IN THE COURT OFAPPEALS FOR THE STATE OFWASHINGTON

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) challengesthe 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 supportsthe Board’sfinding thatthe essence ofthe drivers’ independent contractswith DEl wastheirpersonal labor, DEl failed to establish the driverswere 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 freightforwarding. Itadvertises 24-houroncall courier services anywhere in Western Washington. When initiallyfounded 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 contractoragreement, underwhich it“leased”thevehicle and driverand, in return, paid the driver a commission for each completed delivery. DEl contracted with drivers of24-foot boxtrucks, passengercars, and ‘everything in between.” Underthe terms ofthe agreements, the drivers were deemed independent contractors providing transportation services to DEl customers. Each driverwas required tofurnish and operate avehicle, paythe costofoperating and maintaining the vehicle, and refrain from competing with DEl for any customerwhose freight the driver transported under a bill of lading issued by DEl. The agreements identifiedthevehiclethedriverintendedto use butdid notmandate anysize, 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 oncetheydownload DEl’s app ontotheirhandheld device, they can log in and waitfora delivery assignment. The on-demand drivers can accept or reject any specific delivery, although there is scant evidence they ever rejected ajob. The cargo delivered ranged from small items—such as escrowdocuments

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and otherpaperwork, blood samples ormedical specimens, T-shirts, and computer hardware—to larger items—such as lumber, raw materials, and non-inventory stockforgrocery 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, thatthedrivers rendered thesame 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 carrierwhen it obtained a freight broker license from the WUTC and the United States Department ofTransportation. When DEl changed its business model, itasked its drivers to obtain a motor carrier license from the WUTC and required them to execute new agreements,

2 ROW51.08.180 defines “worker” as including independentcontractorswhen “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. -3-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 contractoras the “motor carrier.” Underthe broker-carrieragreement, 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 underthe former contractoragreement, the drivers were paid a commission of each invoice DEl issued to its customers. The covenant notto 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 ofthe 2009 audit results. In February 2011, the Department notified DEl it would conduct a second auditforthe calendaryear2010. 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 resultofthe audit, it was assessing $841 ,639 in workers’ compensation premiums, penalties, and interest. The Department imposed a penaltyof$127,500forfailing 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 ofthe Department’s orderofassessment. After receiving and reviewing additional documents from DEl, the Department denied reconsideration on January 17, 2014. DEl then appealed the Department’s assessment orderto the Board. The Board granted the appeal and referred the matterto an Industrial Appeals Judge (IAJ) foran evidentiary hearing. The IAJ conducted the hearing beginning in the autumn of 2014 and concluding in the summerof2015, 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 ofthe premiums DEl owed. In September 2016, both parties asked the Board to review the IAJ’s proposed decision and order. On November3, 2016, the Board adopted the IAJ’s decision and orderas its own. DEl filed a petition forjudicial review in King County Superior Court, which affirmed in substantial part the Board’s decision. DEl appeals, arguing that the drivers are exemptfrom IIA coverage for all or a portion ofthe audit period under

-5-No. 78796-9-1/6

two separate provisions of RCW 51.08.180, or alternatively, as sole proprietors under RCW51 .12.020.~ ANALYSIS TheAdministrative ProcedureAct, chapter34.05 RCW, governsthis court’s reviewofthe Board’s hA premium assessments.6 RCW34.05.570(3) providesthat 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 viewthe evidence in the light mostfavorabletothe Department, the partywho prevailed beforethe Board.8 The Board’s conclusions oflaware reviewed de novo, giving substantial weightto the agency’s interpretation.9 A. ROW 51.08.180 DEl contendsthe Board erred in finding thatthe drivers are ‘workers” under two separate provisions of ROW51.08.180. This statute extends IIA coverage to: every person in this state who is engaged in the employment of or who isworking underan independentcontract, the essence ofwhich is his or her personal labor for an employer under this title,

. .. PROVIDED, That a person is not a workerfor the purpose ofthis title, with respectto his or heractivities attendantto operating a truckwhich he or she owns, and which is leased to a common or contract carrier.

~ DEl does notappeal the Board’s determination thatthe drivers do notqualify underthe 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.
-6-No. 78796-9-1/7

The Board found that personal laborfor delivering items was the essence ofthe contractbetween DEl and mostofitsdrivers, and thatthese driverswere workers” covered bythe lIA. The Board also found the drivers did not lease theirvehicles to DEl, making the leased-truck exemption inapplicable. DEl challenges the factual basis forthe Board’s “essence ofthe contract” finding and the Board’s failure to define the word “truck” under the leased-truck exemption. 1. “Essence ofthe Contract”—the WhiteTest To determinewhetherthe essence ofa contract is personal labor, this court looks “to the contract, the work to be done, the situation ofthe parties, and other attendant circumstances.”1° The court focuses on the realities ofthe situation.11 Whethera particularindividual isa “worker” underthis provision ofRCW5I.08.180 is a mixed question of law and fact.12 InWhitev. DepartmentofLabor& Industries,13the Supreme Court heldthat personal labor is ~ the essence of a contract with an independent contractor (1) when the independentcontractorowns orsupplies machineryorequipment (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 ofYakima Floor Cen. v. De~’t of Labor & Indus., 33 Wn. App. 745, 749, 662 P.2d 391 (1982)). i~ at735-36 (internal quotation marks omitted). 12 Henry, 195 Wn. App. at602. 13 48 Wn.2d 470, 294 P.2d 650 (1956). -7-No. 78796-9-1/8

(3) when the independent contractor either chooses to or must employ others to do all or part ofthework he orshe 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 packageswere not specialized equipment needed to perform the contracted work.16 As in Henry, there is substantial evidence supporting the Board’sfinding thatthe drivers’ personal laboristhe essence ofthe agreements between DEl and thedrivers. The primaryobject is notthe machinery the drivers own; it is the service ofdriving packages from pointAto 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, Mondaythrough 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 anotherto pick up and drop offpackages.

~ kL at474. 15 195 Wn. App. 593, 381 P.3d 172 (2016). 16 i≤Lat609. This courtconcluded therewas “no persuasive argumentthatthe vehicles the drivers are required to provide constitute special equipment, as opposed to ordinaryequipment, to perform the courierservices underthe agreements.” Pd. at 608. -8-No. 78796-9-1/9

Second, neither the contractor agreements nor the broker-carrier agreements specified thatthe drivers had to provide any particulartype ofvehicle. The majority ofdrivers used small passengercars, such as ToyotaYaris, 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, underWhite, would take this agreement outside the operation ofthe IIA.”17 Third, the contractor agreements imposed appearance and conduct requirements on the drivers. For example, the agreement required the drivers to “conductthemselves 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 behaviorprovisions are evidence that DEl placed more emphasis on howthe 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, ratherthan simply leasing a vehicle to effectuate deliveries.

17 j~.. at611 (quoting Lloyd’s, 33 Wn. App. at751). -9-No. 78796-9-1/10 This evidence provides substantial supportforthe Board’s finding that the drivers’ personal laborwas the essence oftheir contracts with DEl. 2. Leased-Truck Exemption Next, DEl contends the Board erred in refusing to definetheword “truck” as used in the leased-truck exemption of RCW 51.08.180. It also argues the leased-truck provision is unconstitutionallyvague. We reject both arguments.

a. Meaning of“Operating a Truck” The IAJ noted, in its discussion ofthe White test, that DEl “pressed for a definition ofa 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 underWhite. Neitherthe IAJ northe Board specifically addressed theterm as used in the leased-truckexemption. We agree with DEl thatthe Board’s decision did notaddress the leased-truckexemption 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 courierdrivers are “trucks” underthis 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 mustdetermine, 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 ofthe law forthe 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 concedesthis provision would onlyapplytothe period during which it held acommon carrier permit and became inapplicable once DEl began doing business as afreight broker in April 2011. -10-No. 78796-9-Ill I

to established principles of statutory interpretation, whether ‘operating a truck” extends to delivering small packages via a passengervehicle. The purpose ofstatutory interpretation isto determine and give effecttothe intent ofthe legislature.2° Phrases in a statute are given their plain and ordinary meaning absent a contrary statutory definition.21 We may referto 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 wewill rejectany reading ofa phrasethat produces an absurd result.24 Only ifmorethan one interpretation ofthe plain language is reasonable, dowefind 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 favorofcoverage ofthe worker.26

concedesthis provision would only applytothe period during which it held a common carrierpermit and became inapplicable once DEl began doing business as a freight broker in April 2011. 20 State v. Evans, 177Wn.2d 186, 192, 298 P.3d 724 (2013). 21 State v. Lilyblad, 163 Wn.2d 1, 6, 177 P.3d 686 (2008). 22 Budget RentA CarCorp. v. Dept of Licensing, 144 Wn.2d 889, 899, 31 P.3d 1174 (2001). 23 Henry, 195 Wn. App. at622. 24 Tingeyv. 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)). -11

-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 oftruck, 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 automotivevehicle built for the transportation of goods on its own chassis,” or “a motorized vehicle equipped with a swivel for hauling a trailer.”27 Underthe ordinary definition, ifthe vehicle has a chassis designed totransportpropertyorhas a swivel to pull atrailer 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 oftruck, whereas boxtrucks and pickup trucks would fitwithin it. Second, the leased-truckexemption 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 motorvehicle forcompensation.”28 A “motorvehicle” is defined as “any truck, trailer, semitrailer, tractor,

. . . ~ any self-propelled or motor-driven

27 WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY2454 (2002). 28 RCW 81.80.010(1).

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vehicle used upon any public highway ofthis state forthe purpose oftransporting property, but not including baggage. “29 Ifthe legislature had intended ROW 51.08.180’s leased-truckexemption to encompass all motorvehicles, itcould have simply said so. By singling out trucks for the hA exemption, the legislature must have intended to narrow its application to a particularsubsetofmotorvehiclesthat common carriers use to move freight.3° Applying the dictionary definition is consistentwith this legislative intent. It is also consistentwith thewell-established principle thatthe hA is liberally construed to protect more workers. Third, DEl’s argument is based on the logical fallacythat because all trucks are motorvehicles that can be used totransport property, and passengercars are motorvehiclesthatcan be used totransport property, then all passengercars must be trucks. This argument is a classic non sequitur, known as the fallacy ofthe undistributed middle:31 All trucks [Z] can be used to transport property [B] A passengercar [Y] can be used to transport property [B] Therefore, all passengercars [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 statutoryterms are given theircommon meaning unlessthere 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 SeeAllied 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).

- 13-No. 78796-9-1/14 Finally, DEl’s argumentthatwe should define a “truck” as any motorvehicle thatcould be used totransportanytype ofpropertywould lead to an absurd result. Underthis approach, anysmall passengercaroreven a motorcyclewould qualify. Common sense mustinform ouranalysis,34and common sensetells 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 trailerto transport goods. Using this definition, none ofthe driversthe Board deemed “workers” under the IlA, with the exception oftwo, 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 onlytime period forwhich the leased-truckexemption could be relevantforSyed and Utterback is the lasttwo quarters of2010. 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 Exhibit321, a contractoragreement between Utterbackand DEl. Butthe

~ State v. Alvarado, 164 Wn.2d 556, 562, 192 P.3d 345 (2008).

- 14-No. 78796-9-1115

IAJ excluded Syed’s agreement because DEl did not produce it during the Department’saudit. And the IAJ rejected Utterback’s agreementafterthe hearing. Wethus have no agreementto examineto determine if itconstituted atruck lease. Furthermore, Utterback testified he never leased his truck to DEl. And even if Syed’s agreementhad been admitted, it listsa2005 Honda as Syed’s“equipment,” nota 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 Underthe due process clause of the Fourteenth Amendment ofthe 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, exhibitsthatwere admitted forSyed—hisWashington State vehicle registration and his certificate of liability insurance—both show a 2006 Mitsubishi Lancer, a passengercar. 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 ofSpokane v. Douglass, 115 Wn.2d 171, 179, 795 P.2d 693 (1990). 40 Id. -15-No. 78796-9-1/16

Astatute is unconstitutionallyvague only “if persons of common intelligence must necessarily guess at its meaning and differas to its application.”41 DEl argues that itwas subjectto arbitrary enforcement bythe Department because its auditors defined theterm “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 ifany of DEl’s driverswere listed as owning a truck. Bautista also attempted to contact individual drivers to ask them ifthey drove trucks to deliver packages. Finally, she searched the Washington State Department of Motor Vehicle Licensing website to determine ifany drivers had vehicle registrations for anytrucks. Eliezar Eidenbom, the Department litigation specialist who handled DEl’s requested reconsideration ofthe2010-2011 audit, used what he called “a common definition oftruck,” which he defined as a motorvehicle designed to carry cargo. Eidenbom concluded that vans, SUVs, and minivans were not “trucks” because theywere designed to carry passengers, notto carry loads. Eidenbom considered a pickuptrucktofallwithinthe statutoryexemption andwould alsoconsidera cargo van to do so, ifthevan was designed forcarrying freightand heavy loads and had its passengerseats removed to allowfor loading property. Both Bautisa and Eidenbom applied a definition consistentwith this court’s statutory interpretation. We can find nothing arbitrary about the approach they

41 City ofSeattle v. Webster, 115 Wn.2d 635, 643, 802 P.2d 1333 (1990).

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took. Nor can we conclude that a person of ordinary intelligence must guess whethera 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 unconstitutionallyvague because persons ofaverage intellectwould expecta prohibition against mobile homes to specifically referto mobile homes.44 Butthis case before us is dissimilar; people have an understanding of what a truck is. There is no guesswork needed to ascertain the meaning ofthisword.45 Unlikethe “building” versus “mobile home” distinction in Bohne, the average person would notthinkthat a two-doororfour-door passengervehicle is a “truck.” The leasedtruck 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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under RCW51.12.020. This argumentwas rejected in Henry, andwe see no basis for revisiting the issue here. RCW51.12.020(5) providesthatsole 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 ofthese three statutes is to conclude thatthe 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 ofthese statutes makes sense.47 DEl’s interpretation of ROW51.12.020 is inconsistentwith Henry. The DEl drivers who set up businesses as sole proprietors are not automatically excluded from IIA coverage byvirtue 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 thatthe essence oftheircontractswith DEl was theirpersonal labor. DEl failed to establish thatany ofthese drivers, with the exception oftwo, operated trucks and failed to establish

~ 195Wn. App. at621. ki. at623-24. -18-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 notalleviate DEl’s liabilityforworkercompensation premiumsfordriverswho are “workers” under RCW51 .08.180. We affirm.

WE CONCUR:

/

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