Continental Sports Corp. v. Department of Labor and Industries
| Decision Date | 22 February 1996 |
| Docket Number | No. 62709-6,62709-6 |
| Parties | CONTINENTAL SPORTS CORPORATION, a Washington Corporation, Respondent, v. The DEPARTMENT OF LABOR AND INDUSTRIES, Petitioner. |
| Court | Washington Supreme Court |
Christine O. Gregoire, Attorney General, Penny L. Allen, Asst. Attorney General, Olympia, for petitioner.
Lane, Powell, Spears & Lubersky, Gail E. Mautner, Michael King, Seattle, for respondent.
Christine O. Gregoire, Attorney General, Jean M. Wilkinson, Asst. Attorney General, Olympia, amicus curiae for Board of Industrial Insurance Appeal.
We granted review of a decision of the Court of Appeals in which that court reversed the Superior Court's affirmance of a decision of the Board of Industrial Insurance Appeals (Board) to the effect that Continental Sports Corporation's appeal from a notice and order of assessment of industrial insurance taxes was untimely filed. In overturning the Board's decision, the Court of Appeals concluded that Continental timely filed its notice of appeal by sending it "by mail," as permitted by statute, when it deposited the notice with Federal Express, a private delivery service, on the last day that an appeal could be filed. Although we disagree with the Court of Appeals's conclusion that Continental's delivery of the notice to Federal Express was equivalent to sending the notice "by mail," we nevertheless affirm that court, concluding that Continental substantially complied with the statutory provisions.
Continental, a Washington corporation, is a subsidiary of a Canadian corporation. In March 1990, the Department of Labor and Industries (Department) issued a notice and order of assessment, indicating that Continental owed industrial insurance taxes in the amount of $116,235.43. On March 19, 1990, the Department served the notice and order of assessment on Continental at Continental's office in Kennewick. On that same date, the notice and order was transmitted by fax from Kennewick to Continental's headquarters in Vancouver, British Columbia. The notice stated, in part, that "any appeal ... must be made within thirty days of the date of service by filing an appeal with the Board of Industrial Insurance Appeals and sending a copy of said appeal to the Director of the Department of Labor and Industries, by mail or personal delivery, pursuant to RCW 51.48.131." Notice and order of assessment, Ex. 3.
On April 17, 29 days after Continental received the notice and order of assessment, its vice-president, Gary Mathieson, telephoned the Department to determine when and how Continental could deliver its notice of appeal. According to Mathieson, he told a representative of the Department that the notice would be sent to the Department on the following day by a private delivery service, Federal Express. Relying on what he claimed was the Department's response, Mathieson sent the notice of appeal to the Department and the Board by Federal Express's "overnight service" on April 18, the 30th day after the notice and order of assessment was received by Continental. Report of Proceedings at 33. Mathieson prepaid Federal Express $35 for its service and obtained a receipt which indicated that Federal Express had received the notice of appeal on that date. On April 19, 1990, 31 days after the notice and order of assessment was served on Continental, Federal Express delivered Continental's notice of appeal to the Board.
The Board granted Continental's appeal subject to a showing that its notice of appeal was timely filed. Following a hearing on that issue, an Industrial Appeals judge prepared a proposed order indicating that the appeal had been timely filed. The Department petitioned the Board to review the Industrial Appeals judge's decision. Upon review, the Board disagreed with the appeals judge's decision and dismissed Continental's appeal as untimely, concluding that the notice of appeal was filed more than 30 days after the notice and order of assessment was served on Continental. In doing so, it specifically declined to equate delivery of a notice of appeal by a private delivery service to sending it "by mail." Continental appealed the Board's decision to the Thurston County Superior Court, which affirmed the Board. Continental then appealed to the Court of Appeals, Division Two, which reversed the Superior Court. The Department petitioned this court for review of the Court of Appeals's decision and we granted it.
The issue that we must resolve is whether Continental complied with RCW 51.48.131, the statute that governs the time and manner in which appeals may be filed from a notice and order of assessment of the Department of Labor and Industries. That statute provides in part:
A notice of assessment becomes final thirty days from the date the notice of assessment was served upon the employer unless: (1) A written request for reconsideration is filed with the department of labor and industries, or (2) an appeal is filed with the board of industrial insurance appeals and sent to the director of labor and industries by mail or delivered in person. The appeal shall not be denied solely on the basis that is was not filed with both the board and the director if it was filed with either the board or the director.
RCW 51.48.131.
The Board and the Department both concede that Continental's notice of appeal would have been timely filed, regardless of the date it was actually delivered to the Board, if it had been addressed to either the Department or the Board and deposited with the United States Postal Service on or before the 30th day of the appeal period. We must decide here a question that is not answered by that concession: is a notice of appeal timely filed when it is deposited with a private delivery service, such as Federal Express, on the 30th day of the appeal period and delivered to the Board the following day? In the event that we conclude it is not, we must also decide if Continental substantially complied with the above quoted statute.
The Department contends on appeal, as it did below, that Continental failed to comply with RCW 51.48.131 because it did not send the notice of appeal "by mail" within 30 days from the date the notice and order of assessment was served on it. More specifically, they argue that sending postal matter by a private delivery service is not equivalent to sending it "by mail," urging upon us the proposition that the term "mail" only includes postal matter carried by the United States Postal Service. Continental responds that postal matter is mail if it is carried either by the United States Postal Service or a private delivery service such as Federal Express.
In concluding that sending an item by Federal Express is equivalent to sending it "by mail," the Court of Appeals relied on several United States postal regulations. It did so despite noting that postal regulations generally prohibit the carriage of mail by private carriers. 39 C.F.R. § 310.2(a); 18 U.S.C. § 1696. That court went on to observe, however, that the government's monopoly on the delivery of mail is subject to some exceptions. It focused on the so-called "extremely urgent letters" exception, noting that a letter "will be conclusively presumed ... extremely urgent" if the amount paid the private carrier is at least $3, or twice the applicable United States postage for first class mail, whichever is greater. Continental Sports Corp. v. Department of Labor & Indus., 77 Wash.App. 17, 20 n. 7, 889 P.2d 506 (1995); 39 C.F.R. § 310.2(b)-(c); 39 C.F.R. § 320.6(c). The Court of Appeals went on to hold that "[i]t follows that a letter for which the sender pays more than twice the applicable United States postage, and not less than $3, is carried 'by mail' when it is carried either by private express or by the United States Postal Service" and that since Continental paid Federal Express a $35 fee for next day service "it mailed its notice as an 'extremely urgent letter', and the notice was 'sent ... by mail' on the last day of the 30-day appeal period." Continental Sports, 77 Wash.App. at 20, 889 P.2d 506.
We are not satisfied that sending postal matter by private delivery service is sending it "by mail" simply because the particular delivery falls within the extremely urgent letters exception to the United States postal regulations. We are inclined, rather, to focus on the ordinary meaning of the term mail when construing Washington statutes requiring service by mail. We do that because mail is not defined in RCW 51.48.131, and when a term is not defined, it should be given its ordinary meaning. Garrison v. State Nursing Bd., 87 Wash.2d 195, 196, 550 P.2d 7 (1976). In attempting to discern the ordinary meaning of mail, resorting to the dictionary, unfortunately, is not particularly helpful. According to at least one dictionary, that term encompasses either "the bags of letters and other postal matter conveyed under public authority from one post office to another" or "the postal matter consigned at one time to or from one person or one post office or conveyed by a particular train, airplane, or ship." Webster's Third International Dictionary 1361 (3d ed. 1986). From that definition, it could be argued, as the Board does, that since Federal Express is not a public authority, it does not deliver mail. It is also plausible to contend, as Continental does, that mail includes postal matter carried by private couriers.
No Washington case has decided whether postal matter that is considered mail, if carried by the United States Postal Service, is mail if it is carried by Federal Express or another private delivery service. Furthermore, case law from other jurisdictions is not of great assistance. Some courts have narrowly defined mail as postal matter carried by the United States Postal Service. See, e.g., Northland Pioneer College v. Zarco, 179 Ariz. 44, 47, 875 P.2d 1349, 1352 (1994) (...
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