The department shall establish by rule procedures for the submission, review, settlement and determination of claims against the mining damage appropriation under this section. The rules shall include procedures for the proration of awards made under this section when the awards exceed the balance in the mining damage appropriation.
Any person may make a claim against the mining damage appropriation to recover damages for mining-related injuries.
Within 10 days of receiving a claim submitted under par. (a)
, the department shall notify the mining company alleged to have caused the claimant's damages that the claim has been made. Any company alleged to have caused the claimant's damages may, at its sole discretion, become a party to the proceeding.
(3) Recovery of damages under strict liability. 107.31(3)(a)(a)
When a claim under this section is not settled, an adjudicatory hearing shall be held. If after the hearing the department finds that the claimant has demonstrated by a preponderance of the evidence that claimant incurred damages from mining-related injuries, it shall make an award from the mining damage appropriation in an amount equal to the damages incurred, except as provided in sub. (4)
. Payment of the award shall not be delayed or limited in anticipation of any other recovery the claimant may receive by pursuing other remedies.
Damages under this section shall be awarded without regard to fault, except as provided in par. (c)
Contributorily negligent causation shall not bar recovery for a claim filed under this section by any person or his or her legal representative if such negligent causation was not greater than the causation of the mining company, but any award shall be diminished in proportion to the amount of negligent causation attributable to the person recovering.
No award of nonpecuniary damages may be made for a claim under this section unless the claimant demonstrates by a preponderance of the evidence that the claimant is entitled to nonpecuniary damages and that there is a causal relationship between the injury for which pecuniary damages have been awarded and the injury for which nonpecuniary damages are claimed.
Any amount otherwise recovered for the mining-related injury for which a claim is filed under this section shall reduce the amount awarded under this section by the amount otherwise recovered.
No award for a claim under this section may exceed $150,000 for all injuries less any amount subtracted under par. (a)
or sub. (3) (c)
No award for loss of society and companionship, pain and suffering or mental anguish may exceed a total of $20,000 and, in any event, no award for nonpecuniary damages may exceed 50% of the amount awarded for pecuniary damages.
No award may be made for punitive purposes.
No award for a claim under this section may exceed an amount equal to the balance in the mining damage reserve accumulation.
(5) Mining damage reserve accumulation. 107.31(5)(a)(a)
The mining damage reserve accumulation is calculated by subtracting the total amount of all mining damages awards paid from the appropriation under s. 20.445 (4) (a)
, 2001 stats., beginning on May 22, 1980 or paid from the appropriation under s. 20.165 (2) (a)
from the sum of:
If the balance of the mining damage reserve accumulation is less than $500,000 at the beginning of a fiscal year or falls below that amount at any time, the department shall delay the payment of all mining damage awards during that fiscal year until after the close of the fiscal year to determine the sufficiency of the mining damage reserve accumulation.
(6) State subrogated to claimant's rights.
The state is subrogated to the rights of a claimant who obtains an award under this section in an amount equal to the award and may bring an action under s. 107.32
against a mining company or join in an action brought by a claimant under s. 107.32
to recover the amount awarded the claimant. A claimant who receives an award under this section shall cooperate with the state in any action under this subsection. The department may withhold 5% of the total award to which a claimant is entitled under this section until the state decides whether to commence an action under this subsection or, if commenced, until the action is resolved.
(7) Admissibility of findings and conclusions.
The findings and conclusions under this section are not admissible in any civil action brought against a mining company.
Any party to a claim under this section may appeal a decision of the department to circuit court which shall conduct a full evidentiary hearing on the claim.
See also ch. DWD 82
, Wis. adm. code.
Liability of mining companies.
A mining company is liable for damages for mining-related injuries resulting from its prospecting, mining, refining or smelting in this state if, and to the degree that, the elements of liability are established in accordance with law, regardless of any change in the nature of the ownership of the interests in the prospecting or mining site, refinery or smelter held by the mining company and regardless of any reorganization, merger, consolidation or liquidation affecting the mining company.
History: 1979 c. 353
Limitations on claims and actions for mining-related injuries.
The periods of limitation under s. 893.925
apply to all claims and actions for damages arising under or governed by this subchapter.
History: 1979 c. 353
; 1979 c. 355
Application to sites where activities have ceased.
This subchapter does not apply to any prospecting or mining site on which prospecting or mining has ceased prior to May 22, 1980 unless prospecting or mining activities are commenced at the site after May 22, 1980, in which case any mining-related injury is within the scope of this subchapter.
History: 1979 c. 353
Application to current mining operations. 107.35(1)(1)
If a person incurs a mining-related injury and the mining waste or mine excavation was present, in whole or in part, prior to May 22, 1980 and the waste or excavation was from the prospecting, mining or other practice of a mining company that is actively engaged in mining or prospecting in this state on May 22, 1980, then s. 107.31
applies only if:
The person has fully pursued all other judicial or administrative remedies against the mining company to recover damages for the mining-related injury and the person or any party subrogated to the person's rights has not received compensation for the mining-related injury as a result of pursuing the other judicial or administrative remedies; or
The person chooses to pursue, as his or her sole remedy, compensation from the mining damage appropriation. If a person chooses to pursue a claim under this paragraph, he or she may not pursue any other remedy for the mining-related injury.
If a person makes a claim against the mining damage appropriation under the circumstances described in sub. (1) (a)
The claimant may introduce into evidence any relevant findings of fact made in any prior administrative or judicial proceeding.
The state is not subrogated under s. 107.31 (6)
to the rights of the claimant and, in any case, shall be bound by any decision regarding elements of liability other than causation and injury-in-fact made in any prior administrative or judicial proceeding involving the claimant.
If a person makes a claim against the mining damage appropriation under sub. (1) (b)
, the state may recover under s. 107.31 (6)
any payment received by the claimant from the mining damage appropriation only if, in addition to other elements of liability, the state proves that the mining-related injury was from mine excavations or mining wastes created after May 22, 1980. The state's burden of persuasion with regard to the latter element of liability may not be shifted to the mining company.
History: 1979 c. 353
Legislative Council Note, 1979: This section addresses the application of the mining damage award procedure to a mining-related injury that results from mining waste or a mine excavation which was present, wholly or partially, prior to the effective date of the bill and which resulted from the practices of a mining company actively engaged in prospecting or mining in this state on the effective date of the bill. A person who incurs a mining-related injury under these circumstances may make a claim against the mining damage appropriation only if he or she does not pursue any other remedy or, if other remedies are pursued, only if all other remedies have been exhausted and no compensation for the injury has been received as a result of pursuing other remedies. The state's subrogation rights are limited with respect to awards for mining-related injuries covered by this section. [Bill 570-S]