(dissenting)—I dissent. The majority opinion seems to apply a quantitative analysis to the plaintiffs business activities in determining whether RCW 46.71, sometimes referred to as the Automotive Repair Act, governs the claim now on appeal. Considerable emphasis is placed on plaintiffs activities of repairing heavy logging equipment most of which is never operated on the highways of the state. I prefer to focus on the particular activities which give rise to this litigation. The dispositive question, it seems to me, is whether the act applies to the plaintiff who engages in the business of making repairs to logging trucks, which repairs are commonly performed in a repair shop by a motor vehicle mechanic, even though a substantial if not a major part of the plaintiff's activities is the business of repairing heavy equipment other than motor vehicles. Thus stated, I think the answer is obvious and I would reverse the judgment below.
The majority's attempt to distinguish this case from I-5 Truck Sales & Serv. Co. v. Underwood, 32 Wn. App. 4, 645 P.2d 716 (1982) is unpersuasive. The claimed distinguishing factor the majority relies on is that there the parties con*735ceded the act applied to them. What was conceded was that the act applies to the furnishing of parts and labor for the repair of trucks. I-5, 32 Wn. App. at 8. A fair reading of the act leads one to the inescapable conclusion that the act indeed applies to the furnishing of parts and labor for the repair of trucks and is not limited to automobiles as the majority implies.
The majority has set forth the pertinent statutory definitions of "automotive repairman" and "automotive repairing." "Automotive repairing" includes repairs to vehicles commonly performed in a repair shop by a motor vehicle mechanic. An automotive repairman is a person who engages in the business of repairing motor vehicles.
RCW 46.04.670,2 which defines a vehicle, clearly applies to the logging truck repaired by the plaintiff. The logging truck also fits the definition of a motor vehicle in RCW 46.04.320,3 which distinguishes an automotive repairman from other repairmen.
The quote from Murphy v. Campbell Inv. Co., 79 Wn.2d 417, 486 P.2d 1080 (1971) is misleading when read in isolation from the issue then before the court. There, the court was faced with the question of whether a specialty contractor was barred by RCW 18.27 (contractors' licensing act) from seeking recovery for completed work.
Although the contractor did have in force the required public liability and property damage insurance and was otherwise qualified for a contractor's license, he neglected *736to include proof of insurance in his application for a license. The contractor resubmitted his application with proof of insurance and the license was thereafter promptly issued. The contract for the disputed work was entered into between the time of the original and resubmitted application for a license. The contractor was licensed during a considerable portion of the time the work contracted for was done. Nevertheless, the owner contended that the failure of the contractor to be licensed at the time the contract was entered into barred the claim. The court rejected this defense and held that the contractor's substantial compliance with the act permitted him to seek judicial recovery of his claim. This was the backdrop for the court's pronouncement which the majority here relies on. On those facts the court determined that there was substantial compliance with the statute to authorize judicial enforcement of the claim. It is not authority to conform the legislative enactment to what we think it ought to be.
I believe the holding of the court in Courtright v. Sahlberg Equip., Inc., 88 Wn.2d 541, 563 P.2d 1257 (1977), more appropriately applies to this case, wherein it was said at page 545:
It might very well be that it would be wiser to provide by legislation for the result contended for by respondent workman. We may not, however, under the guise of construction substitute our view for that of the legislature. Anderson v. Seattle, 78 Wn.2d 201, 202, 471 P.2d 87 (1970); State ex rel. Bolen v. Seattle, 61 Wn.2d 196, 198, 377 P.2d 454 (1963). We are not a super legislature.
In my view this case is indistinguishable from I-5 Truck Sales & Serv. Co. v. Underwood, supra, and the judgment below should be reversed.
Reconsideration denied June 9, 1983.
Review granted by Supreme Court August 12, 1983.
RCW 46.04.670 states:
"'Vehicle' includes every device capable of being moved upon a public highway and in, upon, or by which any persons or property is or may be transported or drawn upon a public highway, excepting devices moved by human or animal power or used exclusively upon stationary rails or tracks, except that mopeds shall be considered vehicles or motor vehicles for the purposes of chapter 46.12 RCW, but not for the purposes of chapter 46.70 RCW."
RCW 46.04.320 states:
"'Motor vehicle' shall mean every vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails."