*1 68 Inc. Arkansas Northwest Recovery See generally opinion. expert’s 62, Davis, 481 Gibson (2004) (citing S.W.3d Co., Ark. 20 S.W.3d 285 Ins. Co. v. Nationwide

Appliance not bound to expert that fact-finders are accept (2000)) (stating conclusive, but should it whatever weight they as give opinion testimony it should have may disregard opinion think it to unreasonable). find be they

Furthermore, reverse and I concur in the decision to while visitation sched- with instructions reinstate previous remand us, time on the facts now before significant period ule based the situation has has If has while proceeded. passed appeal as free to enter such orders court may trial always changed, of the child. best interest be necessary protect DIRECTOR, TRANSPORTATION, INC. v. MAMO SERVICES DEPARTMENT WORKFORCE E 06-331 of Arkansas

Court Appeals 19, 2007 delivered December Opinion denied 23, 2008.] [Rehearing January *2 Thomas B. for Staley, appellant. Pruitt,

Allan Franklin for appellee. David M. Mamo Judge. Appellant, Transporta- Glover, tion, Inc., the Board of decision that it is Review’s appeals to taxes on the drivers it because pay unemployment engages it to meet failed test set forth in Arkansas Code three-prong Annotated section to determine its drivers are inde- ll-10-210(e) contractors. The of found Board Review that Mamo met the pendent first but did meet the second and because of that prong, was to address the third On Mamo unnecessary prong. appeal, argues that it met the criteria the second We affirm the Board prong. Review’s determination that Mamo did not meet the second prong and is therefore hable for taxes. payment unemployment

Arkansas Code Annotated section ll-10-210(e) (Supp. 2005) provides:

(e) Service individual for performed shall be deemed wages to be to this employment subject whether chapter irrespective exists, the common law of master and servant unless relationship and until it is shown to the satisfaction of the that: director (1)Such individual been has and will continue be free to control and direction in connection with the of the performance service, both under or her his contract for the performance fact; service and in (2)The service is either outside the usual course of the business which for the service is or is performed outside of all the business for which service is performed; (3)The individual is customarily engaged an independently trade,

established or occupation, profession, business of the same nature as that involved in the service performed.

Overview Mamo services for its customers provides “drive-away” all states and into throughout forty-eight contiguous Canada. Mamo contracts with drivers to deliver vehicles to its large homes, tractor-trailers, buses, where and motor

customers, i.e., Mamo, efficient. is not financially conventional hauling Indiana, offices and has in Indiana dispatch headquartered Arkansas, Carolina, has a list of approved North Pennsylvania, when offices driver calls one dispatch An drivers. approved take. he wants to if there is a determine trip he wants to work mile it is per the amount willing pay the driver Mamo gives deal. a better to negotiate driver is free to attempt and the trip, the driver able to on price, Mamo are agree the driver and If difference from the are derived makes the profits trip. Mamo and what pays the customer pays between what driver; contracts with any have exclusive Mamo does not driver. had at of the drivers indicated eighty-eight percent testimony was to Mamo. There in addition carrier contracts *3 least two other drivers; that the drivers are train its does not that Mamo testimony taxes; their the drivers pay their own for paying responsible meals, fuel for the vehicle being lodging, own delivered, including expenses, that drivers after home delivery; and transportation work; for the that drivers are responsible how much to choose accident, with Mamo’s liability there is an $1000 first damages testified Three Mamo drivers the balance owed. insurance paying contractors. to be considered themselves independent that they CaseHistory drivers, one of Sylvia case arose when This Jones- Mamo cancelled her Alien, benefits after filed for unemployment driver. that she was a high-risk on the basis contract first her ninety days third during was her making trip $9,000 to a caused over damages contract when she under that was too low for it under a bridge vehicle driving benefits, she for unemployment vehicle. When applied Jones- contractor. Mamo as an herself Alien identified However, the Board of Review with this designation. agreed unem- Arkansas that Mamo was exempt paying found of Arkansas meet all three it did not prongs taxes because ployment Mamo now ll-10-210(e). brings Annotated section Code appeal.

Discussion Director,39 Ark. In American Corporation Transportation 198, our 106, omitted), (citations 199 (1992) 840 S.W.2d court held: Act,

In in the order to obtain contained exemption that the show to the satisfactionof the necessary Director employer that the of all three subsections have been met. requirements Therefore, if there is sufficient evidence to support finding met, one of the three were not the casemust be requirements Review, affirmed. In decisionsof Board of this court reviewing views the evidence in the most favorable to Board’s fight them the benefit of inference that findings,giving every legitimate canbe drawn from the and will affirmthe testimony, determination of the Board if its are substantialevidence. findings supported by The issueto determine is not whether the evidencewould support some different but whether it finding, supports finding actually reached the Board. case,

In the Mamo does not make the present argument therefore, that its drivers are not issue on paid wages; is whether Mamo meets the second appeal of section prong whether the ll-10-210(e), service is either outside the performed usual course of the business for which the service is or performed outside of all the of business of the performed enterprise for which the service is This second itself is a performed. — alternative test the test is met two-part if the service is either outside the usual course of business or if the service is outside of all the of business for which the service is performed. In Home Arkansas, Williams, Care Inc. v. Professionalsof *4 194, 235 S.W.3d 536 this court held App. (2006), the HCP, was not appellant, exempt taxes paying unemployment because it had failed to two of the satisfy subparagraph statutory HCP maintained a list of exemption. who caregivers provided home-care services for the when it first HCP elderly; began, direct home-care services for the but it had elderly, evolved into a home-care referral eventually service. Clients contacted HCP and stated needed; what home-care services were collected HCP a fee for the service front and then found a up the caregiver willing perform services. The client and necessary a schedule and the caregiver negotiated terms of employment; once the the caregiver services and turned in a completed time sheet, HCP distributed the funds collected from the client less its referral fee. forty on HCP’s referral list percent Caregivers signed HCP, with independent-contractor agreements caregivers were for their own After a responsible transportation supplies. schedule was between the client and arranged the HCP caregiver, schedule,

administered the including scheduling replacements were the was unable to work. HCP’s not caregiver caregivers with to be listed HCP. exclusively court, This the Board’s decision that HCP had affirming the failed to meet the second of prong independent-contractor test, the of that test: the Board’s of second quoted analysis case, In the instant for the caring elderly necessary [HCP’s] business, and thus in-home services is within providing [HCP’s] the usual course of business. Since evidence does not establish that made, a receives benefit when a refenal is monetary simple [HCP] client, but a a when service for a a only by caregiver performed in-home services is within usual finding providing [HCP’s] course of business is particularly appropriate. test, In to the of regard business second place aspect part of business has been found to include not place employer’s office, the location of a business’s but also the entire area in which a conducts business business. See MissouriAssociation Realtorsv. of (Mo. Division EmploymentSecurity, 1988); App. Inc., Cabs, EmploymentSecurity Wyoming Commission Laramie 1985); 700 P.2d 399 and VermontInstitute (Wyo. Community Involvement,Inc., v. Department 436 A.2d 765 EmploymentSecurity, (Vt. More 1981). of an specifically, representation entity’s interest an individual of a by renders a premises premises place business. See employer’s U.S.A. v. Illi Carpetland,[Carpetland nois Ill. (Ill. 776 N.E.2d 166 Dep’t EmploymentSecurity, case, 2002)]. In the instant interest caregiversrepresent [HCP’s] fashion, on the just client’s in a premises, tangential (e.g., work result in satisfactory caregiver may referral), future but sense, in the most direct that of performing very profits. [HCP] 198-99, at at S.W.3d 540-41. The Board deter- mined that the HCP’s interest on the clients’ caregivers represented the clients’ of business. premises, thereby making premises place This court that determination. adopted

Other have reached the same conclusion. In jurisdictions Baker, Service, Limousine Inc. v. 596 N.E. 2d 795 O’Hare-Midway *5 the of (1992), Court Illinois Appellate rejected O’Hare-Midway’s that the limousine drivers their work outside argument its usual course of business. The court held that while the appellate office, course of a at the the usual did not take driving place and was not limited to office limousine space dispatching of the drivers the interests O’Hare-Midway because represented businesswas the usual course whenever they picked up passengers, Likewise, in on the traveled. added.) roadways (Emphasis Employment Inc., Cabs, 700 P.2d 399 Commission v. Laramie Security Wyoming the cited in Home Court Care (1985), Professionals,supra, Supreme cab business was held that the essence of the taxi Wyoming destination, the and conducted in cabs between customer’s origin office, court concluded that not in the and company supreme the vehicles that the service had to be considered a place of business of the taxicab Court of North Supreme company. determined in Dakota Midwest Inc. Service PropertyRecovery, v. Job Dakota, North that “the of enter N.W.2d (1991), Midwest, who was the business of prise” vehicles, repossessing extended to where the took

necessarily repossessions place.

In the case its present giving statutory language plain and the evidence in the most favorable to meaning viewing light the Board’s we hold that the Board’s decision is findings, sup- substantial evidence. Mamo drivers to ported by provides transport vehicles for its customers. As in Home Care Professionals,supra, service, here, Mamo does not receive a benefit until the monetary vehicle, therefore, driving such delivering performed; is in the usual course of business. delivery Regarding “place test, business” aspect by comparison O’Hare-Midway Limousine, Cabs, and Laramie are where supra, supra, roadways services are and the drivers Mamo’s interests performed, represent on those roadways.

Affirmed.

Pittman, Griffen, Marshall, C.J., JJ., agree. Miller, dissent. Hart JJ.,

Josephine Linker Hart, I with Judge, dissenting. agree However, Miller that this case must be reversed. I Judge write to draw attention to an separately trend this area of unsettling the law that I believe will have far-reaching consequences have not been considered I submit that apparently majority. the Board of Review’s construction of the facts of this case ratifying has allbut annulled the statusof contractor in completely this state.

74 the second of the

At issue in this case only three-part Annotated section ll-10-210(e), test forth in Arkansas Code set the usual course of whether the service is “outside all the of business of the business” or “outside of The Board of has for which the service is Review performed.” factors. erred in its on both of these findings business for both First it errs when it finds that “the course of vehicles.” This Mamo and the drivers is the delivery providing rest on an broad view that com- conclusion can absurdly only It is rather like that the misses essential distinctions. saying pletely are both It Earth is the same as Saturn because exactly they planets. a to me that while both Mamo and the drivers have role obvious vehicles, sole business is the matching moving large need to be moved with drivers owners of vehicles that large them. There was not a shred of evidence that capable moving Likewise, vehicles itself. the drivers Mamo moved the actually vehicles, but, in the their moved the at least context of actually Mamo,1 with had no role in the of their skills matching relationship to the needs of the owners of the vehicles. These distinctions are To them is tantamount that a theatrical saying pivotal. ignore role is in the business of on when his stage, only agent performing was to his client get part.

The Board of Review also erred that “Mamo’s finding office, of business consist not of its but on only roadways which the drivers vehicles.” This is remark- finding transport able in that the indicated that Mamo its role testimony offices, in its which the drivers did not visit. This rests finding inductive based examination reasoning upon upon business, but rather on the Board’s circular logic necessarily from its flawed conclusion that the drivers were em- originated i.e., were then the the drivers ployees, business was employees, place vehicles. The Board

everywhere they transported tries to dubious conclusion that because support stating efforts, from the drivers’ transport “profits” custom- vehicles “constitutes essence ofMamo’s services to its ers.” that conclusion is not Again, product logic. from the actor’s theatrical earns his but agent money performance, it does not make the an actor. agent arrange There that the drivers were free to make their own is, however, testimony large the drivers ments with owners of vehicles for subsequent transports. Essentially, were free the middleman for to cut out subsequent trips. Arkan- Home Care reliance on The majority’s Professionals Williams, (2006), Ark. sas, Inc. v. “HCP,” the Board’s “source to affirm profit” hereinafter that HCP was first I believe In the rationale is also troubling. place, *7 it. to overrule take this decided and I would opportunity wrongly decisis, However, stare I while I can accept consequences that this the extensionof the flawed HCP holding cannot accept HCP is in the instant case. clearly court has announced today notes, HCP from the case at bar. As majority distinguishable home-care services and later direct originally provided service. The HCP court found signifi- “evolved” into a referral that its Articles of declared cant that HCP’s Incorporation “pur- for the I the State is to home-care elderly.” suppose pose provide declarations that a of Arkansas has the to on the official right rely case, In the instant there is business makes to the of state. secretary no declaration of Additionally, equivalent corporate purpose. HCP its contractors to sign noncompetition list. no covenants that its customer Mamo “protects” imposed such restriction on the drivers. be

The course would to limit HCP to situations prudent where an has held out as itself service entity providing particular and access to clients. Instead has written an restricting majority as as it I is ill-advised. have opinion potentially far-reaching discussed how actors now be viewed as the already may potentially of their this would employees agents. Arguably, reasoning apply However, all as well. I believe the reach of employment agencies far There are this hundreds of farmers in opinion greater. poultry this state that raise chickens under contract with Foods. Are Tyson now the rice farmers in Could they state Tyson? “employees” be declared I Riceland?

suddenly “employees” suspect the court of has a Pandora’s Box. appeals unwittingly opened

I believe that this case should be reversed remanded to the Board of Review. Miller, S. Judge, dissenting.

Brian

I. Introduction This case us to determine the requires meaning phrase business,” which is found in Arkansas Code Annotated “places 11-10-210, section the statute when defining “employment,” which work are determining relationships subject unemploy- ment taxation. determination that The majority’s of business include every alley, roadway, highway, freeway broad,

the United States and Canada is too to an unrea- leading sonable result that is unsupported by plain language statute.

There is no doubt that Arkansas Code Annotated section is a 11-10-210 broad statute that almost very requires every entity contractors the State of utilizing independent Arkansas to pay taxes result, for those contractors. unemployment To reach this the statute defines as almost broadly employment of whether the common provided, law “irrespective relationship of master and servant Ann. exists.” Ark. Code ll-10-210(e).1 § statute, however, a small number of work relation- exempts from the definition of ships that is the issue “employment,” this case. presented by

II. Background Inc. contracts Appellant with its *8 Transportation, customers to deliver vehicles where large conventional hauling not efficient. It then financially contracts with drivers to deliver vehicles for its customers. large Sylvia contracted Jones-Alien with Mamo to deliver vehicles for Mamo’s customers. Mamo was to deliveries to required assign she was not Jones-Alien to deliveries from required Mamo. accept was under Jones-Alien months, contract for three approximately which time she during made three deliveries. She had an accident on her third and Mamo decided not to delivery future deliveries to assign any her. then filed a claim for benefits. unemployment Jones-Alien It is awas undisputed common-law inde- Jones-Alien contractor and was not Mamo’s pendent employee. Jones-Alien wrote that she was an contractor on her independent application for benefits. She was free to decide when and unemployment if she would deliver vehicles for Mamo’s customers and Mamo was free to decide when and if it would use her to deliver vehicles for its customers. wanted, She was free to contract with whomever she wanted, whenever she including Mamo was competitors. 1 Citizens, remain free to however, contract for their labor and the independently recognize courts among things, contractor when, other determin relationships ing for contract and tort e.g.,ReynoldsHealth Care Inc. v. liability See, Servs., disputes. HMNH, (2005) (breach contract); Inc.,364 Ark. 217 S.W.3d797 v. Conagra Inc., Foods, Draper (2005) (tort). 220, 212 S.W3d 61 contractors whenever free to contract with other independent to ever and was not assign delivery wanted Jones- the tools of her train her or her with Alien. Mamo did not provide includ- taxes and her own trade. She her own expenses, paid paid direct her to how to meals and fuel. Mamo did not as ing lodging, deliver the vehicles and she was free to deliver vehicles manner she chose. true,

While all of this is Arkansas’ unemployment compen- limited the common law definition of sation act is not employ- Arkansas Code Annotated ment. As out pointed majority, section ll-10-210(e) provides: individual for shall be deemed

(e) Service performed by wages of whether subject to be employment chapter irrespective exists, the common law of master and servant unless relationship and until it 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 service, both under his or her contract for the performance fact; of service and in

(2) The service is either outside the usual course of performed the business for which the service is or is outside of all the business of the service is performed; (3) individual is in an customarily engaged independently trade,

established or business of the same occupation, profession, nature as that involved in the service performed.

Mamo does not received a term wages, dispute *9 which is defined as “all remuneration for broadly paid personal Mamo, services. . . .” Ark. Ann. Code 11-10-215 2007). (Supp. § therefore, had to test to he from satisfy three-prong exempted taxes for The Arkansas paying unemployment Depart- Jones-Alien. ment of Workforce Service determined Mamo met the first of the test as in section The provided ll-10-210(e)(l). Depart- ment, however, found that Mamo failed to the second satisfy prong, Mamo to show that the service required provided by Jones- Alien was outside of all the of business of the “performed places for which the service is as section enterprise performed,” required by Because Mamo was all three ll-10-210(e)(2). satisfy 78 test, did not address the third

prongs Department prong, which is found in section 11-10-210(e)(3). Arkansas, Home Care Inc. majority, citing Professionalsof Williams, 194, 95 Ark. and a (2006), App. states,

number of cases from other found the Department’s logic sound and I affirms. and would reverse. disagree

III. Mamo Inc.wasnot Transportation, Sylvia Employer Jones-Allen’s

A. The For WhichServiceis Enterprise Performed is, The essential did all of her question perform Jones-Alien service “outside all of business of the places enterprise which the service is See Ark. Ann. Code 11-10- performed?” § Board, it was not 210(e)(2). addressed we must Although what was the for which the begin by determining “enterprise See id. Was Mamo the performed” [was] Jones-Alien? for which service or was each of enterprise Jones-Alien Mamo’s customers the The record is clear that Mamo enterprise? contracted to deliver the vehicles for its customers and then contracted with its subcontractors to make the deliveries. Mamo carrier, was not a broker but was a licensed and its transportation to its customers were “farmed out” to obligations its drivers. See Carter, 418, Inc. v. Ark. 98 255 TransplaceStuttgart, S.W.3d App. Because Mamo was (2007). to its ultimately responsible customers for the service Mamo was the provided by Jones-Alien, to which service. Had enterprise provided Jones-Allen broker, been a claim for transportation benefits Jones-Allen’s would have been a non-starter because the to which she enterprise customer, service would have been the provided Mamo. B. Mamo’sPlaces Business Mamo was the to which Although service, Mamo was exempt paying unemployment taxes for her because she did not those services for Mamo perform at of its of business. See Ark. Code Ann. 11—10— § should 210(e)(2). We not read into the statute but we anything must read the statute its words their literally give ordinary in common usually v. Ark. accepted meaning language. Phillips Servs., 450, Human 85 Ark. 158 S.W.3d Dep’t App. (2004); Comm’n, Brandonv. Ark. Pub. Serv. 992 S.W.2d business, (1999). using usually accepted *10 facilities, are located its are in common language, meaning Charlotte, Rock, Arkansas; Indiana; North Osceola, Little is clear that Carolina; The record and Bloomsburg, Pennsylvania. of these for Mamo at no services Therefore, outside of all of her services were facilities. of business. places business that Mamo’s The places majority’s holding in the United include freeway every alley, roadway, highway, not with the common meaning and Canada does States comport intended to in the statute. Had the found legislature language services, conceivable in which Mamo cover every place have Mamo to show the service the statute would of all of the in which the outside “performed places services,” not “outside of all the of business places performs enterprise.” statue,

In of its majority expansive reading support Williams, Arkansas, Inc. v. relies on Home Care supra. Professionalsof HCP, In Home Care we held that the was Professionals, appellant, taxes for the in-home exempt paying unemployment that it to its clients. Id. It is that Home caregivers assigned arguable Care was decided. See id. dissent- (Baker, wrongly J., Professionals We, however, save that for another because will issue day, ing). this case is from Home Care clearly distinguishable Professionals. out, As the in Home Care majority points opinion Professionals we the Board’s determination that “the caregivers adopted repre- interest on the client’s sented HCP’s premises, thereby making clients’ a of business.” Home Care Professionals, premises place supra. we extended the added.) (Emphasis Although phrase “places clients, business” to include the homes of HCP’s we did not extend that to include conceivable that the phrase every place traveled in an effort to And that is serve HCP’s clients. caregivers us; the rub of the case before takes the next majority’s opinion of business” to include a step expanding phrase “places number of none of which would be considered greater places, of business reasonable ordinary person. extends the of business” be- majority phrase “places defined such as the homes and business locations well yond it to conceivable of customers. It reaches out and applies every in which an contractor could possibly place provide case, for its contractor’s customers. In the present prime *11 80

this includes specifically and free- every alley, roadway, highway, in the United absurd, States and Canada. way Although seemingly the definition also majority’s includes all of the railways in, and all of the air waterways above the United States and space Canada. This is the case because Mamo’s contractors were not restricted in the method could by have the they vehicles delivered. it ruin, have caused financial Although may could have to have the vehicles arranged delivered by Jones-Alien Therefore, some method other than Mamo’s driving. of business include route in the every possible United States shipping unreasonable, Canada. Not is this it is not what the Indeed, intended. legislature contradicts the common meaning of the statute. language There is a also distinction between secondary this case and Home Care was Although an inde- clearly Professionals. Jones-Allen contractor, it is not clear pendent whether the in Home caregivers Care were For truly addition independent. example, Professionals to customers, its to its referring HCP also caregivers administered the work schedules. Id. When a care-givers’ was unable caregiver visit, to make a scheduled in-home HCP was responsible to meet the finding replacement caregiver’s Id. obligation. Additionally, contracts with caregivers’ HCP contained non- clauses, which restricted compete of its ability caregivers contract for their labor once their with HCP con- relationship cluded. Id. also relies on a majority number of cases from foreign jurisdictions its of support section interpretation 11—10— I will 210(e)(2). cases, a detailed give of those analysis because I stand firm in to the common deferring meaning language Moreover, section ll-10-210(e)(2). there are cases from other which are in jurisdictions direct to the results reached opposition cases cited by foreign See, Commissioner majority. e.g., Div. Inc., Assistancev. Town Taxi Unemployment Cod, Cape Mass. Ct. N.E.2d 430 (2007) (finding services taxi drivers provided occurred outside of the business of the taxi premises company).

IV Conclusion This court’s interpretation ofbusiness” phrase “places should be constrained to the common of that meaning For phrase. reason, Osceola, ofbusiness are its facilities in Carolina; Charlotte, Arkansas; Rock, North Indiana; Little never Because Bloomsburg, Pennsylvania. facilities, the decision I would reverse at these to Mamo services Services. of Workforce the Department *12 Insurance and Farmers Group THE STEAK HOUSE L. WEIGEL Misty CA 07-34 of Arkansas

Court Appeals 19, 2007 December delivered Opinion