FFE TRAN. SER. v. IND. CLAIM APPEALS OFFICE, 03CA0622.

• Decision Date: 20 May 2004
• Docket Number: No. 03CA0622.,03CA0622.
• Parties: FFE TRANSPORTATION SERVICES, INC., Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado and Laurel Butts, Respondents.
• Court: Colorado Court of Appeals

93 P.3d 630

FFE TRANSPORTATION SERVICES, INC., Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado and Laurel Butts, Respondents.

No. 03CA0622.

Colorado Court of Appeals, Div. IV.

May 20, 2004.

Clisham, Satriana & Biscan, L.L.C., Keith E. Mottram, Denver, Colorado, for Petitioner.

Ken Salazar, Attorney General, Laurie Rottersman, Assistant Attorney General, Denver, Colorado, for Respondent Industrial Claim Appeals Office.

Weddell & Haller, P.C., Paul H. Haller, Colorado Springs, Colorado, for Respondent Laurel Butts.

Opinion by Judge GRAHAM.

Petitioner, FFE Transportation Services, Inc., seeks review of a final order of the Industrial Claim Appeals Office (Panel) determining that it was liable for workers' compensation benefits as the statutory employer of Laurel Butts (claimant). We conclude that the Panel misperceived the statutory scheme that excludes certain drivers, including claimant, from the status of statutory employee, and therefore, we set the order aside.

The facts are undisputed. Claimant was employed as a long-distance truck driver pursuant to a written employment agreement with D. Grego Trucking Co. D. Grego had a conforming lease agreement with FFE, a contract carrier, and claimant was not a party to that agreement. D. Grego was uninsured for workers' compensation when claimant suffered two work-related injuries; however, D. Grego and claimant were insured under an occupational accident policy, similar to a workers' compensation policy, which paid benefits to claimant. Claimant was terminated without fault on May 2, 2000, and a hearing was conducted concerning temporary disability benefits for the period from May 2, 2000, through March 15, 2001.

The administrative law judge (ALJ) found that FFE conducted its trucking business by contracting out its work to independent contractors such as D. Grego. The ALJ also found that the lease agreement between D. Grego and FFE met the requirements of an independent contractor agreement under § 40-11.5-102, C.R.S.2003. However, because claimant was not a party to that lease agreement, the ALJ determined that claimant was not "working ... under a lease agreement" within the meaning of § 8-40-301(5), C.R.S.2003, and, therefore, was FFE's statutory employee.

On review, the Panel reasoned that the term "under" was ambiguous in the context of § 8-40-301(5). After considering the legislative history, the Panel construed § 8-40-301(5) to be limited to circumstances where the claimant is a party to the lease agreement with the contract carrier. The Panel then affirmed the ALJ's order obligating FFE to pay claimant temporary disability benefits. We conclude that the Panel erred in so limiting the application of § 8-40-301(5).

We agree with FFE that the term "under" as used in § 8-40-301(5) is not ambiguous and that the plain meaning of the statute determines claimant is not a statutory employee of FFE.

Section 8-41-401, C.R.S.2003, establishes the circumstances when statutory employment exists. Section 8-41-401(7), C.R.S.2003, however, provides that "[t]his section shall not apply to any person excluded from the definition of `employee' pursuant to section 8-40-301(5)." Section 8-40-301(5) states: "`Employee' excludes any person who is working as a driver under a lease agreement pursuant to section 40-11.5-102, C.R.S., with a common carrier or contract carrier."

Determining "under" to be ambiguous, the Panel construed § 8-40-310(5) and related statutory provisions to mean that before a driver could be excluded from the class of statutory employees, the driver had to be the independent contractor who was a signatory to a lease directly with the contract carrier. We discern no ambiguity in § 8-40-301(5) and conclude that "employee" also excludes a driver who is working for an independent contractor operating under a conforming lease with a contract carrier.

Section 8-40-301(6), C.R.S.2003, provides that "[a]ny person working as a driver with a ... contract carrier ... shall be offered workers' compensation insurance coverage ... or similar coverage consistent with the requirements set forth in section 40-11.5-102(5), C.R.S." Here, it is undisputed that the lease contract conformed to the provisions of § 40-11.5-102(5).

A term is ambiguous if it is subject to more than one meaning. See Longmont Toyota, Inc. v. Indus. Claim Appeals Office, 85 P.3d 548 (Colo.App.2003)

(cert. granted on other grounds Mar. 8, 2004).

As relevant here, the word "under" means "below: situated beneath: within the group-or designation of." Webster's Third New International Dictionary 2487 (1986). Placing this item in context with the related statutory provisions, we conclude that the legislature intended to exclude independent contractors and their drivers from the class of statutory employees.

Section 8-40-301(5) specifically refers to drivers as opposed to independent contractors. This is in...