4 times the national average  Class 9 4 to 5 times the national average  Class 10 5 or more times the national average

“Serious” Types of 7 -Eleven Crimes  Assaults  Lifting  Slip and Fall  Cumulative Trauma  Others

Assaults May Prove Costlier to Franchisee  Why?

People Involved:  Guests  Employees  Franchisee

Fight Ensues Between Associate & Guest: 1. Guest can be initiator – criminal 2. Victim – sues franchisee A. Indemnity – face intentional act exclusion – franchisee on his/her own B. Outside insurance – will defend franchisee & will pay as long as employee’s acts are not premeditated . 3. Crime index could be damning

Associate injured by guest. Will Workers’ Compensation cover injury? 1. Initiator Problem: Labor Code Section 3600(a)(7) A. 2. Victim – Workers’ Compensation 3. Willful & Serious

Conclusion :  Only bad things happen when you leave the counter!