Mamo Transp. Inc. v. Williams

• Decision Date: 13 November 2008
• Docket Number: No. 08-29.,08-29.
• Parties: MAMO TRANSPORTATION, INC., Appellant, v. Artee WILLIAMS, Director Department of Workforce Services, Appellee.
• Court: Arkansas Supreme Court

289 S.W.3d 79

375 Ark. 97

MAMO TRANSPORTATION, INC., Appellant, v. Artee WILLIAMS, Director Department of Workforce Services, Appellee.

No. 08-29.

Supreme Court of Arkansas.

November 13, 2008.

Robinson, Staley, Marshall & Duke, by: Thomas B. Staley, Little Rock, AR, for appellant.

Allan Pruitt, for appellee.

JIM GUNTER, Justice.

This appeal arises from a decision of the Board of Review of the Arkansas Department of Workforce Services (the Board) finding that Appellant Mamo Transportation Inc. (Mamo) is required to pay unemployment insurance taxes for services performed by drivers for wages because Mamo failed to meet the three-prong test set out in Ark.Code Ann. § 11-10-210(e) (Supp.2007). We affirm the Board's decision.

Mamo is a Nevada corporation that provides a "drive-away" service in which it transports larger vehicles from a point of origin to a point of destination. Mamo is headquartered in Osceola, Indiana and operates throughout the forty-eight contiguous states and Canada. Mamo contracts with drivers to drive the vehicles. It has dispatch offices in Indiana, Pennsylvania, North Carolina, and Arkansas. Mamo's safety director testified that Mamo has 316 "independent contractors" on an active list. The driver calls Mamo if he or she wants to work driving a vehicle. The drivers do not contact customers directly, but provide services for customers obtained by Mamo. The price is negotiated between the driver and Mamo. If the driver makes the commitment to transport the vehicle, Mamo notifies the customer that a driver has been assigned to their load. Mamo gains a profit by paying the driver less than what the customer pays Mamo. Mamo does not have exclusive agreements with its drivers. The drivers pay for their own training, although Mamo ensures that federal safety requirements are met. The drivers are free to drive the route decided upon by the driver; they provide their own transportation once a run is completed, pay for fuel and other expenses and provide tools which might be necessary.

Sylvia Jones-Allen, a resident of Arkansas, entered into an "Independent Contractor Driver Service Agreement" with Mamo. During her first ninety days driving for Mamo, Allen drove a 13'6" truck under an 11'8" bridge, causing $9,008 worth of damage to the truck. Mamo then terminated Allen's contract. On April 14, 2003, Allen filed a request for unemployment benefits. She indicated that she was an independent contractor on the unemployment forms. Mamo agreed that Allen was an independent contractor.

Upon review, the Arkansas Department of Workforce Services ("Department") determined that Mamo "exercised sufficient direction and control over the drivers and other workers to the degree necessary to establish an employer/employee relationship." Mamo requested a fact-finding hearing, contending that the factual determination made by the Department in applying Ark.Code Ann. § 11-10-210(e)(1)(2) and (3) was not supported by the facts and that the drivers and workers were not employees of Mamo. A hearing was conducted by the Board on October 19, 2004. The Board found that Mamo was a covered employer subject to the payment of unemployment insurance taxes because it failed to meet Ark.Code Ann. § 11-10-210(e)(2).

The Arkansas Court of Appeals affirmed the Board's decision. See Mamo Transp. Inc. v. Director, Dept. of Workforce Services, 101 Ark. App. 68, 270 S.W.3d 379 (2007). We granted Mamo's petition for review on May 15, 2008. Upon a petition for review, we consider a case as though it had been originally filed in this court. Texarkana Sch. Dist. v. Conner, 373 Ark. 372, 284 S.W.3d 57 (2008).

On appeal, Mamo argues that (1) the Board "ignored the plain, ordinary and common sense meaning of the language of the statute resulting in an absurd outcome not intended by the Arkansas legislature" and (2) the contractors at issue were independent contractors not subject to Arkansas unemployment taxes. Mamo specifically argues that the Arkansas legislature did not intend for the language of Ark. Code Ann. § 11-10-210(e)(2) to describe every road and highway in the United States and Canada as a "place of business" of Mamo. In response, the Department contends that the Board's decision is supported by substantial evidence and complies with Ark.Code Ann. § 11-10-210.

We affirm the decision of the Board of Review if it is supported by substantial evidence. Coker v. Director, 99 Ark. App. 455, 262 S.W.3d 175 (2007). Substantial evidence is such relevant evidence as reasonable minds might accept as adequate to support a conclusion. Id. We view the evidence and all reasonable inferences deducible there from in the light most favorable to the Board's findings. Id. Even if the evidence could support a different decision, our review is limited to whether the Board could have reasonably reached its decision based on the evidence presented. Id.

In this case, we are called upon to construe provisions of Arkansas Code Annotated section 11-10-210. We review issues of statutory construction de novo. Ark. Comprehensive Health Ins. Pool v. Denton, 374 Ark. 162, 286 S.W.3d 698 (2008). The basic rule of statutory construction is to give effect to the intent of the General Assembly. Id. In determining the meaning of a statute, the first rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. This court construes the statute so that no word is left void, superfluous, or insignificant, and meaning and effect are given to every word in the statute if possible. Id. When the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no need to resort to rules of statutory construction. Id. However, this court will not give statutes a literal interpretation if it leads to absurd consequences that are contrary to legislative intent. Id. This court seeks to reconcile statutory provisions to make them consistent, harmonious, and sensible. Id.

Arkansas Code Annotated § 11-10-210(e) states:

(e) Service performed by an individual for wages shall be deemed to be employment subject to this chapter irrespective of whether the common law relationship of master and servant exists, unless and until it is shown to the satisfaction of the director that:

(1) Such individual has been and will continue to be free from control and direction in connection with the performance of the service, both under his or her contract for the performance of service and in fact; and

(2) The service is performed either outside the usual course of the business for which the service is performed or is performed outside of all the places of business of the enterprise for which the service is performed; and

(3) The individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.

Id. According to the statute, an employment relationship exists unless all three of the above elements are met. Here, the Board concluded that the first element was met, the second element was not met, and did not rule on the third element. Therefore, we are limited in our review to § 11-10-210(e)(2).

The Board concluded that Mamo failed to meet the second requirement of § 11-10-210(e) in that the course of business for both Mamo and the drivers is providing the delivery of vehicles, and Mamo's places of business consist of not only its office, but also the roadways on which the drivers transport the vehicles. On appeal, Mamo presents no argument that the Board was incorrect in finding that delivery of the vehicles was in the course of Mamo's business, so we will only address whether the Board erred in its finding regarding Mamo's place of business.

Looking at the language of the statute, the second prong is not met unless the service is performed outside of all the places of business of the enterprise for which the service is performed. Mamo provides a "drive-away" service for its customers by transporting various types of vehicles throughout the United States and Canada. Its business is to take vehicles from origin to destination. Therefore, the "enterprise for which the service is performed" in this case is the transportation of vehicles. Black's Law Dictionary 1169 (7th ed.1999) defines "place of business" as "a location at which one carries on a business."

The Board relied on Home Care Professionals of Arkansas, Inc. v. Williams, 95 Ark.App. 194, 235 S.W.3d 536 (2006), in making its determination that Mamo's places of business include the roadways. In Home Care Professionals, the court of appeals held that Home Care Professionals (HCP) failed to meet the second prong of the statute. HCP was a home-care referral service. HCP maintained a list of caregivers who were able to provide home-care services. Once HCP received a request for a service from a client, HCP would find a caregiver willing to perform the service. The caregiver would sign an independent contract. The client and caregiver would negotiate a schedule and the terms of the caregiver's engagement. Once the caregiver completed the service, the caregiver would turn in a time sheet and be paid by HCP the amount paid by the client minus HCP's referral fee. In holding that HCP's caregivers were not independent contractors, the court of appeals stated:

In regard to the place of business aspect of the second part of the test, an employer's place of business has been found to include not only the location of a business's office, but also the entire area in which a business conducts business. See Missouri Association of Realtors v. Division of Employment Security, 761 S.W.2d 660 (Mo.App.1988); Employment Security Commission of Wyoming v. Laramie Cabs, Inc., 700 P.2d 399 (Wyo.1985); and Vermont Institute of Community Involvement, Inc., v. Department of Employment Security, 140 Vt. 94, 436 A.2d 765 (1981). More specifically, the...