wednesDay, January 8, 1997
Ninety-Third Regular Session
The Chief Clerk makes the following entries under the above date.
__________________
State of Wisconsin
Senate Majority Leader
January 8, 1997
The Honorable, The Senate:
Pursuant to Senate Rule
20, I have made the following appointments to Senate Committees:
To the committee on Administrative Rules: Senators Grobschmidt, (Chair), Wineke, Wirch, Darling and Welch.
With regards to the members of the minority party, the appointments reflect the recommendations of that caucus.
Sincerely,
Chuck Chvala
Chair, Committee on Senate Organization
State of Wisconsin
Claims Board
December 18, 1996
The Honorable, The Senate:
Enclosed is the report of the State Claims Board covering the claims heard on December 4, 1996.
The amounts recommended for payment under $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,
Edward D. Main
Secretary
STATE OF WISCONSIN CLAIMS BOARD
The State Claims Board conducted hearings at the State Capitol Building, Madison, Wisconsin on December 4, 1996, upon the following claims:
Claimant Amount
1. Thomas VanRooy $ 4,379.65
2. Rob & Suzanne Saletra $ 10,426.14
3. Barb Abelmann $ 206,124.00
4. Poornima Srinivas $ 1,055.46
5. Scott Kaun $ 200.00
6. Gary Stelpflug $ 932,331.50
7. Plach GM Chrysler, Inc. $ 6,100.00
8. Donald Nerenhausen and Associates $ 6,494.53
9. Mews Companies, Inc. $ 114,212.74
10. Brevak Construction $ 25,034.47
In addition, the following claims were considered and decided without hearings:
11. Charles E. Crook $ 137.81
12. Laurie Tank $ 250.00
13. Franklin Meats, Inc. $ 320.00
14. Mark W. Hunter $ 315.00
15. Ernest Salathe $ 328.60
16. David Horzewski $ 97.02
17. Kerry Hochstatter $ 123.90
18. CNA Insurance Companies $ 363.80
19. CNA Insurance Companies $ 489.07
20. Carl Petersen $ 272.37
21. Randall Franzke $ 327.60
The Board Finds:
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1. Thomas VanRooy of Ashwaubenon, Wisconsin, claims $4,379.65 for damages related to Van Rooy's withdrawal from the Wisconsin Retirement System (WRS) in 1994. The claimant enrolled in the WRS in 1981. In 1991 he was injured and became permanently disabled. In July 1994 the claimant contacted the Department of Employe Trust Funds to receive a Separation Benefit Application which he filed with ETF on July 8, 1994. In September 1994 the claimant received payment of the separation benefit. He compared the amount paid by ETF to the statement of account that he had received earlier in the year and noticed that he had not received payment of any interest for 1994. He contacted ETF and was told that ETF only paid interest up to the January 1 prior to the separation benefit application and that the counselor to whom he spoke when requesting the application should have informed him of this. He was also told that the "fine print" of the application stated that interest would not be paid on moneys withdrawn before the end of the calendar year. Several days later he received a letter from an ETF supervisor, which acknowledged that this "fine print" could be easily overlooked and apologized for the misunderstanding. The claimant had not yet deposited the checks and asked if the money could be re-deposited into WRS. He was told that this was not possible. The claimant believes that ETF should have pointed out to him that he would not receive 1994 interest when he first called to discuss the separation benefit, since ETF acknowledges that the "fine print" on the application is easy to miss. The claimant requests interest on his WRS account from January through early September 1994. He also requests payment of the lost interest he would have accrued on the money to date. He calculates his loss at the 1993 rate of 11% interest per year, for a total claim of $4,379.65. The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employes and this claim is not one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
2. Robert and Suzanne Saletra of Bayside, Wisconsin, claim $10,426.14 for refund of overpayments garnished to satisfy income tax delinquencies for 1990 and 1991. The claimants have an established history of timely filing their income tax returns. In the late 1980's the claimants' mother transferred some mutual funds she owned to the claimants. The claimants sold the stocks in 1990. They had never owned stocks and were not educated in the complex record keeping responsibilities involved with mutual funds. The claimants' mother had moved and her records and papers had been lost, therefore, they were unsuccessful in their attempt to examine her financial records and obtain the information about the mutual fund needed to file their 1990 income tax return. The claimants became confused about what to do and, rather than seeking assistance, froze and did nothing. The claimants knew they had to file a 1990 return, but became afraid of the consequences of their procrastination. This fear also led them to neglect their 1991 and 1992 returns. In the fall of 1993, the Department of Revenue began garnishing Mr. Saletra's wages to collect the delinquent taxes. The claimants were never informed of the statute of limitations governing refund of any overpayment. The claimants hired an accounting firm to file their 1993 taxes and prepare the delinquent tax returns for 1990-1992. In May 1996 the late returns were filed. The claimants have been refunded their overpayment of $8,376.51 for 1992, however, overpayments for 1990 ($4,977.35) and 1991 ($5,448.79), have not been refunded due to the statute of limitations. The claimants do not feel it was fair that the DOR never informed them of the statute of limitations and also feel that the amounts assessed were unreasonable. The DOR seized $18,800 for an actual tax liability of only $184.40. Mr. Saletra's health is failing and the claimants request they be refunded the overpayments for 1990 and 1991. The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employes and this claim is not one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
3. Barb Abelmann of Madison, Wisconsin, claims $206,124.00 for medical expenses and related damages allegedly caused by a surgical error. The claimant required pelvic reconstruction surgery at UW Hospital and Clinics in January 1986 due to a motorcycle accident. Since the surgery, the claimant has been unable to adequately control her bladder or bowel functions. The claimant believes this is because the surgeon accidentally cut a nerve. She was told by a UW neurologist that her bowel/bladder dysfunction was a complication of the surgery and would probably correct itself within a year. The claimant was placed on a regimen of medications and catheterization to deal with the problem. In July 1986 the claimant re-entered the work force. It was very difficult for her to maintain a normal work and social schedule due to continuing bladder/bowel dysfunction. She experienced a number of embarrassing public episodes of fecal and urinary incontinence and was forced to leave her job in 1988. In 1994, the claimant had a urinary pump implant to help eliminate the dysfunction. This is an expensive surgery which will need to be repeated every six to seven years. She is no longer eligible for regular private health insurance, however, she is eligible for Medicare. She requests reimbursement for the medical supplies, HIRSP insurance and repeated surgeries she will require for the rest of her life. Her estimated expenses are $206,124. The UW did "write off" some of the costs of the urinary pump implant surgery. The claimant believes their decision to do so was an indirect admission that the hospital had accidentally injured her. Consequently, she believes that the UW has a continuing obligation to assist her with her future medical costs. The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employes and this claim is not one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
4. Poornima Srinivas of Madison, Wisconsin, claims $1,055.46 for vehicle damage caused by an accident with a UW employe in the Eagle Heights parking lot. The claimant saw the UW vehicle pass by her parking space and she then began backing out of the space. When she was about 3/4 out of the parking space, the UW vehicle began backing down the drive aisle towards her vehicle. She honked her horn but was not able to quickly pull back into her parking space because of the angle of her vehicle. The UW vehicle backed into the claimant's car, causing damage to the rear left panel. The claimant requests reimbursement of her repair cost, which is not covered by insurance. The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employes and this claim is not one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
5. Scott Kaun of Loganville, Wisconsin, claims $200.00 for damages related to slaughter of a cow. The animal had been imported from the United Kingdom, prior to the 1989 ban on such importation by the USDA. After the scare and publicity regarding bovine spongiform encephalopathy ("mad cow disease"), the animal was quarantined by the DATCP. At the request of the USDA and the DATCP, the claimant agreed to have the cow slaughtered in order to eliminate the threat of disease. The cow was appraised at $2200. The USDA has reimbursed the claimant $2000 and he now requests payment for the remaining $200. The Board concludes the claim should be paid in the amount of $200.00 based on equitable principles. The Board further concludes, under authority of s.
16.007 (6m), Stats., payment should be made from the Department of Agriculture, Trade and Consumer Protection appropriation s.
20.115(2)(a), Stats.
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6. Gary Stelpflug of Lancaster, Wisconsin claims $932,331.50 for damages relating to the quarantine of two herds of swine due to an outbreak of pseudorabies. On May 17, 1993, the swine were quarantined by a DATCP veterinarian. The claimant told the vet that he had 89% ownership of the animals in a partnership agreement with Farmers Hybred Financial Services (FHFS). He also told the vet that he was involved in a lawsuit with FHFS for breech of contract. The claimant states that the vet told him that, for all practical purposes, he was the owner of the swine and would receive the indemnity checks. The vet also allegedly told the claimant that the DATCP would make sure FHFS replaced any lost breeding stock. The claimant cleaned and disinfected the farms as required in the DATCP herd plan. FHFS never replaced the breeding stock. The first indemnity payment by the DATCP was issued as a two party check to both FHFS and the claimant. Because of the lawsuit, this check was placed in a trust account pending the court decision. The remaining indemnity checks were issued to FHFS only and not placed in the trust account. The claimant has not received any of the $65,792.50 in indemnity payments. The claimant does not understand how the DATCP could determine that FHFS was the owner of the swine when the claimant has 89% ownership of the animals and that the decision regarding ownership was a legal decision and should not have been made by a DATCP veterinarian. The court eventually decided that FHFS was the owner of the swine and released the trust account payments to FHFS. The claimant believes that the court relied on the word of the DATCP that FHFS owned the animals. He alleges that, in this manner, the DATCP directly interfered in his lawsuit and contracts with FHFS. The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employes and this claim is not one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
7. Charles Plach for Plach GM Chrysler of New London, Wisconsin, claims $6,100.00 for damages related to titles issued by the DOT. The claimant, a car dealership, accepted two vehicles. Each vehicle had a clear Wisconsin title at the time it was accepted by the claimant. When the claimant later tried to sell the vehicles, they discovered that both vehicles had been previously salvaged. Previous titles had stated "this is a salvage vehicle," however, the DOT later issued clean titles for both vehicles. The claimant can not sell a vehicle without disclosing that it has been previously salvaged and does not feel it was right for the DOT to "launder" the titles for the two vehicles. The claimant requests $6,100 for lost profits from the two vehicles. The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employes and this claim is not one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
8. Donald H. Nerenhausen and Associates of Oconto, Wisconsin, claims $6,494.53 for the difference between the contract overhead rate and the actual overhead rate incurred for a 1994 DOT project. Payment to the claimant under the standard contract with the DOT includes an overhead rate established by the DOT accounting office. An estimated overhead rate is used in the contract and after the project is completed the actual overhead rate is determined by a DOT audit. The contractor is required to reimburse the DOT for any overpayment if the actual overhead rate falls below the contract rate. Likewise, the DOT reimburses the contractor if the actual rate goes above the contract rate. Contrary to Facilities Development Manual Procedure 8-25-5, the DOT allowed the claimant to use the 1991 audit overhead rate of 98.66% for the years 1992 and 1993. The actual overhead rates for 1992 and 1993 were below 98.66% and therefore, the claimant owed the DOT $43,968.48. The claimant believes it is unfair that the DOT withheld all payments for a 1995 project to satisfy this debt and wants the department to make arrangements for a reasonable payment schedule as it has done in the past. The claimant alleges that the DOT said the 1994 overhead rate could be fixed "so there would be no adjustment." The 1991 rate of 98.66% was again used and an item was added to the 1994 contract stating "Overhead rate will be fixed at 98.66% of direct labor, without adjustment..." The actual 1994 audited overhead rate was determined to be 115.76%, however, the claimant was told it could not collect the difference from DOT. The claimant believes the DOT misrepresented the meaning of the word "fixed" in the contract and that they really meant "capped." The claimant requests payment of $6,494.53, the difference between the contract overhead rate and the actual overhead rate for 1994. The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employes and this claim is not one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
9. Mews Companies, Inc. of Butler, Wisconsin, claims $114,212.74 for damages related to a DOT highway construction project in 1992. The claimant alleges that it did 13,402 cubic yards of extra borrow excavation on the project for which it was not paid and that it has also not been paid for 2,000 cubic yards of scheduled excavation. The claimant requests $56.371.32 for unpaid borrow excavation. The claimant also alleges the DOT improperly denied access to the median strip, causing additional damages. Prior to the borrow excavation, the claimant needed to strip topsoil from the median. Free fill was available to the claimant from a nearby company during the time they planned to have access to the median. The claimant relied on access to this free fill when bidding for the project. They allege that the DOT denied them access to the median, delaying the topsoil removal and the borrow excavation. Because of the delay, the claimant lost the free fill and had to purchase fill. The claimant alleges that the delay also caused weather problems as it pushed work further into the "wet" season. The claimant requests $56,694.75 for damages related to denial of access to the median strip. The claimant also requests $25,046.37 for crushed aggregate base course installed along the shoulder of the project. The total claim for damages related to the project is $138,112.32. The DOT has paid the claimant $23,900 as a result of a change order for the crushed aggregate installation reducing the claim to $114,212.74. The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employes and this claim is not one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
10. Brevak Construction, Inc. of Washburn, Wisconsin, claims $25,034.47 for damages relating to the construction of the Hurley Information Center on Highway 51 in 1992. The claimant was a subcontractor for Angelo Luppino, Inc. (ALI), the prime contractor for this project. The claimant states there was rock that needed to be excavated at the project site and that payment for removal of this rock was not included in the contract between the state and ALI. The claimant spoke with DOT personnel and alleges that they agreed there was rock at the site which needed to be removed and that a change order should be submitted for payment of this excavation. The claimant submitted costs to ALI and requested that they submit a change order request to the state. ALI apparently made an oral request but never submitted a written change order request to the DOT. The oral request was denied. The claimant also alleges that the DOT did not correctly calculate the excavations below subgrade (EBS) and as a result, ALI and the claimant, as its subcontractor for excavation, did not receive the full amount due to it for EBS for this project. The claimant requests the sum of $15,816.15 for expenses with regard to rock removal plus 15% for profit and 12% for overhead, for a total of $20,086.51, together with the sum of $4,948.32 for under reported EBS. The claimant brought a lawsuit against ALI which was settled for $4,000. The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employes and this claim is not one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
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11. Charles E. Crook of Waupun, Wisconsin, claims $137.81 for restitution money taken from his inmate account. In October 1995 the claimant was involved in a disturbance at Oakhill Correctional Institution. As a result of that disturbance, the claimant was transferred to Columbia Correctional Institution. As partial restitution, the claimant was charged $137.41, or one-fourth of the mileage and staff wages for his transfer to Columbia Correctional. The claimant does not believe the Department of Corrections has the authority to seize funds from his account for this reason without due process. The claimant agrees that the DOC is allowed to require inmates to pay restitution, however, he contends that mileage and wages do not fall under the definition of "damages" for which DOC is allowed to collect restitution. The claimant does not deny that he was involved in the disturbance which resulted in his transfer, however, he believes he has been adequately reprimanded by being placed in segregation and having 9 months added to his sentence. He does not believe that DOC has the authority to also seize restitution money from his account. The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employes and this claim is not one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
12. Laurie Tank of Waupun, Wisconsin, claims $250.00 for damage to the her personal vehicle caused by an accident which occurred while she was traveling to a work related activity. The claimant was on her way to present certified copies of DOC records at the Federal Courthouse in Madison. The claimant was driving on a one-way street looking for a place to park and made a right-hand turn into a parking lot. As she turned into the lot, another vehicle struck her car on the passenger side. Her insurance covers all but her $250 deductible. She requests reimbursement for this amount. The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employes and this claim is not one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
