Util. Serv. Co. Inc. v. the Dep't of Labor

• Decision Date: 01 March 2011
• Docket Number: No. SC 90963.,SC 90963.
• Citation: Util. Serv. Co. Inc. v. the Dep't of Labor, 331 S.W.3d 654 (Mo. 2011)
• Parties: UTILITY SERVICE CO., INC., Respondent,v.The DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS, and the Labor and Industrial Relations Commission of Missouri, Appellants.
• Court: Missouri Supreme Court

331 S.W.3d 654

UTILITY SERVICE CO., INC., Respondent,

v.The DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS, and the Labor and Industrial Relations Commission of Missouri, Appellants.

No. SC 90963.

Supreme Court of Missouri, En Banc.

March 1, 2011.

Jeremiah J. Morgan, attorney general's office, Jefferson City, for Appellants.Charles Hatfield, Tricia A. Workman, Jeremy A. Root, Stinson Morrison Hecker LLP, Jefferson City, for Respondent.MARY R. RUSSELL, Judge.

At issue in this case is whether Missouri's Prevailing Wage Act (the Act), sections 290.210 to 290.340, RSMo 2000,¹ applies to the contracted work performed on a city's water storage tank and tower.The contractor maintains that the work is “maintenance work” that is exempt from coverage under the Act.The Missouri Department of Labor and Industrial Relations(“the Department”) asserts that the work at issue is “construction” that is subject to the Act.The trial court found in favor of the contractor, and the Department appeals.²This Court finds that the contracted work at issue is “construction” under the terms of the Act, and the trial court's judgment is reversed.

I.Background

Monroe City entered into a “Water Tank Maintenance Contract” with Utility Services, Inc.(Contractor) for work on the City's elevated water storage tank and tower.In relevant part, the contract provided:

This agreement outlines the Company's responsibility for the care and maintenance of the [City's] water storage tank.Care and maintenance shall include the following:

The Company will annually inspect and service the tank....

...[T]he tank will be completely drained and cleaned....After cleaning is completed, the interior will be thoroughly inspected and disinfected....

The Company shall furnish all specialized services including engineering and inspection services needed to maintain and repair the tank and tower....These repairs include steel replacement, steel parts, expansion joints, water level indicators, sway rod adjustments, manhole covers/gaskets, and other component parts of the tank or tower.

The Company will clean and repaint the interior and/or exterior of the tank at such time as complete repainting is needed....

....

The Company will install an anti-climb device on the access ladder to prevent unauthorized persons from climbing the tower.

A lock will be installed on the roof hatch of the tank....

The Company will provide emergency service to handle any problems....

The Company will furnish relief valves, if needed, to install in the water system so the [City] can pump direct and maintain water pressure while the tank is being serviced.

This case arose after Contractor and the Department disagreed whether payment of prevailing wages was required for the contracted work.

The Act declares “that a wage of no less than the prevailing hourly rate of wages for work of a similar character in the locality in which the work is performed shall be paid to all workmen employed by or on behalf of any public body engaged in public works exclusive of maintenance work.”Sec. 290.220.The Act further provides: “Not less than the prevailing hourly rate of wages ... shall be paid to all workmen employed by or on behalf of any public body engaged in the construction of public works, exclusive of maintenance work.”Sec. 290.230.1(emphasis added).

Contractor sought a written statement from the Department outlining whether Contractor was required to pay prevailing wages for its annual inspections, painting, and welding repairs for the water storage tank.Contractor maintained that the contracted work was exempt from the prevailing wage requirements because it was “maintenance work” as defined in section 290.210(4), which provides: “ ‘Maintenance work’ means the repair, but not the replacement, of existing facilities when the size, type or extent of the existing facilities is not thereby changed or increased.”

The Department, however, contended that the contracted work required payment of prevailing wages because it was “construction” as defined in section 290.210(1), which provides: “ ‘Construction’ includes construction, reconstruction, improvement, enlargement, alteration, painting and decorating, or major repair.”

In a letter to Contractor, the Department highlighted the statutory definitions of “maintenance work” and “construction,” and declared:

The annual, or periodic, inspection of a water tank would not be considered covered construction under the [Act].However, painting and welding of a tank would be considered covered construction subject to the [Act's] requirements.Painting is specifically listed under the definition of “Construction” and welding repairs would be considered an improvement and/or major repair.

Contractor responded that it believed that the contracted work was “maintenance work” because it did not change the size, type, or extent of the existing water storage tank or tower.It classified its work as “routine maintenance ... as necessary.”Contractor also asserted that the inclusion of painting in the statutory definition of “construction” was meant to ensure payment of prevailing wages on new construction projects.It argued that painting on an unchanged, existing facility is “maintenance work” under the terms of the Act.

The Department again informed Contractor that the contracted work required payment of prevailing wages because it “amounts to the reconstruction of the water tower, as well as its painting, both of which bring [the] work within the definition of ‘construction’ ” under the Act.The Department also noted that “improvement,”“alteration,” and “major repair” work was covered within the definition of “construction” in section 290.210(1).The Department further stated: “[O]ne factor that will cause particular work to fall into the ‘major repair’ category is whether the work requires the replacement of major constituent parts of the public work on which the workers are providing labor.”

Contractor eventually filed a petition for declaratory judgment against the Department, seeking a declaration that the contracted work was “maintenance work” exempt from the Act.The parties filed cross motions for summary judgment, and the trial court entered judgment in favor of Contractor.The trial court found that the contracted work did not require payment of prevailing wages because it was “maintenance work” in that it did not increase or change the size, type, or extent of the existing water storage tank or tower.The Department appeals.

Standard of Review

Because appellate review of summary judgment is de novo, determining whether the judgment in this case was proper requires consideration of the same factors the trial court assessed when issuing the judgment in Contractor's favor.SeeITT Commercial Fin. Corp. v. Mid–Am. Marine Supply Corp.,854 S.W.2d 371, 376(Mo. banc 1993).Summary judgment is appropriate where the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute, a right to judgment as a matter of law.Id. at 381–82.

In deciding whether the work under the contract is subject to prevailing wages, this Court must look to the language of the Act as a guide.SeeUnited Pharm. Co. of Mo., Inc. v. Mo. Bd. of Pharm.,208 S.W.3d 907, 909(Mo. banc 2006).Statutory analysis requires ascertaining the intent of the legislature, as expressed in the words of the statute.Id.Statutory language is given its plain and ordinary meaning.Id. at 910.Rules of statutory construction may be applied to resolve any ambiguities if the legislative intent is undeterminable from the plain meaning of the statutory language.Id.Each word, clause, sentence, and section of a statute is given meaning.Neske v. City of St. Louis,218 S.W.3d 417, 424(Mo. banc 2007).No portion of a statute is read in isolation, but rather is read in context to the entire statute, harmonizing all provisions.Id.

Because the Act is a remedial statute intended to prevent payment of substandard wages for work on public works projects,³ it “should be construed so as to meet the cases which are clearly within [its] spirit or reason ... or within the evil which it was designed to remedy, provided such interpretation is not inconsistent with the language used.”State ex rel. LeFevre v. Stubbs,642 S.W.2d 103, 106(Mo. banc 1982)(internal quotations omitted).Doubts about the applicability of a remedial statute are resolved in favor of applying the statute.Seeid.Accordingly, exceptions or exclusions to a remedial law are narrowly construed.Cf.id.;State v. Breckenridge,219 Mo.App. 587, 282 S.W. 149, 150(1926)(“As a rule, exceptions in statutes are strictly construed.”).

“Construction” & “Maintenance Work” Under The Prevailing Wage Act

The issue in this case is whether the contracted work falls under section 290.210(1)'s definition of “construction,” which requires payment of prevailing wages.

Section 290.210(1) provides a broad definition of “construction” that “includes construction, reconstruction, improvement, enlargement, alteration, painting and decorating, or major repair.”Contractor argues that the application of this definition is limited by the definition of “maintenance work” under section 290.210(4).Contractor contends that work is “maintenance work,” not “construction,” if it is “the repair, but not the replacement, of existing facilities when the size, type or extent of the existing facilities is not thereby changed or increased.”

Although the parties apparently concede that some quantitative value of work transforms “maintenance work” to “construction,” no statute provides a guide for assessing the magnitude of work that requires payment of prevailing wages for “construction” work under section 290.210(1).Without such statutory guidance, this Court considers the Department's interpretation and construction of the Act.SeeForemost–McKesson, Inc. v. Davis,488 S.W.2d 193, 197(Mo. banc 1972)(noting that “[t]...