Raboin v. North Dakota Workers Compensation Bureau

1997 ND 221, 571 N.W.2d 833, 1997 N.D. LEXIS 283, 1997 WL 739451

• Court: North Dakota Supreme Court
• Decided: December 2, 1997
• Docket: Civil 970105
• Status: Published

Opinions

NEUMANN, Justice.

[¶ 1] Jim Raboin appealed from a judgment affirming a Workers Compensation Bureau order holding him personally hable under N.D.C.C. § 65-04-26.1 for $16,824.91 in unpaid workers compensation premiums owed by American Classics Corporation (Classics), plus penalty and interest. We conclude the Bureau misapplied the law and improperly assessed personal liability against Raboin for Classics’ past due premium debt. We reverse.

[¶ 2] Classics was a North Dakota corporation engaged in the kit car brokering business in Fargo. Its officers and directors included Raboin, president; Joel Skjei, vice president; and Gary Burchill, seeretary/trea-surer. On July 10, 1990, the Bureau received an application for workers compensation insurance signed by Raboin. Based upon the application estimating wages of $10,200 for the year, the Bureau billed a prepaid premium of $35.70 for the June 28, 1990 through June 30, 1991 payroll period. Classics did not bring the account current until October 8, 1990, when it paid the Bureau $62.12 for the premium plus statutory penalties under N.D.C.C. § 65-04-23.

[¶ 3] On August 1, 1991, the Bureau received a payroll report from Classics, listing an actual gross payroll higher than previously estimated. The Bureau billed Classics an actual premium of $759.85 for the June 28, 1990 through June 30, 1991 payroll period. The actual premium was offset by the $35.70 paid previously, leaving a balance due of $724.15 for the June 28, 1990 through June 30, 1991 payroll period. Classics was also billed an estimated prepaid premium of $1,034.36 for the July 1, 1991 through June 30,1992 payroll period. Classics never made any payments.

[¶ 4] On April 21, 1992, the Bureau received a final payroll report from Classics, signed by Burchill as seeretary/treasurer, listing the payroll from July 1, 1991 through November 21, 1991, when Classics went out of business. Classics was ultimately placed in receivership at the request of the Attorney General’s office in May 1992. Based on the report, the Bureau billed an actual premium for that period of $12,731.39. Making adjustment for the previous prepaid premium, the Bureau computed a total balance owing of $13,726.73. Classic’s failure to pay resulted in an assessment of $233.94 per month in statutory penalties.

[¶5] Because Classics had become a defunct corporation, the Bureau attempted to collect the deficiency from corporate officers Raboin, Skjei and Burchill in their personal capacities under authority of N.D.C.C. § 65-04r-26.1. When the Bureau informally determined that Raboin was personally liable, he requested an administrative hearing.

[¶ 6] The Administrative Law Judge (ALJ) found Raboin, Skjei and Burchill “had control of or supervision over the filing of and responsibility for filing premium reports or making payment of premiums” as required to impose personal liability under N.D.C.C. § 65-04-26.1(1). However, because Burchill did not personally have the statutorily required equity interest in Classics to impose liability, he was dismissed from the proceeding. Raboin and Skjei did have the required equity interest, owning 25 percent and 24 percent of Classics, respectively.

[¶ 7] The ALJ found the total balance due from Classics as of the date of the hearing, including statutory penalties, to be $24,-279.03. Of this amount, $724.15 was the balance owing before July 1,1991, which was the effective date of the authorizing legislation, N.D.C.C. § 65-04-26.1. The Bureau did not object to the ALJ deducting this amount from the total owed by Classics, leaving a balance of $23,554.88. The ALJ found Ra-boin personally liable for $16,824.91, a proportionate fraction of the full amount corresponding to the 15-week period after July 1, 1991 until Raboin was removed as president of Classics on October 7, 1991. The ALJ found Skjei personally liable for $23,554.88, the full amount owing from Classics from July 1, 1991 until November 21, 1991, when the business ended. The Bureau adopted the recommended findings and conclusions of the ALJ. Only Raboin appealed the order to district court, which affirmed the Bureau’s decision.

[¶ 8] We review the Bureau’s decision, not the decision of the district court, and we affirm the Bureau’s decision unless its findings of fact are not supported by a preponderance of the evidence, its conclusions of law are not supported by its findings of fact, its decision is not supported by its conclusions of law, or its decision is not in accordance with the law. Lucier v. North Dakota Workers Comp. Bureau, 556 N.W.2d 56, 59 (N.D.1996); N.D.C.C. § 28-32-19. In evaluating the Bureau’s findings of fact, we do not make independent findings or substitute our judgment for that of the Bureau, but we determine only whether the Bureau reasonably reached its factual conclusions from the weight of the evidence on the entire record. Dean v. N.D. Workers Comp. Bureau, 1997 ND 165, ¶ 14, 567 N.W.2d 626.

[¶ 9] At the time the premium payments at issue were due, N.D.C.C. § 65-04-26.1(1), the only statute imposing personal liability on certain officers and shareholders, provided:

“Any officer, director, or any employee having twenty percent ownership of a corporation and any manager, governor, or any employee having twenty percent ownership of a limited liability company that is an employer under this title who has control of or supervision over the filing of and responsibility for filing premium reports or making payment of premiums under this title, and who fails to file the reports or to make payments as required, is personally liable for premiums or reimbursement, including interest, penalties, and costs in the event the corporation or limited liability company does not pay to the bureau those amounts for which the employer is liable.”

[¶ 10] The record supports the ALJ’s finding that, at all relevant times, Raboin had more than a 20 percent ownership interest in Classics and had control of or supervision over the filing of and responsibility for filing premium reports or paying premiums. Although Raboin contested the issue at the administrative hearing, he does not dispute this finding on appeal. Rather, Raboin contends he cannot be held liable under the statute because he was not a corporate officer at the time the corporation defaulted on the premiums. Specifically, Raboin asserts he is not liable because, although he was president of the corporation at the time the premium billing notices were received by Classics, no premium due notices had reached their due date while he was still a corporate officer.

[¶ 11] The September 24, 1991 “Premium Billing Statement” the Bureau sent to Classics listed the premium due date as October 31, 1991. It also listed the “Optional Quarterly Payment Schedule,” which called for payments of principal and interest on September 30 and November 30, 1991, and February 29 and May 31, 1992. The statement listed the premium balance for the period June 28,1990 to June 30,1991 as $724.15 and the prepaid premium for the period July 1, 1991 to June 30, 1992 as $1,034.36, totaling $1,758.51 as the amount due by October 31, 1991 to pay the premium in full. If Classics chose the optional quarterly payment schedule, a first quarterly payment of $982.74 was due by September 30, 1991. The statement also alerted Classics that:

“A penalty of $25 plus an additional monthly penalty of 2% of the unpaid premium will be assessed if any of the payment options listed below are in default.”

[¶ 12] A November 16, 1991 “Past Due Premium Statement” mailed to Classics also listed the premium due date as October 31, 1991 and requested payment of $1,818.68, explaining:

“Your premium was due on the premium due date shown above. 15 days have now elapsed, and your premium is now in default. Penalties have been added as provided by Section 65-04-23 of the North Dakota Century Code.

“Please pay your premium immediately to avoid legal action and the additional monthly penalty of 2% of the unpaid balance.”

[¶ 13] It is undisputed that Raboin was relieved of his duties as president of Classics on October 7, 1991 and no longer served as an officer, director, or employee of the corporation after that date. Raboin therefore argues he cannot be held personally liable because he was no longer affiliated with Classics when the premium payments were stated in the notices as becoming due on October 31,1991.

[¶ 14] The parties have not cited, and we have not found, any case law to assist us in analyzing corporate officer liability for past due premium payments in a workers compensation context.¹ In support of his argument, Raboin relies primarily on N.D.C.C. § 65-04-23, which provides in part, “[w]hen an employer defaults in the payment of any premium, any installment of the premium, any penalty or interest ..., the employer at the time of default is subject to a penalty-” Raboin asserts the language “employer at the time of default” is synonymous with the corporate officer who is personally liable under N.D.C.C. § 65-04-26.1(1) and has the requisite equity interest and control of the employer who fails to pay. Because there was no “default” on the payment due October 31, 1991, while Raboin served as president of Classics, he asserts he cannot be personally liable.

[¶ 15] The Bureau counters that N.D.C.C. § 65-04-23 is simply the general statute assessing penalties for a default in an employer’s payment of premiums. Here, Classics, not Raboin, was the employer at the time of default, and under the statute, premiums and penalties were properly assessed against the corporate entity. The Bureau contends N.D.C.C. § 65-04-26.1 is the pertinent statute here and addresses the liability of a corporate officer who has the requisite control or supervision “in the event the corporation ... does not pay to the bureau those amounts for which the employer is liable.” The Bureau asserts the statute therefore allows assessment of liability against the appropriate corporate officer if the corporation does not pay the amount for which the employer is liable, which is what the Bureau did in this case. Under the Bureau’s analysis, N.D.C.C. § 65-04-26.1 does not limit corporate officer liability to those who were present and active at the time the corporation technically “defaults” on premium payments, but allows assessment against an officer who was present and active during the period the premium was incurred.

[¶ 16] We interpret statutes in context, endeavoring to give meaningful effect to each statute of the same subject matter without rendering one or the other useless. See Interest of KG., 551 N.W.2d 554, 556 (N.D. 1996). When interpreting statutes, we follow the cardinal rule that our interpretation must be consistent with the expressed legislative intent. Id. The legislative purpose of the corporate officer liability statute is obvious. Because conducting business in the corporate form is often done primarily to shield officer shareholders from personal liability for business debts, see generally Jablonsky v. Klemm, 377 N.W.2d 560, 563 (N.D.1985), the statute’s imposition of personal liability for workers compensation premiums on corporate officers increases the likelihood that those premiums will be paid. See, e.g., 1995 Legislative Assembly, Written Testimony on House Bill No. 1329 before House Industry, Business & Labor Committee by Robert W. Morris, January 23,1995, at p. 7 (“Corporate Officer liability is a very effective tool for collections.... Frequently, corporations will find some way to pay their workers compensation bill when the corporate officers are informed that they will be held personally liable for the debt if not paid by the corporation.”). Yet, what is lacking in the statutory scheme and the legislative history behind it is any specificity on the procedure for assessment of corporate officer liability when, as here, the allegedly liable corporate officer is relieved of his corporate responsibilities while the corporation continues to do business.

[¶ 17] We look first in ascertaining legislative intent at the words used in the statute, giving the words their ordinary, plain language meaning. See Matter of Estate of Luken, 551 N.W.2d 794, 799 (N.D. 1996); N.D.C.C. § 1-02-02. The statute at issue here, N.D.C.C. § 65-04-26.1(1), specifically places personal liability on an “officer ... who fails to file the reports or to make payments as required, ...” There is no allegation Raboin failed to file reports, only that he failed to make payments “as required.” The word “require” is a word denoting compulsion, meaning to insist upon or demand. See Zuger v. Zuger, 1997 ND 97, ¶28, 563 N.W.2d 804; Heck v. Reed, 529 N.W.2d 155, 162 (N.D.1995); Kennedy v. Falde, 4 Dak. 319, 29 N.W. 667, 670 (1886). The plain meaning of the phrase “as required” does not comport with the Bureau’s broad interpretation as including the time period when premiums were incurred, even though the premium payments need not be made on the accrual date. A corporate officer is under no compulsion to make premium payments on behalf of the corporation on the accrual date.

[¶ 18] The general statutes applicable here merely call for annual premium payments from employers. Under N.D.C.C. § 65-04-04, each employer “shall pay into the fund annually the amount of premiums determined and fixed by the bureau....” N.D.C.C. § 65-04r-19.1 also speaks in terms of an “annual premium ... for the year ...” in addressing a premium discount for implementing a risk management program. Payments with interest on a semiannual or quarterly basis are authorized by N.D.C.C. § 65-04-20, but N.D.C.C. § 65-04-22 also authorizes the Bureau, by proper order and notice, to “require payment of a premium within any time less than one month which, in the judgment of the bureau, is reasonable and necessary to secure the payment of the premium by any employer whose employment within this state is likely to continue for less than one month, and in such case, default shall begin at the end of the time allowed by the bureau for the payment of the premium.” That statute also sets forth when entire premiums or installment payments will be considered in default. No order under N.D.C.C. § 65-04-22 was issued in this case. These statutes do not support a conclusion that corporate officers may be held personally liable if they merely have supervisory authority over premium payments when they accrue, rather than when they are required to be paid.

[¶ 19] The Bureau’s attempt to distinguish “the employer at the time of default” in N.D.C.C. § 65-04-23 from an officer who fails to pay premiums “as required” in N.D.C.C. § 65-04-26.1(1), and its argument it is irrelevant if the officer is no longer with the corporation when the default occurs, are also unpersuasive. The corporate officer liability statute, by placing responsibility only on an “officer ... who fails ... to make payments as required,” strongly suggests the potentially liable officer must in fact be an officer at the time the default occurs.

[¶ 20] Here, Raboin was an officer of Classics until October 7, 1991, when he was relieved of any further corporate responsibilities. Although the premium due notice mentioned a due date of September 30, 1991 if Classics chose the quarterly payment schedule, that was only an option available to the corporation which it was not required to choose. Because the default occurred when Classics failed to pay the total premium on October 31,1991, several weeks after Raboin was no longer an officer of the corporation, we conclude the Bureau misapplied the law in assessing personal liability against Raboin.

[¶ 21] We will not interpret statutes in a manner that produces an absurd or ludicrous result. See Hovland v. City of Grand Forks, 1997 ND 95, ¶ 11, 563 N.W.2d 384. The Bureau essentially argues it would be a ludicrous result to allow a corporate officer who is forced from office for leading the corporation to financial ruin to escape personal liability if the officer leaves before premiums become due. Most of the voluminous administrative record in this case is devoted to accusations of which corporate officer caused Classics’ failure. The ALJ made no findings on the issue, however. While this result may be possible, the legislature may well have reasoned this possibility did not outweigh the unfairness of holding a former corporate officer personally liable for the corporation’s failure to pay premiums when that officer was no longer in any position to enforce payment.

[¶ 22] The Bureau did promulgate a regulation, N.D.A.C. § 92-01-02-23, relating to installment payment of premiums, which provides in part:

“2. Premium subject to installments will be limited to the premium for the advance premium only. Prior period premium deficiencies must be paid in full within the original premium due date. Policy periods beginning on or after July 1, 1991, will be eligible for installment payments under this section. ...”

Although this regulation did not become effective until November 1, 1991, we do not believe it is out of harmony with the legislature’s intention behind the statutory scheme. See, e.g., Medical Properties v. North Dakota Board of Pharm., 80 N.W.2d 87, 90 (N.D. 1956). The regulation suggests that prior period premium deficiencies must be paid in full within the original premium due date and will be considered in default even though a new premium billing includes the deficiency and also assesses a prepaid premium for the upcoming year.

[¶ 23] Assuming the regulation is applicable in this ease, Raboin nevertheless would incur no liability under the circumstances. The record reflects the possibility that prior premium deficiencies were in default at a period of time when Raboin was president and had supervisory control over payment of premiums for Classics. However, that deficiency of $724.15 listed in the September 24, 1991 premium billing statement is for the June 28, 1990 to June 30, 1991 premium period. This premium period preceded the effective date of N.D.C.C. § 65-04-26.1, and the Bureau has not attempted to assess personal liability against Classics’ corporate officers for unpaid premiums incurred before the effective date of the statute.

[¶ 24] The Bureau’s decision is not in accordance with the law. The judgment affirming that decision is reversed.

[¶ 25] VANDE WALLE, C.J., and SANDSTROM, J., concur.

1 . Other states which require workers compensation insurance in an exclusive state fund, like North Dakota, do provide penalties for an employer's failure to timely submit premiums or other information. See, e.g., Nev.Rev.Stat.Ann. § 616B.224 (Michie 1995); Ohio Rev.Code Ann. § 4123.32 (Anderson 1997); Wash.Rev.Code § 51.16.150 (1996); W.Va.Code Ann. § 23-2-5a (Michie 1997); Wyo.Stat.Ann. § 27-14-203 (Mi-chie 1997). Some of these jurisdictions have also placed, like North Dakota, personal liability upon corporate officers for an employer’s failure to pay premiums by statute, see, e.g., Ohio Rev. Code Ann. § 4123.50 (Anderson 1997), and by judicial decision, see, e.g., State v. McCompton & Son Lumber Co., Inc., 192 W.Va. 10, 449 S.E.2d 71, 73 (1994). The Supreme Court of Appeals of West Virginia has construed its workers compensation laws to provide criminal responsibility for corporate officers who fail to pay workers compensation premiums or fail to file workers compensation reports. See State ex rel. Van Nguyen v. Berger, 199 W.Va. 71, 483 S.E.2d 71, 75 (1996). However, these jurisdictions provide us little guidance because the language of the statutes differs from North Dakota’s workers compensation laws, and in any event, the issue confronting us has not been addressed in those jurisdictions.