Martin

*918 Opinion

Plaintiff, William J. Martin, and intervener, Hartford Accident and Indemnity Company, appeal from a judgment rendered by the court in the first part of what was scheduled to be a bifurcated trial. The judgment, in favor of Phillips Petroleum Company, defendant, is based on the conclusion that Martin was a special employee of the defendant at the time he allegedly sustained injuries referred to in his complaint. The Hartford Company, as workmen’s compensation insurance carrier for Plant Maintenance, Inc., has paid all of the benefits required by the Labor Code. Plant Maintenance surely was the general employer of Martin, and it is contended by appellants that it was his sole employer. If the court’s finding and conclusion that Phillips was Martin’s special employer at the time of the asserted injury be correct, it follows that plaintiff may not have damages by means of this personal injury action against Phillips. (Lab. Code, § 3601; Sehrt v. Howard, 187 Cal.App.2d 739 [ 10 Cal.Rptr. 128 ]; Oxford v. Signal Oil & Gas Co., 12 Cal.App.3d 403 [ 90 Cal.Rptr. 700 ]; McFarland v. Voorheis-Trindle Co., 52 Cal.2d 698, 702 [ 343 P.2d 923 ].) On the other hand, he would be…

Appellant Martin, an employee of Plant Maintenance, filed a complaint alleging that he sustained personal injuries as the result of Phillips’ negligence while working on its property. Phillips denied negligence and, as a special defense, alleged that at the time of the accident Martin was the special employee of Phillips. The majority of this court affirmed the trial court’s judgment that Martin was a special employee of Phillips and as such was barred from maintaining an action for damages for personal injuries. The burden of proving the affirmative defense of “special employment” was, of course, upon Phillips who asserted it.

Whether the special employment relationship existed in the present case is dependent upon the facts. As the facts here are undisputed, the ultimate conclusion to be drawn from these facts is a question of law for the appellate courts. (Morrison v. State Board of Education (1969) 1 Cal.3d 214, 238 [ 82 Cal.Rptr. 175 , 461 P.2d 375 ]; Jones v. Workmen’s Comp. Appeals Bd. (1971) 20 Cal.App.3d 124, 127 [ 97 Cal.Rptr. 554 ]; Rullman v. State Farm Mut. Automobile Ins. Co. (1970) 8 Cal.App.3d 606, 609 [ 87 Cal.Rptr. 551 ].)

The majority in arriving at their…

Leonard & Thomas for Intervener and Appellant.

Gordon, Waltz & DeFraga, Allan DeFraga and James A. Pezzaglia for Defendant and Respondent.

OPINION

DEVINE, J. [*]

Plaintiff, William J. Martin, and intervener, Hartford Accident and Indemnity Company, appeal from a judgment rendered by the court in the first part of what was scheduled to be a bifurcated trial. The judgment, in favor of Phillips Petroleum Company, defendant, is based on the conclusion that Martin was a special employee of the defendant at the time he allegedly sustained injuries referred to in his complaint. The Hartford Company, as workmen's compensation insurance carrier for Plant Maintenance, Inc., has paid all of the benefits required by the Labor Code. Plant Maintenance surely was the general employer of Martin, and it is contended by appellants that it was his sole employer. If the court's finding and conclusion that Phillips was Martin's special employer at the time of the asserted injury be correct, it follows that plaintiff may not have damages by means of this personal injury action against Phillips. (Lab. Code, § 3601; Sehrt v. Howard, 187 Cal. App.2d 739 [ 10 Cal. Rptr. 128 ]; Oxford v. Signal Oil &…