Tuesday, May 30, 2006
10:00 A.M.
Ninety-Seventh Regular Session
The Senate met.
The Senate was called to order by the Senate Chief Clerk pursuant to Senate Rule
5 (4)(b).
The Chair, with unanimous consent, asked that the proper entries be made in the Journal.
__________________
The Chief Clerk makes the following entries dated Thursday
, May
25, 2006.
__________________
State of Wisconsin
Claims Board
May 25, 2006
The Honorable, The Senate:
Enclosed is the report of the State Claims Board covering the claims heard on May 5, 2006.
The amounts recommended for payment undr $5,000 on claims included in this report have, under the provisions of s.
16.007, stats., been paid directly by the Board.
The Board is preparing the bill(s) on the recommended award(s) over $5,000, if any, and will submit such to the Joint Finance Committee for legislative introduction.
This report is for the information of the Legislature. The Board would appreciate your acceptance and spreading of it upon the Journal to inform the members of the Legislature.
Sincerely,
JOHN E. ROTHSCHILD
Secretary
STATE OF WISCONSIN CLAIMS BOARD
The State Claims Board conducted hearings at the State Capitol Building in Madison, Wisconsin, on May 5, 2006 upon the following claims:
Claimant Agency Amount
The following claims were considered and decided without hearings:
Claimant Agency Amount
Canam Steel Corporation DFI $921.86
Barry Huebner DATCP $46.26
Darnell Jackson State Courts $195.00
Jeremy M. Wine DOC $1,686.32
Landwehr Construction DOA $73,562.70
Lisa R. Vadnais DHFS $556.83
The Board Finds:
1. Amanda Barbian of Madison, Wisconsin claims $2,627.54 for cost incurred due to failure of the DOT to carry forward a salvage brand from a previous title. In April 2005, the claimant purchased a 1996 Toyota Corolla from a private party. At the time of purchase, the WI title indicated "previously titled in MN" with no other brands. The claimant states that she began noticing mechanical problems soon after the purchase. The claimant took the car to be checked by several mechanics, who uncovered that the vehicle needed brake repair, and was missing the engine mounts and both airbags. The claimant did further research on the vehicle and discovered that it had been branded as salvage in MN, but that the WI DOT had not carried forward that brand. The brake repair cost $264.75 and a temporary fix for the engine mounts cost $37.98. The claimant has received an estimate of $2,324.81 to replace the airbags and permanently fix the engine mounts. She requests reimbursement of $2,627.54 for the repair costs.
The DOT recommends payment of this claim in the reduced amount of $1,650. The DOT admits that there was negligence on the part of a state employee, who failed to carry forward the salvage brand from the MN title. However, DOT points to the fact that it would not be unusual for a vehicle with 96,000 miles on it to need brake work, and DOT therefore does not feel that the claimant should be reimbursed for that repair. DOT states that salvage vehicles are usually valued at 50% of their purchase price, depending on the salvage brand. DOT therefore believes that, since the claimant intends to keep the vehicle, she should be reimbursed for 50% of her $3,300 purchase price, $1,650.
The Board concludes the claim should be paid in the reduced amount of $2,362.79 based on equitable principles. The Board further concludes, under authority of s.
16.007 (6m), Stats., payment should be made from the Department of Transportation appropriation s.
20.395(5)(cq), Stats.
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2. Charlotte B. Mahoney
of Milwaukee, Wisconsin claims $817.99 for refund of interest assessed on delinquent income tax assessments for tax years 1999 through 2001. The claimant is 95 years old. In 1999, she was injured in a home accident, which required hospitalization, surgery, and an extended period of rehabilitation in a nursing home. She also suffered several small strokes, which impaired her memory. Much of the mail and paperwork she received during this time was lost and/or misplaced. When the claimant's youngest son tried to get her paperwork together to do her taxes, he was unable to find all of the needed information and he began contacting the IRS to obtain the missing pieces. The claimant's son also experienced personal hardship caused by the sudden and life-threatening illness of his own son in 2001. The claimant's son was finally able to complete the late federal and state returns in the spring of 2004. The claimant states that her taxes have always been filed in timely fashion and that there was no deliberate attempt to avoid paying her taxes. She states that it was only the extreme extenuating circumstances suffered by her family during her illness and that of her grandson, which caused the delay in filing these taxes. Due to those extenuating circumstances, she requests reimbursement of the interest charged.
The DOR does not recommend payment of this claim. The DOR has already refunded $452.01, which represents late filing fees, collection fees and a reduction in interest from delinquent interest to regular interest. The DOR points to the fact that regular interest is not appealable under the law and the DOR therefore recommends 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.
3. United Mechanical, Inc. of Racine, Wisconsin claims $139,961.56 for additional contract costs allegedly incurred due to delays in a Regional Probation and Parole Facility project in Sturtevant Wisconsin. The claimant states that massive delays were caused by the unavailability of municipal sewer and water from the Village of Sturtevant via the DOA. The claimant states that work on the project was scheduled to commence on March 25, 2002, but that sewer and water was not available until August 12, 2003, almost a year and a half late. The claimant alleges that this long delay made timely completion of the project impossible, and forced the claimant to make major adjustments to its schedule, workforce and sequencing of work. The claimant states that it worked diligently to attempt to keep the project on schedule, by working around the lack of sewer and water, but that doing so caused significant additional expenses. The claimant believes that case law holds the state responsible for any inefficiencies created by the owners by the state's failure to ensure that sewer and water was provided on schedule. The claimant requests reimbursement for its additional costs.
The DOA recommends denial of this claim because DOA believes that it is without merit as against the state, and that the claimant has unduly inflated its additional costs, including costs in its claim that are completely unrelated to the sewer and water problem. The DOA does not deny that the law provides that the state is responsible for inefficiencies it causes. However, in this instance, the DOT denies that it caused the delays in the water and sewer connections. The Village of Sturtevant refused to allow sewer and water connections until the state paid what amounted to a permit fee under a local ordinance, a fee which the state refused to pay. The state fought a year long battle with the Village over these fees and the Village finally allowed the connections in May 2003. The DOA points to the fact that the Claims Board also denied the Village's September 2003 claim for payment of this fee. The DOA argues that the delays caused by the Village were simply unforeseen by both parties and that the state did not act fraudulently or unreasonably in dealing with the permit fee issue, but instead made every reasonable effort to persuade the Village to allow the hookups. The DOA also points to the fact that it made alternate arrangements to provide water and that there was no time during the field work that water was not available. Finally, the DOA points to the fact that many of the claimant's alleged damages deal with overall delays in the project, but are in no way related to the water/sewer issue as alleged. The DOA believes that the Village of Sturtevant bears full responsibility for any alleged harm suffered by the claimant caused by the sewer and water connection delays and that the claimant should pursue their claim against the Village of Sturtevant.
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.)
4. Scott Fields of Koln, Germany claims $5,000.00 for wages allegedly due for work performed by the claimant for a UW professor. The claimant states that he was hired by UW Professor Douglas Rosenberg in March 2003 for a series of multi-media performances. The claimant states that he scheduled bookings, made travel arrangements, and composed and performed music for the performances. The claimant states that at the time, he believed that he was working for Mr. Rosenberg. The claimant now believes that he was actually employed by the UW and points to the April 13, 2005, letter from UW Legal Counsel Ben Griffiths in support of that assertion. The claimant states that he was paid by Mr. Rosenberg for some of his services, but that Mr. Rosenberg failed to pay him for his administrative work scheduling the tour and making travel arrangements. The claimant now requests payment for 200 hours of administrative work at $25 an hour, for a total claim of $5000.
The UW recommends denial of this claim. The claimant filed a complaint against Mr. Rosenberg in Dane County Circuit Court. The UW states that Mr. Griffiths' April 13, 2005, letter takes responsibility for the claimant's alleged contract only because it was related to activities in the scope of Mr. Rosenberg's employment. The UW points to the decision of Court Commissioner Marjorie Schuett, who concluded that the claimant had not established that he was entitled to payment because there was no agreement that he would be paid for administrative services he allegedly provided. The court decision referenced a 3/13/04 email from the claimant to Mr. Rosenberg, in which the claimant stated "Our deal was that I would be compensated only for days spent gigging, rehearsing, and traveling. The time I have spent many hours booking and composing was for the collective good. I figured that was okay because there would be a substantial amount of work to come." The court also pointed to the fact that it was only after Mr. Rosenberg cancelled the project that the claimant sought payment for his administrative services. The court concluded that there was no agreement between the claimant and Mr. Rosenberg for payment for these services. The UW states that this claim has been adjudicated and dismissed on the merits, a decision which the claimant did not appeal.
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 would be willing to reconsider this claim if significant new or additional evidence becomes available in the future.
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5. Levi Aho
of Eau Claire, Wisconsin claims $891.10 for damages allegedly related to the delay in the opening of Stanley Correctional Institution in 2002. This claim is one of a group of claims from employees who were offered jobs at Stanley Correctional. The prison was scheduled to open in the fall of 2002 and employees were given start dates in July and August of 2002. Many employees sold their homes, moved their families and left other jobs in anticipation of the new jobs at Stanley. The claimants allege that they received very late notice that the state was delaying opening of the prison until January 2003. As a result of this delay, many employees incurred additional expenses relating to moving and commuting to their old jobs while waiting for Stanley to open. These claimants relied on the state's stated start dates for the new jobs and they do not believe that they should be held responsible for the additional expenses incurred because the state decided to delay the opening. Mr. Aho requests reimbursement for one month's rent and security deposit, U-Haul rental, storage unit rental for 2 months, and mileage of 50 miles per day for 20 days at $0.36 per mile.
The DOC recommends denial of this claim. Mr. Aho sought a transfer from Kettle Moraine Correctional Institution to Stanley, which was to be effective July 15, 2002, however, the legislature delayed the opening of Stanley until January 2003. The DOC notified employees by phone and in writing as soon as the legislative action was known and prior to the assigned start dates. Mr. Aho eventually transferred to Stanley on September 9, 2002, and his employment with DOC was not interrupted by the delay in the transfer. The DOC believes that it is unclear from Mr. Aho's documentation to what extent the rent, U-Haul and storage unit expenses were incurred specifically because of the delay, and that these costs would not have been otherwise incurred. As for Mr. Aho's mileage claims, it is unclear whether this mileage figure is the difference between the distance he drove from his home to his old job and the distance he drove from his home to Stanley. Apparently he was driving to his old job at KMCI and continued to do so until the transfer to Stanley took place. Finally, the DOC states that the delay of the Stanley opening was an unforeseen action of the legislature and was completely out of the DOC's control. The DOC does not believe it should be held responsible for these expenses.
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.
6. Chris A. Lund of Eau Claire, Wisconsin claims $1,346.80 for damages allegedly related to the delay in the opening of Stanley Correctional Institution in 2002. This claim is one of a group of claims from employees who were offered jobs at Stanley Correctional. The prison was scheduled to open in the fall of 2002 and employees were given start dates in July and August of 2002. Many employees sold their homes, moved their families and left other jobs in anticipation of the new jobs at Stanley. The claimants allege that they received very late notice that the state was delaying opening of the prison until January 2003. As a result of this delay, many employees incurred additional expenses relating to moving and commuting to their old jobs while waiting for Stanley to open. These claimants relied on the state's stated start dates for the new jobs and they do not believe that they should be held responsible for the additional expenses incurred because the state decided to delay the opening. Mr. Lund requests reimbursement for 3,640 miles @ $0.37 per mile.
The DOC recommends denial of this claim. Mr. Lund sought a transfer from Jackson Correctional Institution to Stanley, which was to be effective July 15, 2002, however, the legislature delayed the opening of Stanley until January 2003. The DOC notified employees by phone and in writing as soon as the legislative action was known and prior to the assigned start dates. Mr. Lund eventually transferred to Stanley on November 17, 2002, and his employment with DOC was not interrupted by the delay in the transfer. Mr. Lund has not submitted any mileage or attendance records to support his mileage claim. The DOC believes that it is unclear whether this mileage figure is the difference between the distance he drove from his home to his old job and the distance he drove from his home to Stanley. Apparently he was driving to his old job at JCI and continued to do so until the transfer to Stanley took place. Finally, the DOC states that the delay of the Stanley opening was an unforeseen action of the legislature and was completely out of the DOC's control. The DOC does not believe it should be held responsible for these expenses.
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.
