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

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 Wn.2d 721, 731,

374 P.3d 1097 (2016).

~ Lyons, 185 Wn.2c1 at 731.

8 Henry Indus., Inc. v. Dept of Labor & Indus., 195 Wn. App. 593, 600, 381 P.3d 172 (2016).

~ Lyons, 185 Wn.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 Wn. App. 745,

749, 662 P.2d 391 (1982)).

i~ at 735-36 (internal quotation marks omitted).

12 Henry, 195 Wn. App. at 602.

13 48 Wn.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 Wn. 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 Wn. 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 Wn. 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 Wn. 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 Wn.2d 186, 192, 298 P.3d 724 (2013).

21 State v. Lilyblad, 163 Wn.2d 1, 6, 177 P.3d 686 (2008).

22 Budget Rent A Car Corp. v. Dept of Licensing, 144 Wn.2d 889, 899, 31 P.3d 1174 (2001).

23 Henry, 195 Wn. App. at 622.

24 Tingey v. Haisch, 159 Wn.2d 652, 664, 152 P.3d 1020 (2007).

25 Evans, 177 Wn.2d at 192-93; Cherry v. Mun. of Metro. Seattle, 116 Wn.2d 794, 799, 808 P.2d

746 (1991).

26 Lyons, 185 Wn.2d at 734 (quoting Dennis v. Dept of Labor & Indus., 109 Wn.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 Wn. 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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No. 78796-9-1/14

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 Wn.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 Wn.2d 1, 5, 154 P.3d 909 (2007).

~ State v. Jacobson, 92 Wn. App. 958, 967, 965 P.2d 1140 (1998).

38 Watson, 160 Wn.2d at 6 (quoting State v. Williams, 144 Wn.2d 197, 203, 26 P.3d 890 (2001)).

~ City of Spokane v. Douglass, 115 Wn.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 Wn.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 Wn.2d 953, 577 P.2d 138 (1978).

~ Id. at 956.

‘~ Id.

~ See Town of Clyde Hill v. Roisen, 111 Wn.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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No. 78796-9-1/18

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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