281 P.3d 289 (Wash. 2012), 85949-3, Anfinson v. FedEx Ground Package System, Inc.

Docket Nº:85949-3.
Citation:281 P.3d 289, 174 Wn.2d 851
Opinion Judge:OWENS, J.
Party Name:Randy ANFINSON, James Geiger, and Steven Hardie, individually and on behalf of others similarly situated, Respondents, v. FEDEX GROUND PACKAGE SYSTEM, INC., Petitioner, John Schnebeck, Cheryl Pilakowski, and John Does 1 through 10, Defendants.
Attorney:Kelly Patrick Corr, Guy Paul Michelson, Kevin Carl Baumgardner, Emily J. Harris, Corr Cronin Michelson Baumgardner & Preece, Howard Mark Goodfriend, Catherine Wright Smith, Smith Goodfriend, PS, Seattle, WA, for Petitioner. William Joel Rutzick, Martin S. Garfinkel, Schroeter Goldmark & Bender, L...
Judge Panel:WE CONCUR: BARBARA A. MADSEN, Chief Justice, MARY E. FAIRHURST, DEBRA L. STEPHENS, and STEVEN C. GONZ
Case Date:July 19, 2012
Court:Supreme Court of Washington

Page 289

281 P.3d 289 (Wash. 2012)

174 Wn.2d 851

Randy ANFINSON, James Geiger, and Steven Hardie, individually and on behalf of others similarly situated, Respondents,

v.

FEDEX GROUND PACKAGE SYSTEM, INC., Petitioner,

John Schnebeck, Cheryl Pilakowski, and John Does 1 through 10, Defendants.

No. 85949-3.

Supreme Court of Washington, En Banc.

July 19, 2012

Argued Feb. 14, 2012.

Page 290

[Copyrighted Material Omitted]

Page 291

[Copyrighted Material Omitted]

Page 292

Kelly Patrick Corr, Guy Paul Michelson, Kevin Carl Baumgardner, Emily J. Harris, Corr Cronin Michelson Baumgardner & Preece, Howard Mark Goodfriend, Catherine Wright Smith, Smith Goodfriend, PS, Seattle, WA, for Petitioner.

William Joel Rutzick, Martin S. Garfinkel, Schroeter Goldmark & Bender, Lawrence Rea Schwerin, Dmitri L. Iglitzin, Schwerin Campbell Barnard Iglitzin & Lav, Seattle, WA, for Respondents.

Amanda J. Goss, Attorney General Office, Seattle, WA, amicus counsel for Department of Labor and Industries.

Toby James Marshall, Terrell Marshall Daudt & Willie, PLLC, Jeffrey Lowell Needle, Maynard Building, Seattle, WA, amicus counsel for Washington Employment Lawyers Association.

OWENS, J.

[174 Wn.2d 856] ¶ 1 This case concerns the classification of workers as employees or independent contractors for purposes of the Washington Minimum Wage Act (MWA), chapter 49.46 RCW. A class of 320 former and current FedEx Ground Package System, Inc. (FedEx) delivery drivers (hereinafter Anfinson) brought this action seeking overtime wages under the MWA and reimbursement for uniform expenses under the industrial welfare act (IWA), chapter 49.12 RCW. The primary dispute with respect to both claims is whether the drivers were employees or independent contractors. The [174 Wn.2d 857] parties disagree on the correct test to distinguish these categories under the MWA; FedEx argues that the common law right-to-control standard governs while Anfinson contends that the federal Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. §§ 201-219, ECONOMIC-DEPENDENCE TEST CONTROLS. THE TRIAL Court gave the jury a hybrid instruction, focusing the inquiry on FedEx's right to control in light of the economic-dependence factors. The jury determined that the drivers were independent contractors.

¶ 2 Anfinson appealed, contending, among other things, that the jury instructions misinformed the jury about the standards for determining worker status and about the requirement

Page 293

that class status and evidence be " common to the class members," Clerk's Papers (CP) at 2194 (Instruction 8). The Court of Appeals held that the jury instruction defining the standard for determining worker status was erroneous and prejudicial and reversed on that basis. Anfinson v. FedEx Ground Package Sys., Inc., 159 Wash.App. 35, 53-55, 244 P.3d 32 (2010). The Court of Appeals further held that the jury instruction on the burden of proof was erroneous because it misled the jury and was prejudicial. Id. at 65-71, 244 P.3d 32. We affirm the Court of Appeals in both respects.

FACTS

¶ 3 In 2004, Randy Anfinson, James Geiger, and Steven Hardie filed a class action against FedEx " for unpaid overtime wages and for reimbursement of uniform expenses." CP at 7. Anfinson, Geiger, and Hardie, each a former FedEx pickup and delivery driver, sought to serve as representatives for a class consisting of all drivers who had signed a contractor agreement with FedEx and handled a single route over the three-year period preceding the filing of the complaint. On January 28, 2008, the trial court certified the class as proposed. The court also bifurcated the case into a liability phase and a damages phase.

[174 Wn.2d 858] ¶ 4 Near the close of the liability phase, FedEx moved to decertify the class. The trial court denied the motion. After a four-week trial, the jury returned a verdict on March 31, 2009, finding that the class members were independent contractors, not employees. Anfinson appealed; FedEx did not cross-appeal.

¶ 5 In a thoughtful and carefully reasoned opinion, the Court of Appeals affirmed in part and reversed in part. Anfinson, 159 Wash.App. at 74, 244 P.3d 32. The court decided several issues in Anfinson's favor. Most notably, the court reversed the judgment, holding that the trial court erred in instructing the jury on the legal standard for determining whether a worker is an " employee" under the MWA. Id. at 53-55, 244 P.3d 32. The Court of Appeals also rejected FedEx's claim that Anfinson should be estopped from asserting that the economic-dependence test governs under the MWA. Id. at 62-63, 244 P.3d 32. The Court of Appeals further agreed with Anfinson that " the belief of the parties[ ] is not a relevant factor under the FLSA test" but left to the trial court the determination, in the first instance, of whether there are persuasive reasons to depart from the FLSA factors under the MWA. Id. at 59, 244 P.3d 32. In addition, the Court of Appeals held that the instruction requiring that the evidence be " common to the class members" was misleading and prejudicial. Id. at 68-71, 244 P.3d 32.

¶ 6 The Court of Appeals also decided several issues in FedEx's favor. With respect to the trial court's denial of several of Anfinson's proposed instructions, the Court of Appeals held that the trial court had not abused its discretion. Id. at 60-61, 63-64, 71, 244 P.3d 32. The court also held that the proper articulation of the FLSA factor focuses on the worker's investment, not the relative investment of the parties.1 Id. at 59, 244 P.3d 32. Further, the Court of Appeals rejected Anfinson's contention that the trial court erred in giving [174 Wn.2d 859] the jury a special verdict form asking only whether the workers were employees or independent contractors as opposed to asking the jury to determine each of the factors and leaving the court to determine whether, based on those factors, the workers are employees or independent contractors. Id. at 71-73, 244 P.3d 32. Finally, the Court of Appeals denied as premature Anfinson's request for attorney fees. Id. at 73-74, 244 P.3d 32.

¶ 7 FedEx filed a petition for review of three issues. First, FedEx sought review of the Court of Appeals holding that worker status under the MWA is governed by the economic-dependence test and that instruction 9, which used the right-to-control test, was reversible error. Pet. for Review at 1. Second, FedEx sought review of the Court of Appeals holding that judicial estoppel does not apply in this case. Id. at 1-2. Third,

Page 294

FedEx sought review of the Court of Appeals conclusion that instruction 8, regarding the " common to the class members" requirement, was misleading and prejudicial. Id. at 2; CP at 2194. Anfinson did not raise any additional issues in its answer. See Resp'ts' Answer to Pet. for Review at 1. Accordingly, the additional issues decided by the Court of Appeals are not before us. See RAP 13.7(b). We granted FedEx's petition for review. Anfinson v. FedEx Ground Package Sys., Inc., 172 Wash.2d 1001, 258 P.3d 685 (2011).

ISSUES

¶ 8 1. Did instruction 9 correctly state the standard for determining whether a worker is an " employee" under the MWA?

¶ 9 Did instruction 8 correctly state that evidence must be common to the class members in a class action lawsuit under the MWA?

[174 Wn.2d 860] ANALYSIS

I. Standard of Review

¶ 10 Jury instructions are reviewed de novo for errors of law. Joyce v. Dep't of Corr., 155 Wash.2d 306, 323, 119 P.3d 825 (2005). " Jury instructions are sufficient when they allow counsel to argue their theory of the case, are not misleading, and when read as a whole properly inform the trier of fact of the applicable law." Bodin v. City of Stanwood, 130 Wash.2d 726, 732, 927 P.2d 240 (1996). If any of these elements are absent, the instruction is erroneous. See Joyce, 155 Wash.2d at 323-25, 119 P.3d 825. An erroneous instruction is reversible error only if it prejudices a party. Id. at 323, 119 P.3d 825. Prejudice is presumed if the instruction contains a clear misstatement of law; prejudice must be demonstrated if the instruction is merely misleading. Keller v. City of Spokane, 146 Wash.2d 237, 249-50, 44 P.3d 845 (2002).

¶ 11 A trial court's decision with respect to the application of judicial estoppel is reviewed for abuse of discretion. Arkison v. Ethan Allen, Inc., 160 Wash.2d 535, 538, 160 P.3d 13 (2007). " A trial court abuses its discretion when its decision or order is manifestly unreasonable, exercised on untenable grounds, or exercised for untenable reasons." Noble v. Safe Harbor Family Pres. Trust, 167 Wash.2d 11, 17, 216 P.3d 1007 (2009).

II. Employee Status under the MWA

A. Anfinson Has Not Preserved Any Error regarding the IWA Claim

¶ 12 At trial, Anfinson claimed that FedEx had violated RCW 49.12.450, a component of the IWA, by failing to reimburse employees for uniform expenses. An element of this claim was proof that class members were employees and this determination was governed by instruction 9. The jury's finding that the class members were independent [174 Wn.2d 861] contractors, and not employees, applied to both the MWA and IWA claims. In its brief to the Court of Appeals, Anfinson's assertion that instruction 9 was erroneous was predicated exclusively on its interpretation of the MWA; Anfinson made no argument that instruction 9 contained an error of law with respect to the IWA. Cf. WAC 296-126-002(2)(c) (exempting " [i]ndependent contractors [who] control the manner of doing the work" from definition of employee under the IWA). While Anfinson's assignment of error is broad enough to cover the IWA claim, " [a] party that offers no argument in its opening brief on a claimed assignment of error waives the assignment." Brown v. Vail, 169 Wash.2d 318, 336 n. 11, 237 P.3d 263 (2010). Accordingly, Anfinson has waived any argument that instruction 9 contained an error of law with respect to...

To continue reading

FREE SIGN UP
111 practice notes
  • 291 P.3d 906 (Wash.App. Div. 1 2012), 66828-5-I, Kellar v. Estate of Kellar
    • United States
    • Washington Court of Appeals of Washington
    • 31 Diciembre 2012
    ...recently held judicial estoppel applies to both questions of fact and questions of law. Anfinson v. FedEx Ground Package Sys., Inc., 174 Wn.2d 851, 865-66, 281 P.3d 289 (2012). [4] We need not be concerned with whether the Gaming Commission was misled since judicial estoppel is concerned wi......
  • 360 P.3d 39 (Wash.App. Div. 1 2015), 71411-2-I, Payne v. Paugh
    • United States
    • Washington Court of Appeals of Washington
    • 28 Septiembre 2015
    ...419 P.2d 141 (1966)).4 [¶48] We review alleged errors of law in jury instructions de novo. Anfinson v. FedEx Ground Package Sys., Inc., 174 Wn.2d 851, 860, 281 P.3d 289 (2012). " An erroneous instruction is reversible error only if it is prejudicial to a party." Fergen, 182 Wn.2d ......
  • 419 P.3d 447 (Wash.App. Div. 1 2018), 74717-7-I, Gosney v. Fireman’s Fund Insurance Co.
    • United States
    • Washington Court of Appeals of Washington
    • 31 Mayo 2018
    ...proceedings and avoidance of inconsistency, duplicity, and waste of time." Anfinson v. FedEx Ground Package Sys., Inc., 174 Wn.2d 851, 861, 281 P.3d 289 (2012). Judicial estoppel is intended to protect the integrity of the courts— it is not designed to protect litig......
  • Driggs v. Howlett, 030816 WACA, 32381-1-III
    • United States
    • Washington Court of Appeals of Washington
    • 8 Marzo 2016
    ...way affected the final outcome of the case. Anfinson v. FedEx Ground Package Sys., Inc., 159 Wn.App. 35, 44, 244 P.3d 32 (2010), aff'd, 174 Wn.2d 851, 281 P.3d 289 (2012). Error will be considered prejudicial if it presumptively affects the outcome of the trial. James S Black & Co. v. P......
  • Free signup to view additional results
111 cases
  • 291 P.3d 906 (Wash.App. Div. 1 2012), 66828-5-I, Kellar v. Estate of Kellar
    • United States
    • Washington Court of Appeals of Washington
    • 31 Diciembre 2012
    ...recently held judicial estoppel applies to both questions of fact and questions of law. Anfinson v. FedEx Ground Package Sys., Inc., 174 Wn.2d 851, 865-66, 281 P.3d 289 (2012). [4] We need not be concerned with whether the Gaming Commission was misled since judicial estoppel is concerned wi......
  • 360 P.3d 39 (Wash.App. Div. 1 2015), 71411-2-I, Payne v. Paugh
    • United States
    • Washington Court of Appeals of Washington
    • 28 Septiembre 2015
    ...419 P.2d 141 (1966)).4 [¶48] We review alleged errors of law in jury instructions de novo. Anfinson v. FedEx Ground Package Sys., Inc., 174 Wn.2d 851, 860, 281 P.3d 289 (2012). " An erroneous instruction is reversible error only if it is prejudicial to a party." Fergen, 182 Wn.2d ......
  • 419 P.3d 447 (Wash.App. Div. 1 2018), 74717-7-I, Gosney v. Fireman’s Fund Insurance Co.
    • United States
    • Washington Court of Appeals of Washington
    • 31 Mayo 2018
    ...proceedings and avoidance of inconsistency, duplicity, and waste of time." Anfinson v. FedEx Ground Package Sys., Inc., 174 Wn.2d 851, 861, 281 P.3d 289 (2012). Judicial estoppel is intended to protect the integrity of the courts— it is not designed to protect litig......
  • Driggs v. Howlett, 030816 WACA, 32381-1-III
    • United States
    • Washington Court of Appeals of Washington
    • 8 Marzo 2016
    ...way affected the final outcome of the case. Anfinson v. FedEx Ground Package Sys., Inc., 159 Wn.App. 35, 44, 244 P.3d 32 (2010), aff'd, 174 Wn.2d 851, 281 P.3d 289 (2012). Error will be considered prejudicial if it presumptively affects the outcome of the trial. James S Black & Co. v. P......
  • Free signup to view additional results