Andrews International assigned its employee Steven Paul Picazzo to work at Loyola Marymount University as a security officer between 2006 and 2013. In August 2013, LMU was erecting a new building on campus. C.W. Driver, Inc., was the project’s general contractor.

While on duty, Picazzo suffered a spinal cord injury when he tripped and struck his head against a railing at the construction site. He is now a quadriplegic. Andrews’s workers’ compensation carrier, Liberty Insurance Corporation, paid benefits to Picazzo.

Picazzo sued, among others, the general contractor Driver for negligence and for premises liability. LMU was not a named defendant. Liberty filed a complaint in intervention seeking reimbursement from any third party tortfeasor for benefits Liberty had paid. At trial, Liberty stipulated that it paid $2,849,209.62 in benefits to Picazzo.

The matter was tried by a jury, which found Driver, LMU, Picazzo, and Andrews negligent. However, the jury also found that Andrews’s negligence was not a substantial factor in causing harm to Picazzo, and therefore Andrews was not liable for damages. The jury awarded Picazzo total damages of $16,322,950.62

The jury allocated responsibility for the harm to Picazzo as follows: 40 percent to Driver, 15 percent to Picazzo, 45 percent to LMU, and zero percent to Andrews.

After trial, Driver moved to void Liberty’s lien on the theory LMU had a special employment relationship with Picazzo. Under this theory, if LMU specially employed Picazzo and the benefits Liberty paid were also paid on LMU’s behalf, then Liberty was not entitled to recover, as LMU was 45 percent at fault.

Liberty opposed the motion on the ground that whether LMU was Picazzo’s special employer was not submitted to the jury.

The trial court found against Liberty. Given what the trial court called Liberty’s “virtual admission” at trial that LMU was Picazzo’s special employer, the trial court found that Liberty’s lien should be reduced by the amount of LMU’s fault. Thus, the lien was wholly offset by LMU’s negligence, and Liberty recovered nothing on its lien from Driver.

Liberty appealed and the Court of Appeal reversed the judgment against Liberty on its complaint in intervention in the unpublished case of Picazzo v. C.W. Driver, Inc.

Whether a special employment relationship exists is generally a question of fact reserved for the trier of fact. (Kowalski, supra, 23 Cal.3d at p. 175; Wedeck v. Unocal Corp. (1997) 59 Cal.App.4th 848, 857.) Hence, the jury should have decided the issue.

Even if the trial court, rather than the jury, properly decided the special employer issue, the Court of Appeal still could not uphold the trial court’s ruling. That is, the trial court did not make its finding based on evidence that LMU specially employed Picazzo. Rather, the trial court based its finding of special employment on Liberty’s supposed “virtual admission” to that fact. However, there was no such admission.