                 IN THE SUPREME COURT OF THE STATE OF IDAHO
                                Docket No. 40462


WESTERN HOME TRANSPORT, INC.,                       )
                                                    )   Boise, January 2014 Term
     Claimant-Appellant,                            )
                                                    )   2014 Opinion No. 19
v.                                                  )
                                                    )   Filed: February 11, 2014
IDAHO DEPARTMENT OF LABOR,                          )
                                                    )   Stephen W. Kenyon, Clerk
    Respondent.                                     )
_____________________________________


       Appeal from the Industrial Commission of the State of Idaho.

       The decision of the Commission is vacated and this case is remanded
       for further proceedings consistent with this Opinion. Costs on appeal
       are awarded to appellant. No attorney’s fees are awarded.

       David H. Leroy, Boise, attorney for appellant.

       Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, attorney for
       Respondent. Cheryl George argued.

       Holden, Kidwell, Hahn & Crapo, PLLC, Idaho Falls, amicus curiae.
                              __________________________

W. JONES, Justice
                                    I. NATURE OF THE CASE
       The Idaho Department of Labor (the Department) determined that Western Home
Transport, Inc. (Western) owed $13,277.93 in unemployment insurance taxes and penalties
because the owners/operators who hauled goods interstate for Western were engaged in covered
employment under Idaho’s Employment Security Law. On appeal by Western, the Idaho
Industrial Commission (the Commission) affirmed the Department’s decision. Western now
appeals the Commission’s decision to this Court. The decision of the Commission is vacated and
the case is remanded for further proceedings consistent with this opinion.
                        II. FACTUAL AND PROCEDURAL BACKGROUND
       Western is an Idaho corporation that facilitates the interstate transportation of oversized
mobile homes from shippers to purchasers. Western does not own any equipment to transport the
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homes. Instead, Western leases equipment from owner/operators. The owner/operators then use
their own equipment to transport the homes for Western. All of Western’s owner/operators
transport the homes with Western’s motor carrier authority through the U.S. Department of
Transportation (DOT), hereinafter referred to as DOT authority. Under the terms of the lease,
and required by federal law, Western has exclusive possession, use, and control of the
owner/operators’ equipment. Truth-in-Leasing Regulations, 49 C.F.R. § 376.12(c)(1) (2012).
Western pays the owner/operators a percentage of each haul.
       Due to an inquiry from the Department, a tax auditor with the Department audited
Western’s records covering January 1, 2008, through December 31, 2010. The auditor issued
Western a “Redetermination of Employer’s Unemployment Insurance Tax Liability” and
concluded that the remuneration received by Western’s owner/operators during the audit period
was wages for services performed in covered employment under Idaho’s Employment Security
Law. Consequently, the Department imposed an unemployment insurance tax liability of
$13,277.93 on Western for the audit period.
       Western timely appealed the Department’s redetermination. An appeals examiner held a
hearing and subsequently affirmed the Department’s decision. Western then appealed to the
Commission. After a de novo review of the record, the Commission affirmed the Department’s
decision. Western appeals the Commission’s decision to this Court. We vacate and remand.
                                  III. STANDARD OF REVIEW
       This Court exercises free review of the Commission’s legal conclusions. Giltner, Inc. v.
Idaho Dep’t of Commerce & Labor, 145 Idaho 415, 418, 179 P.3d 1071, 1074 (2008).
                                         IV. ANALYSIS
        “Idaho’s Employment Security Law provides assistance for workers who face
unemployment through no fault of their own.” Giltner, 145 Idaho at 419, 179 P.3d at 1075
(citing I.C. § 72-1302). “Under the established system, ‘covered employers’ are required to
contribute, by way of a tax on wages paid employees for services rendered in ‘covered
employment,’ to the unemployment security fund.” John L. King, P.A. v. Dep’t of Emp’t, 110
Idaho 312, 313, 715 P.2d 982, 983 (1986).
       Covered employment is “an expansive term” that “sweeps within its purview employees
and independent contractors alike.” Software Assocs., Inc. v. Dep’t of Emp’t, 110 Idaho 315, 316,
715 P.2d 985, 986 (1986). “‘Covered employment’ means an individual’s entire service


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performed by him for wages or under any contract of hire, written or oral, express or implied, for
a covered employer or covered employers.” I.C. § 72-1316(1). “Wages” include “[a]ll
remuneration for personal services from whatever source, including commissions and bonuses
and the cash value of all remuneration in any medium other than cash.” I.C. § 72-1328(1)(a).
Unless the putative employer shows that an exemption applies, “[s]ervices performed by an
individual for remuneration shall, for the purposes of the employment security law, be covered
employment.” I.C. § 72-1316(4); Excell Constr., Inc. v. Dep’t of Labor, 141 Idaho 688, 694, 116
P.3d 18, 24 (2005).
       The putative employer must satisfy a two-prong test in I.C. § 72-1316(4) “to merit an
exemption from the presumption that services for remuneration are covered employment.”
Giltner, 145 Idaho at 419, 179 P.3d at 1075. Under I.C. § 72-1316(4), the putative employer
must show: “(a) That the worker has been and will continue to be free from control or direction
in the performance of his work, both under his contract of service and in fact; and (b) That the
worker is engaged in an independently established trade, occupation, profession, or business.”
I.C. § 72-1316(4). The putative employer must demonstrate both prongs in I.C. § 72-1316(4) to
overcome the presumption of covered employment. Giltner, 145 Idaho at 420, 179 P.3d at 1076.
“[E]xemptions from coverage are narrowly construed.” John L. King, P.A., 110 Idaho at 313,
715 P.2d at 983.
       This Court in Giltner issued a bright-line rule for the second prong in I.C. § 72-1316(4)
specific to the interstate trucking industry. At issue in Giltner was whether the owner/operators
used by a motor carrier to haul goods interstate were engaged in covered employment under
Idaho’s Employment Security Law. 145 Idaho at 418, 179 P.3d 1074. The Court in Giltner
recognized that owner/operators were “solely dependent” on the motor carrier’s “DOT authority
to haul goods in interstate commerce” and then determined that “[t]herefore, as a matter of law,
they could not be engaged in an independently established trade, occupation, profession or
business.” Id. at 420, 179 P.3d at 1076. Due to this new bright-line rule, the Court concluded that
the owner/operators were engaged in covered employment because the motor carrier could not
satisfy the second prong in I.C. § 72-1316(4). Id.
       This rule from Giltner, which relied on the source of the owner/operator’s DOT authority
to determine whether the owner/operator was engaged in an independently established trade,
occupation, profession or business, had wide application in the trucking industry. Giltner

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categorically determined any motor carrier that used owner/operators to haul goods with the
motor carrier’s DOT authority would be unable to demonstrate that those owner/operators were
engaged in an independently established trade, occupation, profession or business under the
second prong in I.C. § 72-1316(4), unless the owner/operator had his own DOT authority.
Giltner, 145 Idaho at 420 n.2, 179 P.3d at 1076 n.2; Hernandez v. Triple Ell Transport, Inc., 145
Idaho 37, 175 P.3d 199 (2007). Unable to satisfy the second prong, a motor carrier with
owner/operators hauling goods with the motor carrier’s DOT authority was effectively precluded
from demonstrating that the owner/operators were exempt from covered employment—even if
other material facts pertaining to the second prong supported a contrary conclusion. In the
present case the Commission strongly indicated the evidence supported the independence of the
owner/operators, but it was bound by the per se rule of Giltner and therefore ruled the
owner/operators were employees of Western as a matter of law.
       “When there is controlling precedent on questions of Idaho law ‘the rule of stare decisis
dictates that we follow it, unless it is manifestly wrong, unless it has proven over time to be
unjust or unwise, or unless overruling it is necessary to vindicate plain, obvious principles of law
and remedy continued injustice.’” Greenough v. Farm Bureau Mut. Ins. Co. of Idaho, 142 Idaho
589, 592, 130 P.3d 1127, 1130 (2006) (quoting Houghland Farms, Inc. v. Johnson, 119 Idaho
72, 77, 803 P.2d 978, 983 (1990)). “While we are cognizant of the importance stare decisis plays
in the judicial process, we are not hesitant to reverse ourselves when a doctrine, a defense, or a
holding in a case has proven over time to be unjust or unwise.” State v. Maidwell, 137 Idaho 424,
426, 50 P.3d 439, 441 (2002).
       Employing the single factor of the source of the owner/operator’s DOT authority has
proven unjust, unwise, and incorrect because it fails to consider the nature of the
owner/operator’s business, which serves a distinct market in the interstate trucking industry. The
business or service provided by an owner/operator is not the transportation of goods for
manufacturers or shippers; rather, it is the transportation of goods for motor carriers—a point
never raised by either party or discussed in the Giltner decision. Many owner/operators are
solely dependent on the motor carrier’s DOT authority, and this dependence is an intentional and
fundamental part of the motor carrier-owner/operator relationship. The fact that an
owner/operator may or may not have his own DOT authority is completely inconsequential and
irrelevant for him to provide his services to a motor carrier, whereas it would be critical in

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hauling for a manufacturer or shipper. In that case the owner/operator would use his own DOT
authority. Moreover, federal law and regulations require that an owner/operator operates under
the motor carrier’s DOT authority, even if the owner/operator has his own DOT authority. 49
U.S.C. § 14102; 49 C.F.R. §§ 376.1–376.2, 376.11–376.12, 390.11. In other words, an
owner/operator hauling goods for a motor carrier is prohibited by law from operating with his
own DOT authority. In determining whether an owner/operator is engaged in an independently
established trade, occupation, profession, or business, the focus has to be on the market served
by the owner/operator. If the business served by the owner/operator is a manufacturer or shipper
of goods, then the owner/operator must have his own DOT authority to operate in that market.
That point was never raised or argued in the Giltner case. In serving the motor carrier market as
a trucker, the owner/operator must use the motor carrier’s DOT authority. That federal
requirement is no more an indication of control or lack of independence than the other types of
federal regulations discussed in Giltner where it was recognized that those federal requirements
do not affect whether one is an independent owner/operator. See Giltner, 145 Idaho at 419–20,
179 P.3d at 1075–76.
       This Court now recognizes that Giltner’s bright-line rule improperly focused on the
source of the owner/operator’s DOT authority as a single determinative factor, when in fact the
source of an owner/operator’s DOT authority has no effect on the owner/operator’s service to the
motor carrier market and neither the owner/operator nor the motor carrier has any control over
the federal regulations governing DOT authority. Giltner’s determination that owner/operators
“solely dependent” on a motor carrier’s “DOT authority to haul goods in interstate commerce”
cannot “as a matter of law . . . be engaged in an independently established trade, occupation,
profession or business” was clearly incorrect and Giltner’s holding on that point is overruled.
145 Idaho at 420, 179 P.3d at 1076. The source of an owner/operator’s DOT or other federal or
state authority to haul goods interstate for a motor carrier is not a relevant factor for the analysis
of the second prong in I.C. § 72-1316(4). No other part of the Giltner decision is overruled.
       In this case the Commission determined that Western had demonstrated that its
owner/operators were free from its control, thus meeting the first prong for the covered
employment exemption in I.C. § 72-1316(4). This finding is not challenged on appeal. For the
second prong, the Commission found that Western’s owner/operators used Western’s DOT
authority to haul goods. Neither party challenges this factual finding. The Commission then

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determined that Western failed to demonstrate that the owner/operators were engaged in an
independently established trade, occupation, profession, or business under the second prong—
despite that significant evidence suggested otherwise—because the Commission was bound by
Giltner. With Giltner now overruled in part, this Court remands this case to the Commission for
further proceedings consistent with this opinion. On remand, the Commission should determine
whether Western satisfied the second prong of the covered employment exemption test in I.C. §
72-1316(4) without considering DOT authority as a factor.
          The Department seeks an award of attorney fees pursuant to I.C. § 12-117. As the non-
prevailing party, the Department is not entitled to an award of attorney fees. Western seeks an
award of attorney fees and costs pursuant to Idaho Appellate Rule (I.A.R.) 41. Western has not
cited any statutory provision authorizing such award. I.A.R. 41 does not provide the Court with
the authority to award attorney fees. Gilman v. Davis, 138 Idaho 599, 603, 67 P.3d 78, 82 (2003).
I.A.R. 41 simply “specifies the procedure for requesting an award of attorney fees on appeal.” Id.
                                        V. CONCLUSION
          The decision of the Commission is vacated and this case is remanded for further
proceedings consistent with this opinion. We award Appellant costs, but not attorney fees, on
appeal.
          Chief Justice BURDICK, Justices EISMANN, J. JONES and HORTON, concur.




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