10. Scott Knapp, d/b/a SK Exotics and Rodentry of South Milwaukee, Wisconsin claims $400.00 for the value of 40 rabbits, which allegedly had to be destroyed due to a quarantine issued by the Department of Agriculture, Trade & Consumer Protection. The claimant raises and sells a variety of small animals, including rabbits and prairie dogs. On June 6, 2003, the DATCP quarantined all mammals on the claimant's property due to a Monkeypox outbreak. The claimant states that, although he was hospitalized and quarantined with symptoms of Monkeypox, his wife and uncle were not, and that they continued to care for the animals. The claimant states that the USDA recommends a quarantine remain in place for 30 days after the last contact with an infected person or animal. The claimant alleges that the rabbits were housed separately, never brought into the house, and never came into contact with any of the animals in the house. The claimant was hospitalized on May 30, 2004, which the claimant states would have been the last contact the rabbits had with an infected person. Based on the USDA guidelines, the claimant believes that the quarantine should have been lifted at the end of June, or at the very latest, mid-July, 30 days after the claimant was himself released from quarantine. The DATCP did not lift the quarantine until September 2, 2003. The claimant alleges that he contacted the state regarding the end date of the quarantine, however, release of the quarantine was denied. The claimant states that he was forced to destroy 40 rabbits because he was not equipped to house them long term and that, if it had not been for the quarantine, they would have been sold within 2 weeks of being acquired. The claimant believes that the quarantine should have been released by July 2003 and that the DATCP's refusal to do so caused his damages.
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The DATCP recommends denial of this claim. The DATCP states that it quarantined all mammals on the claimant's premises on June 6, 2003, due to an exotic disease, which was subsequently determined to be Monkeypox. The DATCP states that all mammals on the premises were considered exposed because both the claimant and his wife cared for the animals and both had symptoms of Monkeypox. The DATCP states that there were concerns that the disease could be spread both from animals to humans and from humans to animals. The DATCP emphasizes that there was no information immediately available on the incubation period of Monkeypox in species other than prairie dogs, so the quarantine was originally indefinite. The USDA and CDC recommended that quarantines remain in place for 30 days after the last symptomatic animals were removed and isolated from the premises. The DATCP states that, based on inspections by the department's veterinarian, information from the claimant as to when his symptoms subsided, and isolation of all prairie dogs for 30 days, the quarantine was released on September 2, 2003. Finally, the DATCP states that the decision to destroy the 40 rabbits was a business decision made by the claimant. The DATCP did not order the animals destroyed and should not be held responsible for any damages related to their destruction.
The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employees and this claim is neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
11. Tommy Gubbin of Madison, Wisconsin claims $1,000.00 for reimbursement of a vehicle insurance deductible. The claimant is employed as a Probation and Parole Agent with the Department of Corrections. The claimant works in an office where there is one state vehicle for four agents. The claimant states that on November 11, 2003, he was scheduled to conduct a home visit. The state vehicle assigned to the office was in use by another agent. The claimant states that other available state vehicles were located in the central office, 8 miles away. Because this was further away than the home the claimant was visiting, he used his personal vehicle to conduct the home visit. The claimant states that use of his personal vehicle is part of his job description and a regular part of his job. As the claimant was travelling northbound on Allied Drive a southbound vehicle made an abrupt left turn in front of him and the claimant was unable to stop. The other drive was cited for failure to yield and driving without a valid license. The van the other driver was operating belonged to another individual and was not insured. The claimant states that the accident occurred during the regular course of his duties and he requests reimbursement of his $1,000 deductible.
The DOC does not object to payment of this claim. The DOC states that agents are permitted to use their personal vehicles for state business when a state vehicle is not available. They do not have to obtain a "nonavailability" slip unless the trip mileage is 50 miles or more. The department agrees that the accident occurred while the claimant was engaged in state business and appropriately using his personal vehicle and that the claimant was not at fault. Based on the circumstances, DOC agrees that it should be responsible for payment of the claimant's insurance deductible.
The Board concludes the claim should be paid in the amount of $1,000.00 based on equitable principles. The Board further concludes, under authority of s.
16.007 (6m), Stats., payment should be made from the Department of Corrections appropriation s.
20.410 (1)(b), Stats.
12. The Village of Sturtevant
, Wisconsin claims $158,800.00 plus interest for payment of a sewer connection fee related to the construction of a Department of Corrections 300 bed Regional Probation and Parole Holding Facility in the Village of Sturtevant. The village alleges that, in accordance with Village Code section 13.17(2), the state is required to pay the village a sewer connection fee of $400 per fixture, for a total fee of $158,800. The state has refused to pay the charge, citing s. 13.48(13), Stats. The village disagrees and believes that the payment must be made pursuant to s. 66.0821(4), Stats. It is the village's position that the sewer connection charge is neither a permit fee nor a charge relating to construction of a building, but rather is a service charge authorized under s. 66.0821(4), Stats. The village states that under this section there is no exemption for state facilities relating to payment of sewer service charges. The village also points to a November 2, 2002, Legislative Council memo which cites s. 70.119(1), Stats. That section provides that the state "…shall make reasonable payments at established rates for water, sewer and electrical services and all other services directly provided by a municipality to state facilities…" The village believes that, based upon these two statutes, the state is required to pay the sewer connection charge.
The Department of Administration and Department of Corrections request denial of this claim. They maintain that the state is exempt from the sewer connection charges by virtue of s.
13.48(13)(a), Stats. The Department of Justice and Dane County Circuit Court both have found that this statute unambiguously exempts the state from local laws, permits and fees relating to construction. The village argues that the state must pay the connection charges under s.
66.0821(4), Stats. However, it is the state's position that, in order to be governed by local laws and ordinances, the state must clearly and unambiguously indicate that it consents to a waiver of sovereign immunity. The Attorney General has opined that "a statute of general application, no matter how inclusive its terms, will not be construed to apply to the government or its agencies if such construction would impair their rights or interests, unless the statute includes them expressly or by necessary implication." The state points out that the courts have consistently ruled in accord with this tenet. The state's position is that s.
66.0821(4) is of general applicability and lacks any express reference to the state or its agencies. The state points to s.
13.48(13), Stats., which specifically protects the state from local construction laws. The village also relies on s.
70.119(1), Stats., and argues that the connection charge is not related to the construction of the facility, thus negating s.
13.48(13), Stats. The DOA and DOC agree that the state will make regular payments for municipal services after construction is completed, as is the usual case. Section
70.119(1), Stats., requires the state to make reasonable payments "at established rates" for various services provided by a municipality. The rate is to be based on usage but applicable to all users. The state argues that the connection charge is clearly not a "rate" but rather a one-time fee that is not required of all users, only new customers. Further more, the state points to the fact that the ordinance ties the issuance of a permit to allow connection with the payment of the fee. Without connection, construction of the building cannot be finished, so the charge is therefore obviously a one-time permit fee, imposed during construction, not a rate applicable to all users as required under s.
70.119(1), Stats. The state relies on the long-standing protection of sovereign immunity. Without this protection, hundreds of state building projects each year would be subject to every king of permit fees municipalities could impose, which would drive up costs for state taxpayers. Finally, the DOA states that permit fees are never included in a building project's budget and state taxpayers would be harmed if the state was required to forfeit monies already allocated for construction costs to one-time, unplanned permit fees. For these reasons, the state requests denial of this claim.
The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employees and this claim is neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles. [Member Rothschild not participating.]
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13. Teresa Oettinger
of Green Bay, Wisconsin claims $1,025.00 for the cost of repairing siding allegedly damaged by a foster child in the care of the claimant's next door neighbor. The claimant states that on October 6, 2003, she observed the child throwing sticks and rocks at her neighbor's house, where he resides. The claimant states that she opened her window and yelled at the child to stop, at which time he threw several stones at her, which struck the side of her home and damaged the aluminum siding. The claimant states that, according to the police report, the child's foster mother was home at the time he was throwing the stones but was afraid to go outside to confront him. The claimant does not believe that the foster mother provided appropriate supervisor of the child because she failed to even attempt intervention when the foster child was misbehaving. The claimant points to the fact that the foster mother does receive compensation for her role as foster parent and the claimant believes that along with that compensation comes some responsibility for the child's behavior. The claimant understands that laws are made to protect foster parents for the good of the community, however, she does not believe that those laws should absolve the foster parent of any and all responsibility for the child that has been entrusted to her care. The foster mother's homeowner's insurance would not cover the damage because it resulted from an intentional act. The claimant receives a "claim free" discount on her insurance premiums, which would increase if she filed a claim with her own homeowner's insurance. She also has a $250 deductible. The claimant does. believe it is fair for her to bear the burden of these costs because the foster mother sat in her home and did nothing but watch while the child in her care damaged the claimant's home.
The Department of Health and Family Services recommends denial of this claim. The DHFS states that the foster parent insurance program described in s.
48.627, Stats., only provides for payment of claims to the extent that the damages are not covered by any other insurance and for which the foster parent becomes legally liable. The claimant did not pursue any court action against the foster parent to determine whether or not she was legally liable and the claimant does have insurance to cover the damages. DHFS states that there does not appear to be any basis to assign liability to the foster parent or foster care agency. State and county agencies and foster parents provide care to foster children who may have serious behavioral problems. DHFS believes that it would be contrary to public policy to require foster parents and agencies to pay for the acts of troubled children unless there is a finding of legal liability on the part of the foster parent or agency. DHFS further believes that the government is not and should not be the ultimate payer for all crimes or wrongs and that property owners are responsible for maintaining insurance to protect themselves against these types of damages.
The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employees and this claim is neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
14. David Ress of Wausau, Wisconsin claims $506.00 for property damage caused by flooding in a University of Wisconsin dorm. The claimant lived in Sullivan residence hall. He states that on November 7, 2003, a leaky and sagging bathroom sink broke away from the wall, ripped open a pipe and caused flooding in the claimant's room, which is located directly across the hall from the bathroom. The claimant states that he was told that the shutoff valve for the cold water pipe was rusted open and therefore could not be turned off by hand, which caused the flooding to continue for some time. The claimant and his roommate were not home at the time and were therefore unable to clear out the room. The claimant states that some of his friends who lived down the hall asked if they could go into the room to help protect his property from damage but that they were denied entrance to his room. The claimant was told that the flooding began between 9 and 10 PM. He returned to his room around 1 AM and the flooding had stopped by then, however, university maintenance did not arrive until 1:30 AM to begin cleaning water out of the room. The claimant states that a maintenance employee told him they pumped 20-30 gallons of water out of his room. The claimant requests reimbursement for his property, all of which was lying on the floor of his room and therefore spent 3-4 hours immersed in water. The claimed damaged property includes a Playstation 2 console, controller, memory card and video game, and two textbooks. Two items originally reported to police as damaged (a DVD movie and a video game) were able to be cleaned and are now usable, therefore the claimant is not requesting any reimbursement for these items.
The UW recommends payment of this claim on equitable grounds. The university agrees with the facts of the incident as stated by the claimant. Although it is the university's position that it was not negligent, it does believe that equitable grounds warrant payment of the claimant's damages.
The Board concludes the claim should be paid in the amount of $506.00 based on equitable principles. The Board further concludes, under authority of s.
16.007 (6m), Stats., payment should be made from the University of Wisconsin appropriation s.
20.285 (1)(h), Stats.
15. John Sadowski of Muskego, Wisconsin claims $3,024.85 for uninsured medical expenses allegedly incurred due to an accident at State Fair Park. The claimant states that on August 2, 2003, he was at the Wisconsin Products building at SFP. He states that a woman with a baby stroller was coming out of the building and was having trouble pushing open the door. The claimant states that he went to assist the woman and that the door was very heavy. He states that the only way to push open the heavy door was to brace his other hand on the door jam. While the claimant had his hand on the jam, the door on the other side swung closed very quickly and crushed his pinky finger. The claimant requests payment for the portion of his medical costs not covered by his insurance.
Wisconsin State Fair Park recommends that this claim be denied. SFP believes that there was no negligence on the part of any state employee or agency. The claimant was holding a door open with his other hand placed on the door jam. According to the police report of the incident he "did not realize" where this hand was placed and someone else accidentally shut the other door on his finger. SFP does not believe that there was any negligence and that payment of the claim is not warranted.
The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employees and this claim is neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
The Board concludes:
1. The claims of the following claimants should be denied:
Charles Armitage/Neillsville Foundry, Inc.
Bergman Companies, Inc.
Ralph Rischmann
Ernestine Walker
Lifenet, LLC
Scott Knapp/SK Exotics and Rodentry
Village of Sturtevant
Teresa Oettinger
John Sadowski
2.
Payment of the following amounts to the following claimants from the following statutory appropriations is justified under s.
16.007, Stats:
3. The Board declines to reconsider the claim of David F. Kral, which was considered and denied by the Board on December 5, 2003.
4. The Board approves development of a Claims Board web site.
Dated at Madison, Wisconsin this 13th day of July 2004.
Alan Lee, Chair
Representative of the Attorney General
John E. Rothschild, Secretary
Representative of the Secretary of Administration
Representative of the Governor
Scott Fitzgerald
Senate Finance Committee
Dan Meyer
Assembly Finance Committee
__________________
Relating to nursing homes and facilities for the developmentally disabled.
Submitted by Department of Health and Family Services.
Report received from Agency, July 19, 2004.
Referred to committee on Health, Children, Families, Aging and Long Term Care, July 21, 2004
.
__________________
Senate Enrolled Proposals
The Chief Clerk records:
Senate Joint Resolution 6
Report correctly enrolled on July 14, 2004.
Chief Clerk's Report
The Chief Clerk records:
Senate Joint Resolution 6
Deposited in the office of the Secretary of State on July 16, 2004.
