Bostain v. Food Express, Inc.

• Decision Date: 17 May 2005
• Docket Number: No. 31461-4-II.,31461-4-II.
• Citation: Bostain v. Food Express, Inc., 127 Wn. App. 499, 127 Wash.App. 499, 111 P.3d 906 (Wash. App. 2005)
• Parties: Larie E. BOSTAIN and Laurie Jo Bostain, husband and wife, Respondent/Cross-Appellants. v. FOOD EXPRESS, INC., an unregistered corporation, Appellant/Cross-Respondent, Marc Widing, a single man, Defendant.
• Court: Washington Court of Appeals

111 P.3d 906

127 Wn. App. 499

127 Wash. App. 499

Larie E. BOSTAIN and Laurie Jo Bostain, husband and wife, Respondent/Cross-Appellants. v.FOOD EXPRESS, INC., an unregistered corporation, Appellant/Cross-Respondent,Marc Widing, a single man, Defendant.

No. 31461-4-II.

Court of Appeals of Washington, Division 2.

May 17, 2005.

Dale Halverson Schofield, Attorney at Law, Portland, OR, for Appellant/Cross-Respondent.

James F. Gray, Law Offices of James F. Gray, Vancouver, WA, for Respondent/Cross-Appellant.

Amanda J. Goss, Attorney Gerneral Office, Seattle, WA, for Amicus Curiae Wa. State Dept. of Labor & Industries.

Philip Albert Talmadge, Talmadge Law Group PLLC, Tukwila, WA, for Amicus Curiae, Washington Trucking Assoc.

BRIDGEWATER, J.

¶ 1 Food Express, Inc. appeals from a partial summary judgment for overtime wages due to Larie Bostain.We hold that concerning "overtime" pay using the "plain meaning rule" the Washington Minimum Wage Act (WMWA) applies only to those hours an employee works within the state.Larie Bostain, an interstate truck driver, averaged 48 hours of driving/loading per week, but he did not drive/load more than 40 hours in any work week within Washington State.Because Bostain was not entitled to include the hours he drove outside Washington, he was not entitled to overtime wages, prejudgment interest or attorney fees.¹We reverse.

¶ 2 Food Express is a motor carrier having its principal office in Arcadia, California.It hauls food products and chemicals in California, Nevada, Idaho, Arizona, Washington, Oregon, and Utah.The majority of its hauling occurs intrastate but some interstate hauling occurs between California and the above listed Western States.

¶ 3 Food Express's operation in Washington consists of a terminal in Vancouver, Washington.It also has approximately five trucks parked in the Seattle area and other trucks located elsewhere in Washington.¶ 4 Food Express hired Bostain on August 6, 1992, as an interstate driver based at the Vancouver terminal.The company paid his wages on an hourly rate.If he traveled more than 200 miles, then Food Express paid him by the mile.When it hired Bostain, Food Express explained that because of the interstate nature of his driving, it would not pay him overtime.Bostain never objected to this policy while employed at Food Express.Neither did he request or demand payment of overtime wages.He also never pursued a claim with any regulatory agency, including the Washington Department of Labor & Industries(WDLI), regarding overtime wages.

¶ 5 The president of Food Express, Walter Keeney, had spoken with WDLI to determine whether to pay Bostain overtime.After these talks, Food Express determined that it did not have to pay overtime wages to Bostain.

¶ 6 Bostain began and ended his runs from the Vancouver terminal.Food Express terminated Bostain on May 28, 2002, for insubordination asserting he had failed to follow the Food Express dispatcher's instructions and violated U.S. Department of Transportation(DOT) safety standards.Bostain had picked up a load of cargo late in the afternoon on May 23, in Eugene, Oregon.If he had continued to drive his load, he would have exceeded his DOT daily allowance of hours for truck drivers.His dispatcher told him to get a motel in Eugene and stay there until the next morning.Rather than follow those instructions, Bostain drove the truck home and parked it near his house.

¶ 7 After his termination, Bostain did not file a claim for overtime wages with the WDLI.Instead, in December 2002, he filed a complaint with the Clark County Superior Court seeking overtime wages under RCW 49.46.130(1); double wages and attorney fees under RCW 49.52.070 for Food Express's willful failure to pay overtime wages; and a finding that Marc Widing, the Vancouver terminal manager, should be personally liable for the overtime wages under RCW 49.46.010(4) and 49.52.070.

¶ 8 Keeney completed a log audit of Bostain's final year of employment, June 2001 through May 2002, and found that during that year Bostain's driving time within Washington State constituted 37 percent of his total driving time, 63 percent was out of state.

¶ 9 The log audit also showed that Bostain averaged a total of 48 hours of driving/loading per week.Keeney's audit showed that Bostain never worked more than 40 hours in any work week within Washington State.

¶ 10 In January 2003, Food Express filed its answer with affirmative defenses, alleging that when RCW 49.46.130(1) is read in conjunction with WAC 296-128-012, the statute contemplates that for the overtime wages requirements to apply to interstate truck drivers, the drivers must drive more than 40 hours in a week within Washington State.It also alleged the affirmative defense of estoppel.

¶ 11 On February 6, Food Express's counsel wrote a letter to the WDLI requesting its opinion as to whether Food Express was liable to Bostain for overtime wages.Elaine Fischer, an industrial relations specialist for the WDLI, responded that Food Express did not owe Bostain overtime wages because "[t]he department regulates only hours worked within the state of Washington," citing WAC 296-128-012.Clerk's Papers(CP)at 225.

¶ 12 On February 19, Bostain moved for partial summary judgment as to the agreement and related affirmative defenses and out-of-state hours.The trial court granted the motion in part, finding that Food Express owed Bostain overtime wages because RCW 49.46.130(1) preceded over WAC 296-128-012"because the former does not speak to the issue of whether the hours worked must be within the State of Washington[.]"CPat 859.

¶ 13The court also concluded that Bostain's employment was subject to RCW 49.46.130(1) absent an applicable exemption.It held that Food Express failed to prove that an exemption in the WMWA applied.The court found that Fischer's letter was not dispositive because the letter stated that WDLI regulated only hours worked in Washington State instead of stating that WDLI regulated all employees in the state of Washington.

¶ 14The trial court entered its amended final order and judgment on February 19, 2004.The court entered judgment against Food Express of $9,846.64 for unpaid overtime wages; $3,236.21 prejudgment interest up to September 26, 2003; and $15,000 attorney fees.The court calculated the attorney fees using the lodestar method.

I.Standard of Review

¶ 15 Food Express asks this court to review the trial court's grant of summary judgment.This court reviews a grant of summary judgment de novo, placing itself in the same position as the trial court in reviewing the evidence.Herron v. Tribune Pub'g Co.,108 Wash.2d 162, 169, 736 P.2d 249(1987).We uphold a grant of summary judgment where "there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law."CR56(c).Summary judgment is appropriate only if, from all the evidence, reasonable persons could reach but one conclusion.Citizens for Responsible Wildlife Mgmt. v. State,149 Wash.2d 622, 630, 71 P.3d 644(2003).

II.WMWA

A.Statutory Interpretation

¶ 16 The first issue raised in this appeal is one of first impression.We must interpret RCW 49.46.130 of the WMWA, chapter 49.46 RCW.We do so employing a de novo standard of review.Stuckey v. Dep't of Labor & Indus.,129 Wash.2d 289, 295, 916 P.2d 399(1996).And we seek to carry out the statute's legislative intent.Rozner v. City of Bellevue,116 Wash.2d 342, 347, 804 P.2d 24(1991).If a statute is plain and unambiguous, we derive its meaning from the statutory language.Dep't of Transp. v. State Employees' Ins. Bd.,97 Wash.2d 454, 458, 645 P.2d 1076(1982).

¶ 17 In Department of Ecology v. Campbell & Gwinn, L.L.C.,146 Wash.2d 1, 43 P.3d 4(2002), our Supreme Court directed courts to derive the plain meaning of a statute"from all that the Legislature has said in the statute and related statutes which disclose legislative intent about the provision in question."Campbell & Gwinn,146 Wash.2d at 11, 43 P.3d 4.Such a formulation, the court noted was "more likely to carry out legislative intent."Campbell & Gwinn,146 Wash.2d at 11-12, 43 P.3d 4.

¶ 18 Under the "plain meaning rule"we look to the ordinary meaning of the statutory language, the underlying legislative purposes, and closely related statutes.By interpreting statutory provisions, courts can achieve a "harmonious total statutory scheme... which maintains the integrity of the respective statutes."In re Estate of Kerr,134 Wash.2d 328, 336, 949 P.2d 810(1998)(citingState v. Williams,94 Wash.2d 531, 547, 617 P.2d 1012(1980)(quotingState v. Wright,84 Wash.2d 645, 650, 529 P.2d 453(1974))).We read statutes relating to the same subject as complementary and not in conflict.Waste Mgmt. of Seattle, Inc. v. Utils. & Transp. Comm'n,123 Wash.2d 621, 630, 869 P.2d 1034(1994).

B. RCW 49.46.130

¶ 19RCW 49.46.130(1) states in part:

Except as otherwise provided in this section, no employer shall employ any of his employees for a work week longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.

¶ 20 The plain meaning here is obvious: an employer must pay overtime compensation to an employee for work performed in excess of 40 hours in a week unless an exemption applies.The purpose of the WMWA is to establish a minimum wage for employees of the state"to encourage employment opportunities within the state."RCW 49.46.005.WAC 296-128-011(1) defines the "[o]vertime rate of pay" as the "amount of compensation paid for hours worked within the state of Washington in excess of forty hours per week."

¶ 21 Using the plain meaning rule, only one legislative intent is possible: the minimum wage act applies only to those hours an employee works within the state.Any other ...