Alaska Supreme Court Opinions made Available by Touch N' Go Systems and Bright Solutions

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website.
  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. or subject indices. Alaska Contracting & Consulting, Inc. v. Alaska Dept. of Labor (9/15/00) sp-5313

Alaska Contracting & Consulting, Inc. v. Alaska Dept. of Labor (9/15/00) sp-5313

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


ALASKA CONTRACTING &          )
CONSULTING, INC.,             )    Supreme Court No. S-9022
                              )
             Appellant,       )    Superior Court No.
                              )    4FA-97-1786 CI
     v.                       )
                              )
ALASKA DEPARTMENT OF LABOR,   )    O P I N I O N
                              )
             Appellee.        )    [No. 5313 - September 15, 2000]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
                  Niesje A. Steinkruger, Judge.


          Appearances:  James E. McLain, The Law Offices
of William R. Satterberg, Jr., Fairbanks, for Appellant.  Susan L.
Daniels, Assistant Attorney General, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.  


          Before: Matthews, Chief Justice, Eastaugh,
          Fabe, Bryner, and Carpeneti, Justices.  


          EASTAUGH, Justice.


I.   INTRODUCTION
          In 1990 the Alaska Department of Labor determined that a
trucking company was not a "liable employer" required to make
contributions under the Alaska Employment Security Act.  In a 1994
ruling, an administrative hearing officer barred the department's
1993 attempt to assess the company for contributions for 1990.  Did
the 1990 determination or the 1994 ruling prevent the department
from prospectively determining the company's liability for calendar
periods after March 1993, when the department sent the company a
new notice of assessment?  We hold that (1) res judicata and
collateral estoppel did not preclude that prospective
determination; (2) AS 23.20.315 permitted a determination of the
company's liability for new calendar periods; and (3) the
department did not err in finding the company statutorily liable. 
We therefore affirm the superior court decision that affirmed the
administrative finding of liability.
II.  FACTS AND PROCEEDINGS
          The Alaska Employment Security Act [Fn. 1] creates an
unemployment compensation fund. [Fn. 2]  The act requires employers
to pay  "contributions" to the Department of Labor [Fn. 3] for each
calendar year in which the employers are subject to the act. [Fn.
4]  They must also withhold employee contributions from their
employees' wages, hold the contributions in trust, and pay them to
the department when due. [Fn. 5]  The department determines whether
an "employing unit is an employer and whether service performed for
it constitutes employment." [Fn. 6]  The department's Employment
Security Division oversees collection of contributions. [Fn. 7]  
          This appeal concerns the department's determination that
Alaska Contracting & Consulting, Inc. is an employer liable for
making contributions to the fund.  Alaska Contracting hauls dirt
and other road-building materials to construction sites, and
provides road-building equipment including dirt-moving trucks,
primarily as a subcontractor.  It sometimes completes its projects
by leasing its own equipment to individual drivers who then lease
the equipment back to Alaska Contracting; these "lease-drivers"
then operate the equipment and perform the trucking and hauling on
the projects.  This appeal relates only to these lease-back
operations involving the lease-drivers.
          In January 1990 the division sent Alaska Contracting a
"notice of non-liability" stating that the company was "not a
liable employer," that Alaska Contracting had "no employees," and
that the wages it paid "[were] not subject to coverage" under the
act.
          In March 1993 the division sent Alaska Contracting a
"notice of coverage" stating that Alaska Contracting was a "liable
employer" which was required to provide unemployment coverage for
its employees as of March 1, 1990.  The division then retroactively
assessed contributions for 1990, 1991, and 1992.  Alaska
Contracting appealed. 
          Sitting as the appeal tribunal, Hearing Officer Dan A.
Kassner heard the appeal and in June 1994 issued his decision.  He
invalidated the division's March 1993 retrospective coverage
determination for 1990, reasoning that because Alaska Contracting
had relied on the division's January 1990 non-liability
determination, quasi-estoppel prevented the division from
retroactively determining Alaska Contracting's status for that
year.  But he concluded that for the years after 1990, the division
could re-audit Alaska Contracting's status and make a new coverage
determination based on new or additional evidence.  Neither party
appealed the June 1994 decision.
          In August 1994 the division requested and examined Alaska
Contracting's available records for 1991, 1992, and 1993.  The
division then determined that certain services performed for Alaska
Contracting constituted "covered employment" under the act, and
that Alaska Contracting was therefore a "liable employer."  In May
1995 the division issued a notice of assessment to Alaska
Contracting for two calendar quarters in 1991 and one calendar
quarter in 1994.  Alaska Contracting appealed; it claimed that the
June 1994 decision completely barred the assessments.
          Sitting as the appeal tribunal, Hearing Officer Stan
Jenkins heard the appeal from the May 1995 notice of assessment. 
In his written decision of July 1996, he ruled that "[c]overage
determinations are subject to yearly review and determination."  He
concluded that Hearing Officer Kassner's June 1994 decision both
specifically restricted its application of quasi-estoppel to 1990
and permitted audits and coverage determinations for years after
1990.
          Hearing Officer Jenkins next concluded that truck
operators who leased trucks from Alaska Contracting to use on
Alaska Contracting's projects performed "services," and that Alaska
Contracting had failed to show that these drivers fell outside the
scope of covered services or employment.  But because Alaska
Contracting had not received notice until March 1993 that it could
be liable, he also decided that Alaska Contracting was liable only
for contributions after April 1, 1993.  He therefore modified the
May 1995 notice of assessment and remanded the assessment liability
to the division for recalculation.
          Alaska Contracting appealed the July 1996 decision to the
Commissioner of Labor, who affirmed.  Alaska Contracting then
appealed to the superior court, which also affirmed.
          Alaska Contracting appeals.
III. DISCUSSION 
     A.   Standard of Review
          When the superior court acts as an intermediate court of
appeal from an administrative determination, we review the agency's
underlying determination independently. [Fn. 8]  Different
standards of review apply to Alaska Contracting's three legal
arguments and we discuss them below where relevant.
     B.   Neither Res Judicata nor Collateral Estoppel Precludes
the Department from Determining that Alaska Contracting Is a Liable
Employer.

          Invoking the doctrines of res judicata and collateral
estoppel, Alaska Contracting first argues that the division's 1990
non-liability determination had a "preclusive effect on subsequent
administrative proceedings."  It also argues that collateral
estoppel barred the division from litigating the coverage issue in
1996, reasoning that the division could have litigated that issue
at the 1994 hearing. [Fn. 9]  Whether res judicata or collateral
estoppel applies is a question of law that we review de novo. [Fn.
10]
          After entry of a judgment on the merits of a controversy,
res judicata bars subsequent actions between the same parties on
the same claim, or on claims that the parties were required to
bring in the original action. [Fn. 11]  Res judicata, or claim
preclusion, implements "the generally recognized public policy that
there must be some end to litigation and that when one appears in
court to present his case, is fully heard, and the contested issue
is decided against him, he may not later renew the litigation in
another court." [Fn. 12]  Res judicata applies to adjudicative
determinations made by administrative agencies. [Fn. 13]  Res
judicata may also apply to administrative proceedings if, after a
case-specific review, a court finds that the administrative
decision resulted from a procedure "that seems an adequate
substitute for judicial procedure" [Fn. 14] so that according
preclusive effect to the administrative decision would be fair.
[Fn. 15]  
          Collateral estoppel, or issue preclusion, bars the
relitigation of an issue when
          (1) the party against whom the preclusion is
employed was a party to or in privity with a party to the first
action; (2) the issue precluded from relitigation is identical to
the issue decided in the first action; (3) the issue was resolved
by a final judgment on the merits; and (4) the determination of the
issue was essential to the final judgment.[ [Fn. 16]]

Issues must therefore actually be litigated before they can be
precluded by collateral estoppel.  This proposition dooms Alaska
Contracting's arguments.
          First, the record does not establish that the division's
1990 non-liability determination was a final judgment resulting
from an adjudicatory proceeding or from an adequate substitute
procedure.  Instead, it was the result of an executive decision by
a division employee. 
          Second, elements (2), (3), and (4) of the collateral
estoppel test are not satisfied.  The June 1994 decision only
adjudicated the validity of the March 1993 assessment for the 1990
year.  The June 1994 decision could not collaterally estop the
department from litigating the issue of coverage for periods not
addressed in the June 1994 decision.  That decision did not decide
that lease-drivers provided no services to Alaska Contracting.  It
simply ruled that quasi-estoppel barred the department from
redetermining coverage for 1990; indeed, it specifically allowed
the division to audit and determine Alaska Contracting's status for
years after 1990.  Moreover, it was not necessary for Hearing
Officer Kassner to resolve the coverage issue in 1994 when he ruled
that quasi-estoppel precluded the division from assessing Alaska
Contracting for the 1990 calendar year.  
          Alaska Contracting also asserts that AS 23.20.450 and AS
23.20.455 incorporate the doctrine of res judicata.  Section .450
provides that final determinations and decisions of the department
are conclusive upon employing units, the department, and the
claimant. [Fn. 17]  Section .455 provides that final decisions of
the department "are binding in all subsequent proceedings . . .
involving similar questions unless expressly or impliedly overruled
by a later decision of the department or of a court." [Fn. 18] 
Alaska Contracting's discussion of those statutes consists of one
sentence.  It does not explain how those statutes add to its
preclusionary analysis.  It also fails to cite or discuss AS
23.20.320, which provides that coverage determinations are
conclusive.  We therefore deem Alaska Contracting to have waived
any reliance on those statutes. [Fn. 19]  
          Alaska Contracting's preclusionary arguments therefore
fail.
     C.   Alaska Statute 23.20.315 Permitted the Division to
Determine that Alaska Contracting Is a Liable Employer for Periods
After April 1, 1993.

          We must next decide whether the division had statutory
authority to determine Alaska Contracting's contribution liability
for periods after 1990.  Alaska Contracting argues that the
division lacked authority under AS 23.20.315(b) to reconsider the
division's 1990 non-liability determination because the division
failed to present additional evidence showing that Alaska
Contracting had changed the way it conducts business.  The
department counters that AS 23.30.315(a) and (b) authorize it to
change an initial determination based on information concerning a
different calendar period, and that evidence from the different
period should be considered "additional."  This issue presents a
question of statutory interpretation which does not involve the
special expertise of the agency; we therefore apply our independent
judgment. [Fn. 20] 
          Alaska Contracting confuses "determinations" with
"redeterminations."  Alaska Statute 23.20.315(a) and (b) provide:
               (a)  On its own motion or on the
application of an employing unit, the department shall, on the
basis of facts found by it, determine whether the employing unit is
an employer and whether service performed for it constitutes
employment.
               (b)  Within one year or a longer time
which the department for good cause allows, after a determination
has been made under (a) of this section, the department may
reconsider its determination in the light of additional evidence
and make a redetermination.

These subsections of AS 23.20.315 authorize the department to act
in two ways.  Subsection (a) authorizes it to make coverage
determinations based on "facts found by it"; subsection (b)
authorizes the department, at its discretion, to reconsider those
determinations "in light of additional evidence."  The statute
therefore requires different showings depending on the nature of
the department's action.
          We interpret AS 23.20.315(a) to permit the department to
determine coverage for a new period, even if its new coverage
determination differs from a previous coverage determination.  The
act states that contributions accrue and are payable by an employer
"for each calendar year in which the employer is subject to [the
act]." [Fn. 21]  The statute therefore contemplates the possibility
of annual changes in an employing unit's coverage status.  Here, as
in other areas of tax law, each period subject to contribution
liability stands alone, to be determined and assessed separately.
[Fn. 22]
          To further the department's ability to assess employment
security contributions, AS 23.20.105 gives the department broad
authority to examine employment records "at any reasonable time and
as often as may be necessary." [Fn. 23]  By permitting review as
"often as necessary," the act implicitly recognizes that an
employer's coverage status may change, and that the department has
the ability to decide whether it has changed.  This reading is also
consistent with the statutory requirement that the act be
"liberally construed to accomplish its purposes to promote
employment security . . . and to provide through the accumulation
of reserves for the payment of compensation to individuals with
respect to their unemployment." [Fn. 24] 
          Finally, although we do not defer to the department's
statutory interpretation, we agree with the commissioner's
reasoning that
          nothing in AS 23.20.315 - 23.20.320 prevents
the ESD from making a new coverage determination in a new tax year
or other period. . . . The ESD may make coverage determinations on
a yearly basis, or even quarterly, if the circumstances warrant. 
The statute does not on its face require the ESD to give an
employer perpetual immunity from taxation . . . .
This interpretation comports with the plain language of the statute
and with other courts' readings of similar statutes. [Fn. 25]
          We next consider whether, as Alaska Contracting argues,
AS 23.20.315(b) permits the department to make a second coverage
determination only if it presents new or additional information. 
We also agree with the commissioner's reading of this subsection
that
          [Alaska Statute] 23.20.315(b) covers taxpayer
requests for redetermination based on new facts, not prospective
redeterminations at the Department's own motion.  The provision
allowing an extended redetermination period for ". . . a longer
time which the department for good cause allows . . ." clearly
shows the purpose of the provision, as does the procedure for
requesting a redetermination under AS 23.20.315(d).

We agree with the commissioner because the plain language of AS
23.20.315(b) does not apply to new coverage determinations for new
tax periods.  Instead, we read AS 23.20.315(b) to provide a method
of relief from a final determination. [Fn. 26]  After the
department determines coverage for a particular tax period, an
employer may raise new evidence, the department may review the new
evidence to decide whether it correctly determined coverage, and
the department may make a retrospective "redetermination" for that
tax period. [Fn. 27] 
          Our reading of AS 23.20.315(b) favors the department's
ability to revisit an "employing unit's" coverage status.  An
employing unit understandably would prefer a statutory
interpretation that enhances the finality of favorable past
coverage determinations.  But such an interpretation is not
required by the language of these subsections and would be contrary
to the act's stated purposes. [Fn. 28]  And it could
inappropriately limit the department's ability to review coverage
status prospectively.  Alaska Contracting's reading would also be
at odds with AS 23.20.105, which gives the department access to
employer records "at any reasonable time and as often as may be
necessary."
          The 1996 liability ruling decided Alaska Contracting's
coverage status and liability for new tax periods not covered by
the 1990 non-liability determination.  The 1996 ruling did not
purport to redetermine Alaska Contracting's coverage status for
1990.  Although the 1996 ruling of liability for periods after
March 1993 differed from the division's 1990 non-liability
determination, it was not a "redetermination" because it did not
pertain to the 1990 non-liability determination or to the 1990
assessment periods addressed in the 1994 decision.  No new evidence
was therefore required.
          Alaska Contracting next argues that we must conclude that
no new evidence supported Hearing Officer Jenkins's 1996 liability
ruling, because it is unknown what evidence the division considered
before it made its 1990 non-liability determination, and because
Alaska Contracting has not changed its business practices.
          For the reasons we noted above, no new evidence was
required for the 1996 prospective ruling addressing periods after
April 1, 1993.  This is so even though the 1996 ruling decided
Alaska Contracting's liability by applying the same statutory
criteria that applied in 1990:  whether Alaska Contracting was an
employer, and whether service performed for it by the lease-drivers
constituted employment under AS 23.20.315(a) and AS
23.20.525(a)(10).  The evidentiary basis required for liability is
therefore the same; the coverage determination must be supported by
"facts found by [the department]." [Fn. 29]  Nothing in AS
23.20.315(a) required those facts to be "new" or "additional" to
those considered in 1990.  We discuss the sufficiency of the
evidence in Part III.D.
          Alaska Contracting also argues that it relied on the
division's 1990 non-liability determination and consequently
continued to conduct its business in the same way it always had. 
It argues that the department therefore abused its discretion when
it made a new coverage determination absent new evidence.
          We assume for purposes of discussion that Alaska
Contracting relied on the division's 1990 non-liability
determination.  But its reliance interest was fully protected. 
First, Hearing Officer Kassner quasi-estopped the division from
retrospectively revisiting the coverage issue for the 1990 calendar
year. [Fn. 30] Second, in 1996 Hearing Officer Jenkins prohibited
the division from assessing liability for any calendar period
before the company received the March 1993 assessment notice, but
permitted the division to prospectively determine coverage for
periods after March 1993.  Neither party appealed that ruling.  In
any event, after it received the assessment notice in 1993, it was
unreasonable for Alaska Contracting to continue to rely on the 1990
non-liability determination.
          We hold that AS 23.20.315(a) permitted the department to
prospectively determine Alaska Contracting's contribution liability
for new coverage periods, and that subsection .315(a) did not
require new or additional evidence for the new determination.
     D.   The Department Did Not Err in Finding that Alaska
Contracting Is a Liable Employer.

          We next consider whether the evidence supported the
department's finding that Alaska Contracting was a liable employer.
For an employing unit to be liable for contributions, the
department must determine that it is an "employer" and that
"service performed for it constitutes employment." [Fn. 31]  The
act defines "employment" as "service performed by an individual
whether or not the common-law relationship of master and servant
exists." [Fn. 32]  "Employment" does not include service performed
by an individual if all three parts of the following statutory
independent-contractor test are met: (a) the individual's actions
are free from direction and control; (b) the service is performed
outside the usual course of the firm's business; and (c) the
individual is customarily engaged in a similar independent trade or
business of the same nature as that involved in the service
performed. [Fn. 33]  This three-part test is known as the "ABC
test." [Fn. 34] 
          Alaska Contracting maintains that the evidence shows that
the lease-back of equipment is not a "service" under the act. 
Further, it argues that even if the lease-drivers provided a
service, the evidence did not support the department's decision
that Alaska Contracting was a liable employer.
          The department argues that the drivers who drove trucks
or hauled materials for Alaska Contracting's projects performed a 
service.  It further argues that Alaska Contracting did not
establish that its drivers were not employees, and that therefore
Alaska Contracting is not exempt under the three-part "ABC test." 
          1.   "Service"
          The issue of whether the lease-drivers provided a service
presents a mixed question of law and fact. [Fn. 35]  The definition
of "service" presents an issue of statutory interpretation not
involving an agency's special expertise; we therefore apply our
independent judgment. [Fn. 36]  The act does not define "service"
and  therefore "[o]ur duty is to adopt the rule of law that is most
persuasive in light of precedent, reason, and policy." [Fn. 37]  We
review an administrative agency's factual findings to determine
whether they are supported by substantial evidence. [Fn. 38]   
          Hearing Officer Jenkins applied the following
departmental working definition of "service": "[a] relationship
. . . where an individual is bound, however strictly and for
whatever length of time, to accomplish certain work and labor
objectives for another and to receive in return some sort of
recompense."  Washington courts have defined "personal service" as
work clearly performed for a company, or for its benefit. [Fn. 39] 
Another definition for "service" is "an intangible commodity in the
form of human effort, such as labor, skill or advice." [Fn. 40] 
These definitions have common elements of work, labor, or effort
expended for another's benefit.  We therefore hold that Hearing
Officer Jenkins applied a proper test for "service."
          Hearing Officer Jenkins then concluded that drivers
provided "service" to Alaska Contracting when those drivers
operated trucks necessary for Alaska Contracting to satisfy its own
obligations.  Substantial evidence supports his conclusion.  
          Richard Van Hatten, president of Alaska Contracting,
testified that Alaska Contracting paid each driver who worked on
Alaska Contracting's projects a per-ton or hourly rate for the
truck's earnings, and that the driver paid two-thirds of that
amount back to Alaska Contracting to lease the truck.  But Alaska
Contracting paid for more than the mere lease of the truck.  When
using lease-drivers on its own projects, it also paid for the
driver's work as part of the "truck's" earnings.  Van Hatten
himself characterized the lease arrangement as a "truck/driver
combination."  Because Alaska Contracting's road-building contracts
required the work of truck drivers, Alaska Contracting clearly
benefitted from the lease-drivers' "services." [Fn. 41]
          Van Hatten characterized Alaska Contracting as a truck
"broker" that brokered owners or lessees of equipment with those
needing their services.  But a broker is an agent who acts as an
intermediary between prospective buyers and sellers. [Fn. 42]  Two
elements must be met to find that one is acting as a broker:  the
person must act for compensation, and the person must act on behalf
of someone else. [Fn. 43]  When Alaska Contracting leases a truck
to a driver to enable that driver to work on Alaska Contracting's
own projects, it acts for itself, not for another.  Alaska
Contracting, in those situations, therefore acts not as a "broker,"
but as a contractor for services.  
          Although we conclude that Alaska Contracting's lease-
drivers provided "services," this does not end our inquiry.  If
Alaska Contracting acts as an "employer" with respect to the lease-
drivers, it is covered under the act and is liable for
contributions.  But it is not covered and is not liable if its
lease-drivers are independent contractors under the "ABC test"
contained in AS 23.20.525(a)(10). 
          2.   The "ABC test"
           For Alaska Contracting to satisfy the "ABC test," it
must show "to the satisfaction of the department" that all three
prongs of the test are met. [Fn. 44]  The department is vested with
broad discretion in deciding whether an employment relationship
exists, and we will reverse only if the department has abused this
discretion. [Fn. 45]
          Hearing Officer Jenkins concluded that Alaska Contracting
failed to satisfy any of the three elements with respect to the
lease-drivers.  Although it is debatable whether substantial
evidence supports his finding regarding part (A) of the test --
independent control of the lease-drivers, [Fn. 46] we need not rule
on that question because substantial evidence supports the hearing
officer's conclusions that Alaska Contracting did not meet either
of the other two essential parts of the test.
          Part (B) required Alaska Contracting to show that the
lease-drivers performed service "outside the usual course of
business" or "outside of all the places of business" of Alaska
Contracting. [Fn. 47]   But Van Hatten's affidavit established that
hauling dirt is within the usual course of business for Alaska
Contracting when it acts as a general contractor or subcontractor,
and that Alaska Contracting hauls dirt and heavy equipment to
places necessary to satisfy its contractual obligations.  Hearing
Officer Jenkins therefore did not abuse his discretion by
concluding that Alaska Contracting did not satisfy part (B) of the
test.
          Part (C) required Alaska Contracting to show that each
lease-driver "was customarily engaged in an independently
established trade, occupation, profession, or business of the same
nature as that involved in the service performed." [Fn. 48]  Van
Hatten asserted in his affidavit that the drivers leasing equipment
were required to provide their own insurance and to maintain the
equipment, but he produced no evidence that drivers actually
provided their own insurance, and he later testified that the
drivers actually insured through Alaska Contracting because it was
cheaper.  Hearing Officer Jenkins permissibly found from this
evidence that Alaska Contracting, not the lease-driver, "actually
provides insurance on those trucks."  Van Hatten also testified
that the cost of insurance provided by the company was incorporated
in the lease payments, but no evidence supported that assertion or
established how the lease payments were calculated. 
          Alaska Contracting did produce some records to support
its assertion that the lease-drivers were independent contractors,
such as various drivers' business licenses and business license
applications.  But business licenses do not conclusively determine
independent-contractor status. [Fn. 49]  Alaska Contracting also
produced some drivers' applications for federal taxpayer
identification numbers and some federal tax forms showing that
Alaska Contracting had paid the drivers "nonemployee compensation." 
But its evidence also shows that the lease-drivers often applied
for, or obtained, their business licenses and identification
numbers only after, or when, they signed their agreements with
Alaska Contracting.  Hearing Officer Jenkins therefore did not
abuse his discretion when he rejected Alaska Contracting's evidence
as insufficient to establish that the drivers were customarily
involved in similar independent businesses. [Fn. 50]
          Because the record supports Hearing Officer Jenkins's
conclusions regarding parts (B) and (C) of the "ABC test," we hold
that it was not an abuse of discretion to hold that Alaska
Contracting was not exempt from contribution liability and that it
was therefore a liable employer.
IV.  CONCLUSION
          Neither res judicata nor collateral estoppel barred the
department from deciding Alaska Contracting's contribution
liability for the tax periods at issue here because the coverage
issue had not been previously litigated on the merits.  The
department therefore had statutory authority under AS 23.20.315(a)
to determine coverage prospectively for periods after Alaska
Contracting received notice that it could be liable notwithstanding
the 1990 determination.  Substantial evidence supports the
department's finding that the lease-drivers provided "service" to
Alaska Contracting.  Substantial evidence also supports the hearing
officer's 1996 conclusion that Alaska Contracting failed to provide
sufficient evidence to satisfy the "ABC test."  We therefore AFFIRM
the superior court's appellate decision affirming the department's
liability determination.  


                            FOOTNOTES


Footnote 1:

     AS 23.20.005-.535.


Footnote 2:

     See AS 23.30.130(a).


Footnote 3:

     Although the agency is now known as the Department of Labor
and Workforce Development, ch. 58, sec. 90, SLA 1999, we use the
name
applicable when the relevant administrative proceedings took place.


Footnote 4:

     AS 23.20.165(a).


Footnote 5:

     See AS 23.20.165(a)-(c).


Footnote 6:

     AS 23.20.315(a).


Footnote 7:

     See AS 23.20.205(a); 8 Alaska Administrative Code (AAC)
85.030; see generally 8 AAC 85.010-.510. 


Footnote 8:

     See Smith v. Sampson, 816 P.2d 902, 904 (Alaska 1991)
(independently reviewing Department of Labor determination to deny
unemployment benefits).


Footnote 9:

     Although Alaska Contracting argues that res judicata bars the
subsequent litigation of the coverage issue, our discussion focuses
on collateral estoppel because the company is actually seeking the
relief of issue preclusion. 


Footnote 10:

     See Renwick v. State, Bd. of Marine Pilots, 971 P.2d 631, 633
(Alaska 1999).


Footnote 11:

     See id. at 633.


Footnote 12:

     Id. (quoting DeNardo v. State, 740 P.2d 453, 455 (Alaska
1987); see also Drickersen v. Drickersen, 546 P.2d 162, 169 (Alaska
1976)).


Footnote 13:

     See Jeffries v. Glacier State Tel. Co., 604 P.2d 4, 8 (Alaska
1979).


Footnote 14:

     State, Child Support Enforcement Div. v. Bromley, 987 P.2d
183, 192 (Alaska 1999) (quoting Holmberg v. State, Div. of Risk
Management, 796 P.2d 823, 825 (Alaska 1990)).


Footnote 15:

     See id. at 192.


Footnote 16:

     Renwick, 971 P.2d at 634 (quoting Jackinsky v. Jackinsky, 894
P.2d 650, 654 (Alaska 1995)).  


Footnote 17:

     See AS 23.20.450.


Footnote 18:

     AS 23.20.455.


Footnote 19:

     See State v. O'Neill Investigations, Inc., 609 P.2d 520, 528
(Alaska 1980) (concluding that the "[f]ailure to argue a point
constitutes an abandonment of it") (citations omitted). 



Footnote 20:

     See State v. Alaska State Employees Ass'n/AFSCME Local 52, 923
P.2d 18, 22 (Alaska 1996).  


Footnote 21:

     AS 23.20.165.


Footnote 22:

     See, e.g., Glass Wholesalers, Inc. v. State Bd. of Tax
Comm'rs, 568 N.E.2d 1116, 1124 (Ind. Tax 1991) (declining to give
previous exemption from property tax assessment collateral estoppel
effect to new tax year because each tax year "stands alone")
(citing Foursquare Tabernacle Church of God In Christ v. State Bd.
of Tax Comm'rs, 550 N.E.2d 850 (Ind. Tax 1990); Town of Morristown
v. Womans Club of Morristown, 10 N.J. Tax 309, 314 (1989), rev'd on
other grounds, 577 A.2d 1309 (N.J. Super. App. Div. 1990), aff'd,
592 A.2d 216 (N.J. 1991)).


Footnote 23:

     AS 23.20.105 provides: 

          Employing units to keep records and reports.
An employing unit shall keep work records containing information
which the department prescribes.  The records shall be open to
inspection and may be copied by the department at any reasonable
time and as often as may be necessary.  The department may require
an employing unit to submit sworn or unsworn reports, with respect
to persons employed by it, which are considered necessary for the
administration of this chapter.


Footnote 24:

     AS 23.20.005(a) provides in full: 

          This chapter shall be liberally construed to
accomplish its purposes to promote employment security by
increasing opportunities for placement through the maintenance of
a system of public employment offices and to provide through the
accumulation of reserves for the payment of compensation to
individuals with respect to their unemployment.


Footnote 25:

     See supra, note 22.


Footnote 26:

     8 AAC 85.450(a) provides that a coverage determination made
pursuant to AS 23.20.315 is final, unless an employer files a
written protest, appeal, or request for determination within thirty
days after the determination is delivered to the employer or mailed
to the employer's address of record. 


Footnote 27:

     See Sun Valley Express Moving & Storage, Inc. v. Arizona Dep't
of Econ. Sec., 680 P.2d 841, 845 (Ariz. App. 1984) (interpreting
similar Arizona statute as setting forth procedural method by which
employer may question propriety of liability determination; statute
provided department authority to reconsider final liability
determination).


Footnote 28:

     See AS 23.20.005(a).


Footnote 29:

     See AS 23.20.315(a).


Footnote 30:

     The elements of quasi-estoppel are: 
     
          whether the party asserting the inconsistent
position has gained an advantage or produced some disadvantage
through the first position; the magnitude of the inconsistency;
whether changed circumstances tend to justify the inconsistency;
whether the inconsistency was relied on by the party claiming
estoppel to his detriment; and whether the first assertion was made
with full knowledge of the facts.

Jamison v. Consolidated Util., Inc., 576 P.2d 97, 102-03 (Alaska 
1978).


Footnote 31:

     AS 23.20.315(a).


Footnote 32:

     AS 23.20.525(a)(10) defines "employment" as:

          service performed by an individual whether or
not the common-law relationship of master and servant exists,
unless and until it is shown to the satisfaction of the department
that:
               (A)  the individual has been and will
continue to be free from control and direction in connection with
the performance of the service, both under the individual's
contract for the performance of service and in fact;
               (B)  the service is performed either
outside the usual course of business for which the service is
performed or is performed outside of all the places of business of
the enterprise for which the service is performed; and 
               (C)  the individual is customarily
engaged in an independently established trade, occupation,
profession, or business of the same nature as that involved in the
service performed.


Footnote 33:

     AS 23.30.525(a)(10).          


Footnote 34:

     See Tachick Freight Lines, Inc. v. State, Dep't of Labor, 773
P.2d 451, 453 (Alaska 1989).


Footnote 35:

     See Penick v. Employment Sec. Dep't, 917 P.2d 136, 142 (Wash.
App. 1996) (independently reviewing legal question of whether
contract drivers provided "personal service" to trucking company).


Footnote 36:

     See Employees Ass'n/AFSCME Local 52, 923 P.2d at 22.


Footnote 37:

     Guin v. Ha, 591 P.2d 1281, 1291 (Alaska 1979). 


Footnote 38:

     See Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233
(Alaska 1992).  Substantial evidence is "such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion."  Id. (quoting Keiner v. City of Anchorage, 378 P.2d
406, 411 (Alaska 1963)).  We determine only whether such evidence
exists and do not choose between competing inferences or evaluate
the strength of the evidence.  See id.


Footnote 39:

     See Penick, 917 P.2d at 142 ("To fit within the definition of
personal services, the work of the contract drivers must clearly
have been performed for [the trucking company], or for its
benefit.").


Footnote 40:

     Black's Law Dictionary 1372 (7th ed. 1999).


Footnote 41:

     See Penick, 917 P.2d at 142 ("As the transportation of goods
necessarily requires the services of truck drivers, it is clear
that [the trucking company] directly used and benefited from the
drivers' services.").


Footnote 42:

     See Black's Law Dictionary 187.


Footnote 43:

     See 12 Am. Jur. 2d Brokers sec. 1, at 632-34 (1997).


Footnote 44:

     AS 23.20.525(a)(10).


Footnote 45:

     See Tachick Freight Lines, 773 P.2d at 453 ("[I]t is evident
from the statutory requirement of a showing 'to the satisfaction of
the department' that the Department of Labor is vested with broad
discretion in deciding whether an 'employment' relationship exists. 
We can only reverse the commissioner's decision if we find that he
abused this discretion.") (quoting Clayton v. State, 598 P.2d 84,
86 (Alaska 1979)).  This standard differs from our usual review of
an agency's factual findings for substantial evidence.  See Handley, 
838 P.2d at 1233.  Cf. Penick, 917 P.2d at 141 (reviewing
Washington Employment Security Department Commissioner's factual
findings regarding employment determination for substantial
evidence, but affording "great deference."). 


Footnote 46:

     Van Hatten testified that he did not supervise or direct the
drivers, but he also testified that he retained the power to
terminate the drivers for cause, although he had never done so. 


Footnote 47:

     AS 23.20.525(a)(10)(B).


Footnote 48:

     AS 23.20.525(a)(10)(C).


Footnote 49:

     See Tachick Freight Lines, 773 P.2d at 453.


Footnote 50:

     See AS 23.20.525(a)(10)(C).