Frank v. Fischer

Petrich, J.

(concurring)—I concur in the majority's affirmance of the judgment below. However, I must register my disagreement with portions of its holdings.

I agree with the majority when it concludes that notwithstanding Fischer's extensive experience in the building trades, "he was not 'routinely' engaged in that business," as defined by RCW 18.27.010, when he contracted with Frank, and therefore he is not denied the protection of the act under the holding of Bremmeyer v. Peter Kiewit Sons Co., 90 Wn.2d 787, 585 P.2d 1174 (1978). However, the majority's conclusion that Fischer was not a contractor under the act requiring registration is not only dicta but, in my view, is wrong.

There is no question that Fischer employed members of more than one trade to construct or improve a building upon his own property, and thus fit the definition of a contractor in RCW 18.27.010. The statute requires contractors to be registered. RCW 18.27.020.6

*143Looking at the statutory definition of a contractor and seizing on the words in that section, "except as otherwise provided herein", the majority looks to the exemption in RCW 18.27.090(12) which exempts from the act:

(12) Any person working on his own property . . . but this exemption shall not apply to any person otherwise covered by this chapter who constructs an improvement on his own property with the intention and for the purpose of selling the improved property;

(italics mine) and by a tortured interpretation of the legislative intent concludes that the exemption creates "two categories of landowners . . . each of whom employs one or more members of the building trades". Majority, at 139. Those who have no intent or purpose of selling are exempt and those who have such intent or purpose are not exempt.

What the majority overlooks is the fact that the italicized language of the exemption above was not part of the act when it was adopted by the Legislature in Laws of 1963, ch. 77, § 9. It was not until 1967, 4 years later, when the Legislature adopted this additional language in Laws of 1967, ch. 126, § 3. Obviously, then, the Legislature for the 4-year period could not have intended the two categories of landowners as suggested by the majority. What then did the Legislature intend?

In order to answer that question we must resort to a number of well established rules of statutory construction. "In construing statutes, the goal is to carry out the intent of the Legislature." Seven Gables Corp. v. MGM/UA Entertainment Co., 106 Wn.2d 1, 6, 721 P.2d 1 (1986). The court's interpretation must make the statute purposeful and effective. Seven Gables Corp. v. MGM/UA Entertainment Co., supra. "Any statutory interpretation which would render an unreasonable and illogical consequence should be avoided." Seven Gables Corp. v. MGM/UA Entertainment Co., 106 Wn.2d at 6. If a statute is unam*144biguous, the meaning must be derived from the actual language of the statute. Stewart Carpet Serv., Inc. v. Contractors Bonding & Ins. Co., 105 Wn.2d 353, 358, 715 P.2d 115 (1986). Absent statutory definition, words used in a statute are to be given their usual and ordinary meaning. See Garrison v. State Nursing Bd., 87 Wn.2d 195, 550 P.2d 7 (1976). When an act is not plain, clear, and unambiguous, resort to its legislative history is necessary as an aid in determining the scope and purpose of the enactment. See Washington Fed'n of State Employees, Coun. 28 v. State, 98 Wn.2d 677, 658 P.2d 634 (1983).

Applying these principles, the court must determine what type of activity engaged in by a landowner on his own property was exempt from the act by RCW 18.27.090(12). There is obviously some difference between one who employs two or more tradespeople to construct, alter or repair structures on his own property as defined in RCW 18.27.010 and one who works on his own property. The verb work is defined in Webster's Third New International Dictionary as "to fashion or create by expending labor or exertion upon ..." Therefore, the Legislature must have meant the physical exertion of the owner. This view of the legislative purpose or intent is buttressed in part when the Legislature in RCW 18.27.010 excluded an individual who might be skilled in two or more trades or crafts from the classification of a general contractor so long as he "does all work personally without employees or other 'specialty contractors'". (Italics mine.) It is obvious that the Legislature has drawn a distinction between one who personally engages in the various types of work and one who hires others to do the same.

The majority might respond by saying that a person working on his own property does not qualify as a contractor in the first place, therefore, there is no need for such an exemption. Not so. An individual working on his own property may well fit the definition of a contractor, absent the exemption, so long as he constructs, alters, or repairs a building or structure for another. A property owner who by *145his own efforts builds, alters, or repairs a structure on his own property to the specifications and demands of the owner's tenants is obviously doing such work for another. Absent the exemption of RCW 18.27.090(12), such an individual would qualify as a contractor under the act so long as that was part of the individual's business.

There is a more reasonable explanation than that offered by the majority as to what the Legislature had in mind when it qualified the definition of a contractor property owner employing members of more than one trade for work on his property with the words, "except as otherwise provided herein", by reference to the other exemptions in RCW 18.27.090. The construction, repair, or alteration of a building by a person, firm, or corporation on his or its property through the employment of more than one trade would be exempt if the project involved the discovery or production of petroleum or gas, was located within the limits of a site under the legal jurisdiction of the federal government, involved less than $500, or was incidental to the construction or repair of irrigation ditches of regularly constituted irrigation districts.

The majority's version of legislative intent would result in an illogical, if not an absurd, result. For example, an owner of questionable financial responsibility or competence could hire several members of two or more trades to construct a large commercial building on his own property. The owner, having no intent to sell the property, would, under the majority's reasoning, be exempt from the registration, bonding, and insurance requirements under this chapter. In that situation, the acknowledged purpose of the act which is to protect those who furnish labor, materials, or equipment from financially irresponsible and incompetent contractors would be frustrated. "Any statutory interpretation which would render an unreasonable and illogical consequence should be avoided.” Seven Gables Corp. v. MGM/UA Entertainment Co., 106 Wn.2d at 6.

In sum, after considering the usual and ordinary meaning of the word "work" as used in the statute, the legislative *146history, and the reasonable and logical consequence of the interpretation, it is obvious that the exemption contained in RCW 18.27.090(12) applies to a person who by his own labor and exertion works on his own property. Fischer's activities were not so restricted, and, in my view, he was required to register under the act and may well have committed a misdemeanor for not registering.

Review granted by Supreme Court March 4, 1987.

"Registration required—Misdemeanor. It is a misdemeanor for any contractor having knowledge of the registration requirements of this chapter to offer to *143do work, submit a bid, or perform any work as a contractor without being registered as required by this chapter.