and submitted May 11, 2017
review from the Court of Appeals ED 2014UIT00047; CA A158021
Buehler, Assistant Attorney General, Salem, argued the cause
and fled the briefs for petitioner on review. Also on the
briefs were Ellen F. Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
S. Daniels, Stoel Rives LLP, Portland, argued the cause and
fled the brief for respondent on review.
Colgan, Corr Cronin Michelson Baumgardner Fogg & Moore,
LLP, Seattle, fled the brief for amicus curiae Oregon
Worthington Hurl, Betts, Patterson & Mines, Seattle, fled
the brief for amici curiae American Trucking Associations,
Inc., and Truck Renting and Leasing Association.
Balmer, Chief Justice, and Kistler, Walters, Landau,
Nakamoto, and Duncan, Justices, and Linder, Senior Justice
Pro Tempore. [**]
Or. 822] Case Summary:
state Employment Department Tax Section assessed Delta
Logistics, Inc., a forhire carrier, unemployment insurance
taxes on funds that Delta paid to individuals who owned,
operated, furnished and maintained trucks that they leased to
Delta for its goods-transportation business. Delta contested
the assessment of unemployment insurance taxes, asserting
that ORS 657.047(1)(b) exempted these particular truck owners
from unemployment benefits and, by extension, Delta from
unemployment insurance taxes on the funds that it paid to the
truck owners. A requirement of the exemption under ORS
657.047(1)(b) is that the truck owners "personally"
operate, furnish, and maintain the trucks that they lease to
businesses like Delta. The Employment Department maintained,
however, that because the truck owners that Delta was paying
had hired employees to assist them in operating, furnishing,
and maintaining the trucks, the truck owners were not
"personally" carrying on such activities. An
administrative law judge issued an order upholding the
assessment. The Court of Appeals reversed.
657.047(1)(b)'s exemption extends to truck owners who
employ individuals to help them operate, furnish, and
maintain the trucks.
decision of the Court of Appeals is affrmed, and the order of
the administrative law judge is reversed.
Or. 823] KISTLER, J.
657.047(1)(b) creates an exemption from the unemployment
benefit laws for truck owners that both lease their trucks to
for-hire carriers and "personally operat[e], furnis[h]
and maintai[n]" the leased trucks. On review, the
Employment Department argues that, to come within that
exemption, the owner must be the only person who operates the
truck. In the department's view, if the owner hires
another person to help him or her operate the truck, the
owner does not "personally operat[e]" the truck,
and the exemption does not apply. The Court of Appeals
disagreed, reasoning that ORS 657.047(2) makes clear that the
exemption includes owners who hire employees to help operate
their trucks. Delta Logistics, Inc. v. Employment Dept.
Tax Section, 279 Or.App. 498, 513-14, 379 P.3d 783
(2016). Having allowed the department's petition for
review, we affirm the Court of Appeals decision.
Logistics, Inc., is a "for-hire carrier" that is
licensed by the federal government to transport goods
interstate. Id. at 500. Delta does not own any
trucks. Id. at 502. Rather, it leases trucks from 40
owner-operators, who operate, furnish, and maintain the
trucks. Id. Some of those owner-operators
are the only persons who operate the leased trucks.
Id. Others hire employees to help them. Id.
The department assessed Delta unemployment insurance taxes on
the funds that Delta paid the owner-operators. The department
contended that the owner-operators did not come within the
exemption in ORS 657.047(1)(b) because the leases that the
owner-operators entered into with Delta were not
"leases" within the meaning of that subsection. An
administrative law judge (ALJ) from the Office of
Administrative Hearings agreed and issued a final order
upholding the assessment.
Or. 824] Delta petitioned the Court of Appeals for review of
the ALJ's order. In the Court of Appeals, the department
argued, as it had before the ALJ, that the exemption did not
apply because the owner-operators' leases were not leases
within the meaning of ORS 657.047(1)(b). The department
argued alternatively that the phrase "personally
operates" in ORS 657.047(1)(b) requires that the owner
be the only person who operates the leased truck. In the
department's view, if the owner hires another person to
help operate the truck, the exemption does not apply.
Court of Appeals was not persuaded by either of the
department's arguments. It concluded that the leases
between the owner-operators and Delta qualified as leases
within the meaning of ORS 657.047(1)(b). Delta
Logistics, 279 Or.App. at 511-12. It also rejected the
department's alternative argument. Relying on ORS
657.047(2), the court explained that, contrary to the
department's position, that subsection specifically
recognizes that another person can assist the owner in
operating the leased truck. Id. at 513-14. The
department petitioned for review but only on the latter
issue. It contended that the Court of Appeals had read the
word "personally" out of the statute and that,
properly interpreted, the exemption in ORS 657.047(1)(b)
applies only to owner-operators who are the sole persons who
operate their trucks. We allowed the department's
petition to consider that issue.
chapter 657 specifies the work for which employers must pay
unemployment insurance taxes. Although the definitions in
that chapter are somewhat circular, generally, an employer
must pay unemployment insurance taxes on wages paid to
employees who are engaged in employment. See Broadway Cab
LLC v. Employment Dept., 358 Or. 431, 433, 364 P.3d 338
(2015) (discussing statutorily defined terms). Often,
litigation under ORS chapter 657 turns on whether a worker is
an employee or an independent contractor, for whom no
unemployment taxes are owed. See id. at 442-47
(analyzing that issue). ORS chapter 657 also provides,
however, that unemployment insurance taxes are owed only on
persons engaged in "employment, " and ORS chapter
657 contains a series of exemptions that begin with [361 Or.
825] the phrase, "'employment' does not
include." Those exemptions describe categories of exempt
work, which range from being a caddy at a golf course in an
authorized training program to working on a fishing boat in
return for a share of the catch to officiating
nonprofessional sporting events. See ORS 657.043 to
ORS 657.094 (setting out various categories of work that do
not constitute "employment" for which unemployment
insurance taxes must be paid).
case concerns one exemption from employment. ORS 657.047
provides, in part:
"(1) As used in this chapter, 'employment' does
"(a) Transportation by motor vehicle of logs, poles and
piling by any person who both furnishes and maintains the
vehicle used in such transportation; or
"(b) Transportation performed by motor vehicle for a
for-hire carrier by any person that leases their equipment to
a for-hire carrier and that personally operates, furnishes
and maintains the equipment and provides service thereto.
"(2) For the purposes of this chapter, services
performed in the operation of a motor vehicle specified in
subsection (1) of this section shall be deemed to be
performed for the person furnishing and maintaining the motor
(1) identifies two types of transportation services that are
exempt from the unemployment benefit laws. One involves
transportation by motor vehicle of certain types of goods
(logs, poles, and piling) by certain persons (those who
"furnish and maintain" the vehicle). ORS
657.047(1)(a). The other involves transportation by motor
vehicle for for-hire carriers by a certain class of persons
(persons who lease their equipment to a for-hire carrier and
"personally operat[e], furnis[h], and maintai[n] the
equipment"). ORS 657.047(1)(b).
department does not dispute that a person who "furnishes
and maintains" motor vehicles to carry logs, poles, and
piling will come within the exemption in subsection (1)(a)
even though that person owns more than one vehicle and hires
other persons to help operate them. That [361 Or. 826] much
follows from subsection (2), which recognizes that, in
providing the transportation services described in subsection
(1), one person may operate a motor vehicle that another
person furnishes and maintains. The department argues,
however, that the exemption for transportation services in
subsection (1)(b) applies only when the person that owns the
leased motor vehicle is also the sole person that operates
it. That follows, the department argues, from the
legislature's use of the word "personally."
Delta responds that, when "personally" is viewed in
light of the other terms used in ORS 657.047 and the
legislative history of ORS 657.047(1)(b), it becomes clear
that the legislature did not intend "personally" to
require that the person that leases a motor vehicle to a
for-hire carrier be the only person that operates, furnishes,
and maintains it.
issue, as the parties frame it on review, turns on what the
word "personally" means in ORS 657.047(1)(b). In
analyzing that issue, we begin with the terms that the
legislature used and, when the legislature has not defined
those terms, their ordinary meaning as found in the
dictionary. See State v. Gaines, 346 Or. 160,
171-72, 206 P.3d 1042 (2009) (explaining that we look to the
text, context, and legislative history of a statute to
determine its meaning). We recognize, however, that
dictionaries "do not tell us what words mean, only what
words can mean, depending on their context and the
particular manner in which they are used." State v.
Cloutier, 351 Or. 68, 96, 261 P.3d 1234 (2011) (emphasis
most part, the parties agree on the appropriate definition of
"personally." "Personally" is an adverb
that means "in a personal manner, "
Webster's Third New Int'l Dictionary 1687
(unabridged ed 2002), and the most ...