Delivery Express, Inc. v. Washington State Dept. Of Labor & Industries ( 2019 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
DELIVERY EXPRESS, INC., a ) No. 78796-9-I
Washington corporation, )
) DIVISION ONE
Appellant, )
v. ) PUBLISHED OPINION
)
WASHINGTON STATE DEPARTMENT )
OF LABOR AND INDUSTRIES, )
Respondent. ) FILED: June 10, 2019
ANDRUS, J. — Delivery Express, Inc. (DEl) challenges the Board of Industrial
Insurance Appeals’ (Board) decision that DEl is obligated to pay Industrial
Insurance Act1 (IIA) premiums for some of its drivers. Because substantial
evidence supports the Board’s finding that the essence of the drivers’ independent
contracts with DEl was their personal labor, DEl failed to establish the drivers were
exempt under the leased-truck exemption of ROW 51.08.180, and the drivers’
status as sole proprietors does not exclude them from coverage under ROW
51.12.020, we affirm.
FACTS
DEl provides same-day, next-day, and next-week Seattle delivery service,
1 Title 51 RCW.
No. 78796-9-1/2
including courier, freight, logistics and freight forwarding. It advertises 24-hour on-
call courier services anywhere in Western Washington. When initially founded in
November 1996, DEl obtained a Washington Utilities & Transportation
Commission (WUTC) intrastate common carrier permit, purchased vehicles, and
hired drivers for whom it paid workers’ compensation premiums. In 2000, its
founder, David Hamilton, decided to expand DEl’s business by contracting with
drivers who provided their own vehicles. DEl started using an independent
contractor agreement, under which it “leased” the vehicle and driver and, in return,
paid the driver a commission for each completed delivery. DEl contracted with
drivers of 24-foot box trucks, passenger cars, and ‘everything in between.”
Under the terms of the agreements, the drivers were deemed independent
contractors providing transportation services to DEl customers. Each driver was
required to furnish and operate a vehicle, pay the cost of operating and maintaining
the vehicle, and refrain from competing with DEl for any customer whose freight
the driver transported under a bill of lading issued by DEl. The agreements
identified the vehicle the driver intended to use but did not mandate any size, make,
or model.
DEl uses a dispatcher “app” to notify drivers of available work. Some
drivers have specific routes they drive on a daily basis. Most, however, are “on
demand,” meaning once they download DEl’s app onto their handheld device, they
can log in and wait for a delivery assignment. The on-demand drivers can accept
or reject any specific delivery, although there is scant evidence they ever rejected
a job. The cargo delivered ranged from small items—such as escrow documents
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No. 78796-9-1/3
and other paperwork, blood samples or medical specimens, T-shirts, and computer
hardware—to larger items—such as lumber, raw materials, and non-inventory
stock for grocery and department stores.
In February 2010, the Department of Labor & Industries notified DEl it
intended to conduct an audit for the calendar year 2009 to determine DEl’s
compliance with workers’ compensation laws. By October of that year, the
Department notified DEl that the firm’s independent contractor drivers were
covered workers under the hA. The Department concluded the drivers did not
meet any exemption under either ROW 51 .08.1802 or 51.08.195.~ It notified DEl
that effective July 1, 2010,~ DEl needed to report all driver hours under a risk
classification for ‘parcel delivery.”
Hamilton spoke with the Department auditor, Gina Bautista, by phone and
disagreed with her conclusions. One finding in particular seemed to stick out to
Hamilton—namely, that the drivers rendered the same services as DEl did. Rather
than appeal the decision, DEl decided to change its business model and become
a “freight broker,” rather than a common carrier. On April 20, 2011, DEl ceased
operating as a common carrier when it obtained a freight broker license from the
WUTC and the United States Department of Transportation.
When DEl changed its business model, it asked its drivers to obtain a motor
carrier license from the WUTC and required them to execute new agreements,
2 ROW 51.08.180 defines “worker” as including independent contractors when “the essence of [the
contract] is his or her personal labor.”
~ ROW 51.08.195 excludes independent contractors who meet a six-factor test set out in the
statute.
~ Because this was an educational audit, DEl only owed IA premiums prospectively.
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No. 78796-9-1/4
called broker-carrier agreements. This agreement made no mention of “leasing”
any vehicles. Instead, it identified DEl as the “broker” and the independent
contractor as the “motor carrier.” Under the broker-carrier agreement, the drivers
agreed to “provide motor vehicle equipment with drivers to provide small
package/parcel pick up and delivery service to [DEl’s] shippers and consignees.”
As under the former contractor agreement, the drivers were paid a commission of
each invoice DEl issued to its customers. The covenant not to compete with DEl
also remained the same.
Hamilton believed that by converting DEl’s business model from common
carrier to freight broker, he was bringing the company into compliance with the
Department’s audit because DEl and the drivers would no longer be in the same
line of business. DEl did not pay any lIA premiums for the drivers after it was
notified of the 2009 audit results.
In February 2011, the Department notified DEl it would conduct a second
audit for the calendar year 2010. The Department later modified the audit period
to include only the last two quarters of 2010 and all of 2011. Once again, the
Department determined the drivers were covered workers.
On September 19, 2012, the Department notified DEl that, as a result of the
audit, it was assessing $841 ,639 in workers’ compensation premiums, penalties,
and interest. The Department imposed a penalty of $127,500 for failing to maintain
adequate records under RCW 51 .48.030 and a penalty of $50,000 for “knowingly
and intentionally evad[ing] paying workmen’s compensation insurance.”
No. 78796-9-1/5
DEl sought reconsideration of the Department’s order of assessment. After
receiving and reviewing additional documents from DEl, the Department denied
reconsideration on January 17, 2014. DEl then appealed the Department’s
assessment order to the Board. The Board granted the appeal and referred the
matter to an Industrial Appeals Judge (IAJ) for an evidentiary hearing.
The IAJ conducted the hearing beginning in the autumn of 2014 and
concluding in the summer of 2015, and, in June 2016, issued a proposed decision
and order affirming in part and reversing in part the Department’s assessment
order. The IAJ found that the majority of drivers were not exempt under ROW
51.08.180 or 51.08.195 but found three drivers qualified for an exemption. It
reversed the misrepresentation penalty and affirmed the penalty for failing to
maintain adequate records. Because the Department’s premium calculation
included three drivers whom the IAJ determined should be excluded, the IAJ
remanded the matter to the Department for a recalculation of the premiums DEl
owed.
In September 2016, both parties asked the Board to review the IAJ’s
proposed decision and order. On November 3, 2016, the Board adopted the IAJ’s
decision and order as its own.
DEl filed a petition for judicial review in King County Superior Court, which
affirmed in substantial part the Board’s decision. DEl appeals, arguing that the
drivers are exempt from IIA coverage for all or a portion of the audit period under
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No. 78796-9-1/6
two separate provisions of RCW 51.08.180, or alternatively, as sole proprietors
under RCW 51 .12.020.~
ANALYSIS
The Administrative Procedure Act, chapter 34.05 RCW, governs this court’s
review of the Board’s hA premium assessments.6 RCW 34.05.570(3) provides that
this court may grant relief from an agency order if the agency has erroneously
interpreted or applied the law, or the order is not supported by substantial
evidence. We thus review the Board’s factual findings for substantial evidence7
and view the evidence in the light most favorable to the Department, the party who
prevailed before the Board.8 The Board’s conclusions of law are reviewed de novo,
giving substantial weight to the agency’s interpretation.9
A. ROW 51.08.180
DEl contends the Board erred in finding that the drivers are ‘workers” under
two separate provisions of ROW 51.08.180. This statute extends IIA coverage to:
every person in this state who is engaged in the employment of or
who is working under an independent contract, the essence of which
is his or her personal labor for an employer under this
title,. ..PROVIDED, That a person is not a worker for the purpose
of this title, with respect to his or her activities attendant to operating
a truck which he or she owns, and which is leased to a common or
contract carrier.
~ DEl does not appeal the Board’s determination that the drivers do not qualify under the statutory
exemption for independent contractors in RCW 51.08.195.
6 RCW 51.48.131; see also Dept of Labor & lndus. v. Lyons Enters., Inc., 185 Wash. 2d 721, 731,
374 P.3d 1097 (2016).
~ Lyons, 185 Wn.2c1 at 731.
8 Henry Indus., Inc. v. Dept of Labor & Indus., 195 Wash. App. 593, 600, 381 P.3d 172 (2016).
~ Lyons, 185 Wash. 2d at 732.
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No. 78796-9-1/7
The Board found that personal labor for delivering items was the essence of the
contract between DEl and most of its drivers, and that these drivers were workers”
covered by the lIA. The Board also found the drivers did not lease their vehicles
to DEl, making the leased-truck exemption inapplicable.
DEl challenges the factual basis for the Board’s “essence of the contract”
finding and the Board’s failure to define the word “truck” under the leased-truck
exemption.
1. “Essence of the Contract”—the White Test
To determine whether the essence of a contract is personal labor, this court
looks “to the contract, the work to be done, the situation of the parties, and other
attendant circumstances.”1° The court focuses on the realities of the situation.11
Whether a particular individual isa “worker” under this provision ofRCW5I.08.180
is a mixed question of law and fact.12
In White v. Department of Labor & Industries,13 the Supreme Court held that
personal labor is ~ the essence of a contract with an independent contractor
(1) when the independent contractor owns or supplies machinery or equipment (as
distinguished from the usual hand tools) to perform the contract; (2) when the
independent contractor cannot perform the contract without assistance; and
10 j~.. at 735 (quoting Lloyd’s of Yakima Floor Cen. v. De~’t of Labor & Indus., 33 Wash. App. 745,
749, 662 P.2d 391 (1982)).
i~ at 735-36 (internal quotation marks omitted).
12 Henry, 195 Wash. App. at 602.
13 48 Wash. 2d 470, 294 P.2d 650 (1956).
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No. 78796-9-1/8
(3) when the independent contractor either chooses to or must employ others to
do all or part of the work he or she has contracted to perform.14
This court held in Henry Industries, Inc. v. Department of Labor &
Industries,15 a factually analogous case, that a courier service company’s
independent contracting drivers were workers under RCW 51.08.180 because
vehicles they used to deliver packages were not specialized equipment needed to
perform the contracted work.16 As in Henry, there is substantial evidence
supporting the Board’s finding that the drivers’ personal labor is the essence of the
agreements between DEl and the drivers. The primary object is not the machinery
the drivers own; it is the service of driving packages from point A to point B.
First, paragraph I of the contractor agreement and paragraph 4 of the
broker-carrier agreement identify the purpose of the agreements as providing
delivery or transportation services. The drivers testified that their full time “job”
was delivering packages for DEl, that DEl required them to log in on a regular
basis, that they logged in early in the morning and remained available the entire
day, that they drove eight hours a day, Monday through Friday, for DEl, and that
they never hired anyone or asked anyone to help with the deliveries, or asked
anyone to log in on their behalf when they were not available. This evidence
supports a finding that the work DEl needed was the labor of driving from one
location to another to pick up and drop off packages.
~ kL at 474.
15 195 Wash. App. 593, 381 P.3d 172 (2016).
16 i≤L at 609. This court concluded there was “no persuasive argument that the vehicles the drivers
are required to provide constitute special equipment, as opposed to ordinary equipment, to perform
the courier services under the agreements.” Pd. at 608.
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No. 78796-9-1/9
Second, neither the contractor agreements nor the broker-carrier
agreements specified that the drivers had to provide any particular type of vehicle.
The majority of drivers used small passenger cars, such as Toyota Yaris, Corolla,
Scion and Prius, Subaru Legacy, Honda Fit, Ford Focus, Chevrolet Cavalier, Kia
Rio, Nissan Maxima, Hyundai Elantra, and Nissan Versa. As the court in Henry
noted, these types of vehicles are not the “necessary machinery or equipment’
which, under White, would take this agreement outside the operation of the IIA.”17
Third, the contractor agreements imposed appearance and conduct
requirements on the drivers. For example, the agreement required the drivers to
“conduct themselves courteously (both on the road and while with customers) and
in a professional manner.” They were required to be “neatly attired” and to wear
“clean and wrinkle free” uniforms. Hair had to be “clean, neat and conservatively
styled,” and any mustaches or beards had to be “neatly trimmed.” These
appearance and behavior provisions are evidence that DEl placed more emphasis
on how the drivers interacted with its customers than it did on the equipment the
drivers used.
Finally, both the contractor agreements and the broker-carrier agreements
contain non-compete clauses that limit the drivers’ ability to solicit business from
DEl customers, both during the term of the agreement and for 6 to 12 months
thereafter. Such a clause is another strong indication that DEl entered into a
contract with the driver for his or her personal skills at delivering packages in an
efficient manner, rather than simply leasing a vehicle to effectuate deliveries.
17 j~.. at 611 (quoting Lloyd’s, 33 Wash. App. at 751).
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No. 78796-9-1/10
This evidence provides substantial support for the Board’s finding that the
drivers’ personal labor was the essence of their contracts with DEl.
2. Leased-Truck Exemption
Next, DEl contends the Board erred in refusing to define the word “truck” as
used in the leased-truck exemption of RCW 51.08.180. It also argues the
leased-truck provision is unconstitutionally vague. We reject both arguments.
a. Meaning of “Operating a Truck”
The IAJ noted, in its discussion of the White test, that DEl “pressed for a
definition of a truck.” The IAJ wrote, “I do not need to and will not define a truck in
this opinion,” because the definition was unnecessary to determine whether the
vehicles were specialized equipment under White. Neither the IAJ nor the Board
specifically addressed the term as used in the leased-truck exemption. We agree
with DEl that the Board’s decision did not address the leased-truck exemption and
focused solely on the “essence of the contract” portion of RCW 51.08.180.
Nevertheless, we disagree with DEl that any of the passenger cars used by its
courier drivers are “trucks” under this clause.18
To trigger the leased-truck exemption, DEl had to prove (1) the drivers’
activities were “attendant to operating a truck,” (2) which the drivers owned, and
(3) which the drivers leased to a common carrier.19 We must determine, according
18 Statutory interpretation is a question of law, reviewed de novo. Id. at 622; see also Green v.
Dept of Soc. & Health Servs., 163 Wash. App. 494, 508, 260 P.3d 254 (2011) (“Under ROW
34.05.570(3)(d), the APA’s ‘error of law’ standard, we may substitute our interpretation of the law
for the agency’s.”).
19 ROW 51.08.180; see also B&R Sales, Inc. v. Dept of Labor & Indus., 186 Wash. App. 367, 375,
344 P.3d 741 (2015) (employer has burden of showing IlA premiums assessed incorrectly). DEl
concedes this provision would only apply to the period during which it held a common carrier permit
and became inapplicable once DEl began doing business as a freight broker in April 2011.
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No. 78796-9-Ill I
to established principles of statutory interpretation, whether ‘operating a truck”
extends to delivering small packages via a passenger vehicle.
The purpose of statutory interpretation is to determine and give effect to the
intent of the legislature.2° Phrases in a statute are given their plain and ordinary
meaning absent a contrary statutory definition.21 We may refer to dictionaries to
ascertain the common meaning of statutory language.22 We must also consider
the statute as a whole and harmonize its provisions by reading them in context
with related provisions.23 We presume the legislature does not intend absurd
results, and we will reject any reading of a phrase that produces an absurd result.24
Only if more than one interpretation of the plain language is reasonable, do we find
a statute ambiguous and engage in statutory construction and consider the
statute’s legislative history.25 Finally, a guiding principle of interpreting lIA
provisions is to liberally construe the remedial statute “to achieve its purpose of
providing compensation to all covered employees injured in their employment,”
with all doubts resolved in favor of coverage of the worker.26
concedes this provision would only apply to the period during which it held a common carrier permit
and became inapplicable once DEl began doing business as a freight broker in April 2011.
20 State v. Evans, 177 Wash. 2d 186, 192, 298 P.3d 724 (2013).
21 State v. Lilyblad, 163 Wash. 2d 1, 6, 177 P.3d 686 (2008).
22 Budget Rent A Car Corp. v. Dept of Licensing, 144 Wash. 2d 889, 899, 31 P.3d 1174 (2001).
23 Henry, 195 Wash. App. at 622.
24 Tingey v. Haisch, 159 Wash. 2d 652, 664, 152 P.3d 1020 (2007).
25 Evans, 177 Wash. 2d at 192-93; Cherry v. Mun. of Metro. Seattle, 116 Wash. 2d 794, 799, 808 P.2d
746 (1991).
26 Lyons, 185 Wash. 2d at 734 (quoting Dennis v. Dept of Labor & Indus., 109 Wash. 2d 467, 470, 745
P.2d 1295 (1987)).
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No. 78796-9-1112
DEl urges this court to adopt a broad definition of “truck” as that term is
defined in our licensing statutes. Under RCW 46.04.653, “truck” means “every
motor vehicle designed, used, or maintained primarily for the transportation of
property.” DEl contends the vehicles its drivers used, although not designed to
transport property, were nevertheless primarily used for that purpose and thus
should be deemed “trucks” under ROW 51.08.180. We reject this argument
because it ignores the ordinary meaning of truck, it takes the word “truck” out of
the context in which the legislature used it, it is based on a logical fallacy, and it
would lead to an absurd result.
First, the dictionary definition of “truck” is either “an automotive vehicle built
for the transportation of goods on its own chassis,” or “a motorized vehicle
equipped with a swivel for hauling a trailer.”27 Under the ordinary definition, if the
vehicle has a chassis designed to transport property or has a swivel to pull a trailer
to transport property, it is a truck within the meaning of ROW 51.08.180. The
passenger cars, SUVs, and minivans driven by DEl’s couriers clearly fall outside
this definition of truck, whereas box trucks and pickup trucks would fit within it.
Second, the leased-truck exemption must be read in the context in which it
occurs. RCW 51.08.180 refers to “trucks” leased to “common carriers.” A
“common carrier” is any person who undertakes to transport property for the
general public “by motor vehicle for compensation.”28 A “motor vehicle” is defined
as “any truck, trailer, semitrailer, tractor, . . . ~ any self-propelled or motor-driven
27 WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2454 (2002).
28 RCW 81.80.010(1).
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No. 78796-9-1/13
vehicle used upon any public highway of this state for the purpose of transporting
property, but not including baggage. “29 If the legislature had intended ROW
51.08.180’s leased-truck exemption to encompass all motor vehicles, it could have
simply said so. By singling out trucks for the hA exemption, the legislature must
have intended to narrow its application to a particular subset of motor vehicles that
common carriers use to move freight.3° Applying the dictionary definition is
consistent with this legislative intent. It is also consistent with the well-established
principle that the hA is liberally construed to protect more workers.
Third, DEl’s argument is based on the logical fallacy that because all trucks
are motor vehicles that can be used to transport property, and passenger cars are
motor vehicles that can be used to transport property, then all passenger cars must
be trucks. This argument is a classic non sequitur, known as the fallacy of the
undistributed middle:31
All trucks [Z] can be used to transport property [B]
A passenger car [Y] can be used to transport property [B]
Therefore, all passenger cars [Y] are trucks [Z]32
The result is a logical fallacy.33
29 RCW 81.80.010(7) (emphasis added).
30 See Filmore LLLP v. Unit Owners Ass’n of Centre Pointe Condo., 183 Wash. App. 328, 344, 333
P.3d 498 (2014) (undefined common statutory terms are given their common meaning unless there
is strong evidence the legislature intended something else).
31 See generally Stephen M. Rice, Indispensable Logic: Using the Logical Fallacy of the
Undistributed Middle as a Litigation Tool, 43 Akron L. Rev. 79, 89-101 (2010).
32 See Allied Erecting & Dismantling, Co. v. USX Corp., 249 F.3d 191, 202 n.1 (3d Cir. 2001).
~ Aylett v. Sec’y of Hous. & Urban Dev., 54 F.3d 1560, 1569 & n.5 (10th Cir. 1995); see also
Spencer v. Texas, 385 U.S. 554, 578-79 & n.9, 87 S. Ct. 648, 17 L. Ed. 2d 606 (1967) (Warren,
C.J., dissenting and concurring).
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Finally, DEl’s argument that we should define a “truck” as any motor vehicle
that could be used to transport any type of property would lead to an absurd result.
Under this approach, any small passenger car or even a motorcycle would qualify.
Common sense must inform our analysis,34 and common sense tells us no ordinary
person would consider a motorcycle, a Toyota Yaris, or a Chevy Malibu to be a
truck.
We hold that RCW 51 .08.180’s leased-truck exemption applies only to a
motor vehicle built to transport goods on its own chassis or to a motor vehicle
equipped with a swivel for hauling a trailer to transport goods.
Using this definition, none of the drivers the Board deemed “workers” under
the IlA, with the exception of two, drove trucks to deliver packages for DEl. Two
individuals, Matin Syed and Randall Utterback, testified they drove pickup trucks
to make deliveries for DEl. Syed drove a 2000 Ford Ranger, a vehicle with a
pickup bed, which he used in 2009 and 2010. Utterback drove a Chevy pickup
truck with a canopy for DEl business in 2010. The Board included Syed and
Utterback in the list of drivers for whom DEl owes IA premiums for the last two
quarters of 2010, and excluded these same drivers from the list for 2011 under
RCW 51.08.195. Thus, the only time period for which the leased-truck exemption
could be relevant for Syed and Utterback is the last two quarters of 2010.
But neither Syed’s nor Utterback’s contractor agreement during 2010 is in
the record. DEl offered Exhibit 284, a contractor agreement between Syed and
DEl, and Exhibit 321, a contractor agreement between Utterback and DEl. But the
~ State v. Alvarado, 164 Wash. 2d 556, 562, 192 P.3d 345 (2008).
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No. 78796-9-1115
IAJ excluded Syed’s agreement because DEl did not produce it during the
Department’s audit. And the IAJ rejected Utterback’s agreement after the hearing.
We thus have no agreement to examine to determine if it constituted a truck lease.
Furthermore, Utterback testified he never leased his truck to DEl. And even if
Syed’s agreement had been admitted, it lists a 2005 Honda as Syed’s “equipment,”
not a 2000 Ford Ranger.35 Thus, based on this record, DEl failed to establish that
Syed or Utterback met the leased-truck exemption during the last two quarters of
2010.
b. Constitutionality of Leased-Truck Exemption
DEl contends the leased-truck exemption is unconstitutionally vague. We
disagree. Whether a statute is constitutional is a question of law, reviewed de
novo.36 Statutes are presumed constitutional.37 Under the due process clause of
the Fourteenth Amendment of the United States Constitution, RCW 51 .08.180 is
unconstitutionally vague if DEl demonstrates that the statute “does not provide
ascertainable standards . . . to protect against arbitrary enforcement.”38 But due
to the inherently vague nature of language, courts do not require “impossible
standards of specificity.”39 Constitutional vagueness is “not mere uncertainty.”40
~ In addition, exhibits that were admitted for Syed—his Washington State vehicle registration and
his certificate of liability insurance—both show a 2006 Mitsubishi Lancer, a passenger car.
36 State v. Watson, 160 Wash. 2d 1, 5, 154 P.3d 909 (2007).
~ State v. Jacobson, 92 Wash. App. 958, 967, 965 P.2d 1140 (1998).
38 Watson, 160 Wash. 2d at 6 (quoting State v. Williams, 144 Wash. 2d 197, 203, 26 P.3d 890 (2001)).
~ City of Spokane v. Douglass, 115 Wash. 2d 171, 179, 795 P.2d 693 (1990).
40 Id.
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A statute is unconstitutionally vague only “if persons of common intelligence must
necessarily guess at its meaning and differ as to its application.”41
DEl argues that it was subject to arbitrary enforcement by the Department
because its auditors defined the term “truck” differently. The record does not bear
this out. When DEl asked Bautista how she defined the word truck, she testified
she searched the Federal Motor Carrier Safety Administration’s online software
program to see if any of DEl’s drivers were listed as owning a truck. Bautista also
attempted to contact individual drivers to ask them if they drove trucks to deliver
packages. Finally, she searched the Washington State Department of Motor
Vehicle Licensing website to determine if any drivers had vehicle registrations for
any trucks.
Eliezar Eidenbom, the Department litigation specialist who handled DEl’s
requested reconsideration of the 2010-2011 audit, used what he called “a common
definition of truck,” which he defined as a motor vehicle designed to carry cargo.
Eidenbom concluded that vans, SUVs, and minivans were not “trucks” because
they were designed to carry passengers, not to carry loads. Eidenbom considered
a pickup truck to fall within the statutory exemption and would also consider a cargo
van to do so, if the van was designed for carrying freight and heavy loads and had
its passenger seats removed to allow for loading property.
Both Bautisa and Eidenbom applied a definition consistent with this court’s
statutory interpretation. We can find nothing arbitrary about the approach they
41 City of Seattle v. Webster, 115 Wash. 2d 635, 643, 802 P.2d 1333 (1990).
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No. 78796-9-1/17
took. Nor can we conclude that a person of ordinary intelligence must guess
whether a vehicle is a truck.
DEl relies on Grant County v. Bohne,42 to argue that RCW 51 .08.180’s
leased-truck exemption is unconstitutionally vague. We find that case
distinguishable. In Bohne, the Court considered whether a zoning ordinance,
which provided that “[nb buildings [may] be moved in on any lot in this district,”
was unconstitutionally vague.43 Grant County claimed the Bohnes violated the
ordinance by placing a mobile home on their lot. The Court held the ordinance
was unconstitutionally vague because persons of average intellect would expect a
prohibition against mobile homes to specifically refer to mobile homes.44 But this
case before us is dissimilar; people have an understanding of what a truck is.
There is no guesswork needed to ascertain the meaning of this word.45 Unlike the
“building” versus “mobile home” distinction in Bohne, the average person would
not think that a two-door or four-door passenger vehicle is a “truck.” The leased-
truck exemption is not unconstitutionally vague.
B. RCW51.12.020
Finally, DEl claims the Board erred in concluding that drivers who ran a
courier business as sole proprietors were not statutorily excluded from the IIA
42 89 Wash. 2d 953, 577 P.2d 138 (1978).
~ Id. at 956.
‘~ Id.
~ See Town of Clyde Hill v. Roisen, 111 Wash. 2d 912, 919, 767 P.2d 1375 (1989) (distinguishing
Bohne, concluding people do have a basis in common practice and understanding for knowing
what a ‘fence” is).
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under RCW 51.12.020. This argument was rejected in Henry, and we see no basis
for revisiting the issue here.
RCW 51.12.020(5) provides that sole proprietors are not included within the
IlA’s mandatory coverage. In Henry, the company argued that this statutory
provision categorically exempted it from paying hA premiums for drivers if those
drivers operated their own businesses as sole proprietors.46 This court held that
because neither RCW 51.08.180 nor ROW 51.08.195 referenced ROW
51.12.020’s exclusions,
the most reasonable way to harmonize interpretation of these three
statutes is to conclude that the legislature intended to include within
the scope of “worker” those sole proprietors who met RCW
51.08.180’s requirements and who were not excluded by ROW
51.08.195. Thus, even though a person may choose to set up his or
her business as a sole proprietorship, that alone does not exclude
that person from hA coverage as a “worker.” No other interpretation
of these statutes makes sense.47
DEl’s interpretation of ROW 51.12.020 is inconsistent with Henry. The DEl drivers
who set up businesses as sole proprietors are not automatically excluded from IIA
coverage by virtue of ROW 51.12.020.
CONCLUSION
We affirm the Board’s finding that, during the audit period, the drivers
identified in Findings of Fact No. 3 and No. 4 of the Board’s order are “workers”
under ROW 51.08.180. The record supports the Board’s finding that the essence
of their contracts with DEl was their personal labor. DEl failed to establish that any
of these drivers, with the exception of two, operated trucks and failed to establish
~ 195Wn. App. at 621.
ki. at 623-24.
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No. 78796-9-1/19
that these two drivers leased their vehicles to DEl. Thus, the leased-truck
exemption is not applicable. Finally, RCW 51.12.020’s “sole proprietor” exclusion
does not alleviate DEl’s liability for worker compensation premiums for drivers who
are “workers” under RCW 51 .08.180.
We affirm.
WE CONCUR:
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