7. Wisconsin Gas Company of Milwaukee, Wisconsin claims $965.49 for gas loss and repair cost for its damaged gas line. The claimant alleges that on or before April 17, 1996, the Department of Transportation cut through the claimant's gas line while installing a road sign near Caledonia, Wisconsin. The claimant believes that DOT failed to take reasonable action and call to have the location of the underground gas mains and service lines marked in accordance with Wisconsin Statutes s.
182.0175. The claimant requests $531.00 for labor, $105.24 for equipment and materials, and $329.25 for gas loss, for a total claim of $965.49. DOT states that in 1987 it held a series of meetings with various utilities to discuss permit fees and locate services. A compromise agreement was reached that DOT would waive permit fees and make every effort to request locate services prior to digging, in exchange for which the utilities would hold DOT harmless for damage to their facilities. This agreement has been policy since 1989. This agreement indemnifies DOT for any unintentional damage to utility lines during DOT's normal course of business. This includes "damage to any property, lines or facilities placed by or on behalf of the applicant, pursuant to this permit or any other permit issued by the State for location of property, lines or facilities on highway right-of-way in the past or present". The indemnification language appears on every application/permit to bury utility lines on a DOT right of way. DOT makes every effort to call Diggers Hotline whenever possible and practical, however, DOT's primary duty is to install traffic signs in a timely manner. In this instance, DOT personnel were installing traffic signs on STH-10, when a Waupaca County Sheriffs Officer requested that they move an existing sign a few feet off of STH-10 to allow room for the County snowplow to adequately plow snow without striking the sign. The sign crew chief made a discretionary decision that the sign could be moved a few feet without a problem. There was no willful intention on the part of DOT to damage the gas main. The claimant knowingly entered an agreement to indemnify and hold the state harmless and repeatedly reaffirmed that agreement by endorsing the permit applications. They should not now be allowed to claim that the state should pay for these damages. The Board concludes the claim should be paid in the amount of $965.49 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 (3) (eq), Stats.
8. Wisconsin Gas Company of Milwaukee, Wisconsin claims $1,590.07 for gas loss and repair cost for the claimant's damaged gas line. The claimant alleges that on or before November 4, 1997, the Department of Transportation damaged the claimant's gas main while installing a stop sign near Sparta, Wisconsin. The claimant believes that DOT failed to take reasonable action and call to have the location of the underground gas mains and service lines marked in accordance with Wisconsin Statutes s.
182.0175. The claimant also alleges that the original locate marks had been removed through the addition of topsoil and possibly by a sidewalk, and that DOT had been put on notice that it would need to order new locate marks before performing any work in that area, but failed to do so. The claimant requests $517.00 for labor, $568.73 for equipment and materials, and $504.34 for gas loss, for a total claim of $1,590.07. DOT states that in 1987 it held a series of meetings with various utilities to discuss permit fees and locate services. A compromise agreement was reached that DOT would waive permit fees and make every effort to request locate services prior to digging, in exchange for which the utilities would hold DOT harmless for damage to their facilities. This agreement has been policy since 1989. This agreement indemnifies DOT for any unintentional damage to utility lines during DOT's normal course of business. This includes "damage to any property, lines or facilities placed by or on behalf of the applicant, pursuant to this permit or any other permit issued by the State for location of property, lines or facilities on highway right-of-way in the past or present". The indemnification language appears on every application/permit to bury utility lines on a DOT right of way. DOT makes every effort to call Diggers Hotline whenever possible and practical, however, DOT's primary duty is to install traffic signs in a timely manner. In this instance, Diggers Hotline was called and the area was marked. The marking flags stopped approximately 40 to 50 feet from the intersection where the sign post hole was dug. At the time of the incident, there were various contractors in the area performing other types of construction and landscaping, who may have inadvertently disturbed the marking flags. The claimant claims to have advised someone on the state crew to call for new markers, however, DOT personnel had no knowledge of any problem with the markers. It is possible that the information had been given to one of the contractors working in the area. DOT felt safe in digging due to the distance between the markers and the digging site. There was no willful intention on the part of DOT to damage the gas main. The claimant knowingly entered an agreement to indemnify and hold the state harmless and repeatedly reaffirmed that agreement by endorsing the permit applications. They should not now be allowed to claim that the state should pay for these damages. 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.
S780
9. Wisconsin Gas Company of Milwaukee, Wisconsin claims $450.77 for gas loss and repair cost for the claimant's damaged gas line. The claimant alleges that on or before August 20, 1997, the Department of Transportation damaged the claimant's gas line while installing a road sign near Downing, Wisconsin. The claimant believes that DOT failed to take reasonable action and call to have the location of the underground gas mains and service lines marked in accordance with Wisconsin Statutes s.
182.0175. The claimant requests $153.00 for labor, $293.70 for equipment and materials, and $4.07 for gas loss, for a total claim of $450.77. DOT states that in 1987 it held a series of meetings with various utilities to discuss permit fees and locate services. A compromise agreement was reached that DOT would waive permit fees and make every effort to request locate services prior to digging, in exchange for which the utilities would hold DOT harmless for damage to their facilities. This agreement has been policy since 1989. This agreement indemnifies DOT for any unintentional damage to utility lines during DOT's normal course of business. This includes "damage to any property, lines or facilities placed by or on behalf of the applicant, pursuant to this permit or any other permit issued by the State for location of property, lines or facilities on highway right-of-way in the past or present". The indemnification language appears on every application/permit to bury utility lines on a DOT right of way. DOT makes every effort to call Diggers Hotline whenever possible and practical, however, DOT's primary duty is to install traffic signs in a timely manner. In this instance, DOT was doing some final touch up work for the signing of a recently completed construction project. A decision was made to move a signpost from behind a guy wire in order to make the sign more visible. The moved pole was placed at a maximum of 24 feet 4 inches from the center line of STH-170. The claimant's permit called for the gas line to be placed 27 feet from the center line of STH-170. The gas line had been placed at least 3 feet closer to the center of the road than it was permitted to be. There was no willful intention on the part of DOT to damage the gas main. The claimant knowingly entered an agreement to indemnify and hold the state harmless and repeatedly reaffirmed that agreement by endorsing the permit applications. They should not now be allowed to claim that the state should pay for these damages. The Board concludes the claim should be paid in the amount of $450.77 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 (3) (eq), Stats.
10. Cedar Grove Cheese, Inc. of Plain, Wisconsin claims $711.61 for damage to equipment at the claimant's dairy plant during an inspection by a Department of Agriculture, Trade & Consumer Protection Inspector on January 14, 1998. The claimant requests reimbursement for the cost of repairing the equipment in the amount of $711.61. DATCP does not contest payment of this claim. DATCP's inspector has admitted that he caused the damages and an inspection of the incident by the inspector's field supervisor has confirmed the claimant's allegations. DATCP therefore acknowledges limited liability for the costs incurred by the claimant to fix the equipment. The Board concludes the claim should be paid in the amount of $711.61 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 & Consumer Protection appropriation s.
20.115 (1) (a), Stats.
11. National Farmers Organization of Fond du Lac, Wisconsin claims $102.38 for the cost to repair copy machine that was allegedly damaged by Department of Agriculture, Trade & Consumer Protection inspectors on January 7, 1998. During the inspection, one of the inspectors placed a gallon of liquid sanitizer on the glass of the copy machine, in order to make a photocopy of the label on the bottle. Some sanitizer leaked from the bottle and damaged the machine. DATCP does not contest payment of this claim. The DATCP inspector admits placing the bottle of sanitizer on the machine to photocopy the label. DATCP therefore acknowledges limited liability for the costs incurred by the claimant to fix the machine. The Board concludes the claim should be paid in the amount of $102.38 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 & Consumer Protection appropriation s.
20.115 (1) (a), Stats.
12. Gus W. Ernst of Plymouth, Wisconsin claims $2,754.00 for a relocation incentive award (RIA) related to his job transfer. As a result of the Department of Natural Resources' reorganization, the claimant was displaced out of his job as a Conservation Warden Supervisor 2. The claimant accepted a voluntary demotion to a Conservation Warden Supervisor 1 position in Plymouth, WI. Prior to accepting the position, the claimant contacted the Southeast Region Human Resources Manager, who told him that he would receive the RIA if he accepted the position. The claimant double-checked this information with his immediate supervisor, who also told him he would receive the RIA if he accepted the Supervisor 1 position. The claimant states that the receipt of this award was a factor in his family's eventual decision to accept the position and relocate to Plymouth, WI in September 1997. In December 1997, the claimant was informed that he would not receive the RIA because RIAs are granted only to employes who relocate as a result of promotion or transfer, not demotion. The claimant requests payment of the $2,754.00 RIA that he was told he would receive. DNR recommends payment of this claim. There is no dispute that the claimant was told the he would receive the RIA and DNR believes that he accepted the new position with that understanding. The claimant is without fault in this matter. Because of statutory restrictions, DNR is without authority to make the RIA payment in the absence of an award by the Claims Board. The Board concludes the claim should be paid in the amount of $2,754.00 based on equitable principles. The Board further concludes, under authority of s.
16.007 (6m), Stats., payment should be made from the Department of Natural Resources appropriation s.
20.370 (3) (mu), Stats. The Board also strongly urges the DNR to instruct all of its employes on the statutes and policies relating to relocation incentive awards, so as to avoid future misunderstandings of this type.
13. Lichtfeld Plumbing, Inc. of Madison, Wisconsin claims $172.00 for unpaid labor time allegedly incurred because a state employe told the claimant's employes to stop work on a plumbing job at the Hill Farms State Office Building. The claimant was the low bidder for a plumbing proposal that included changing 6" water meters to 4" water meters. The claimant states that they were given flanges provided by the city to use on the job, however, when the claimant's employes arrived on site they discovered that the flanges did not match the new 4" meter and could not be used. The plumbers called the office and the claimant proceeded to try and locate flanges that would work for the job. Several hours later, the claimant called back to the job site and was allegedly told by Stan Lynch, a Department of Administration employe, that he had told the plumbers to stop working. The claimant states that this was done without its knowledge or approval and requests reimbursement for two hours lost labor time in the amount of $172 plus interest. DOA states that Mr. Lynch did not pull the plumbers off the job, but only told them to call their office regarding the dispute that had arisen over the flanges. This occurred after Mr. Lynch had already spoken with the claimant, who had indicated that the state would be charged extra because the city-provided flanges could not be used. Several other telephone conversations occurred between the claimant and DOA personnel, which resulted in an agreement that the claimant would not charge the state for the cost of having to use other flanges and would complete the job at the originally quoted price. DOA also states that the claimant was never told that it had to use the flanges provided by the city. The state offered no direction as to how the meter change should be accomplished, rather, design of the plumbing job was left to the expertise of the vendor. The claimant has been paid in full for the plumbing job and should not receive any additional compensation. 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. (Member Main not participating.)
S781
14. Scott and Brenna Miles of Santa Monica, California claim $720.21 for the cost of concert tickets and uninsured medical expenses allegedly incurred due to an accident at the University of Wisconsin. The claimants were attending a concert at Camp Randall on June 25, 1997. Brenna Miles tripped on something on a step in the aisle and fell. Her ankle swelled up and she had to go to the emergency room for treatment. The claimants had health insurance coverage for the initial treatment, but not for the rehabilitation costs, which total $615.21. They also request reimbursement for the cost of the concert tickets ($105), since they missed the entire concert due to the accident. The UW recommends denial of this claim. Ms. Miles slipped on an unknown object while walking down the stairs. The UW feels there was no negligence on the part of a state employe and that there appears to be no equitable basis for payment. 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.
15. Barbara Mariann Rush of Middleton, Wisconsin claims $93.19 for vehicle damage allegedly caused by an accident on the grounds of Mendota Mental Health Institute, where the claimant is employed. On December 10, 1997, the claimant was on her way to work, driving very slowly because of snowy weather conditions. She states that the road had just been plowed, but that the plow had missed an area of the road and that this area was covered with loose snow. When she hit this area, the claimant's vehicle slid into the curb and her wheel cover was damaged. The claimant believes that snow removal personnel were negligent in missing this area of the road and requests reimbursement for her damages. She further states that she is a senior citizen on a fixed income and that it would be extremely difficult for her to absorb this cost. Her insurance deductible is $250. DHFS recommends that this claim be denied. Mendota Mental Health Institute has specific snow removal procedures. While every effort is made to remove snow from all roadways before employes arrive for work, the reality of a Wisconsin winter doesn't always allow for this. Drivers must take responsibility for maintaining control their vehicle. DHFS does not believe there was negligence on the part of its employes or that the claim should be paid based on equitable principles. 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.
16. James D. Weichelt of New Berlin, Wisconsin claims $673.13 for interest paid as a result of delinquent income tax. The claimant states that in 1996 he lived and worked in Illinois but maintained his Wisconsin driver's license, which, unbeknownst to him, kept him from being established as an Illinois resident for tax purposes. The claimant's employer withheld taxes for the State of Illinois in the amount of $1,227, considerably less than what would have been withheld for Wisconsin taxes. The claimant hired an accountant to prepare his 1996 taxes. The accountant filed a Wisconsin tax return on the claimant's behalf, claiming credit for the tax already paid to Illinois. The accountant told the claimant that Wisconsin and Illinois would work out the difference and that Wisconsin would send him a bill. The claimant states that he did not receive any bill from Wisconsin and contacted his accountant, who told him that the bill would come. The Department of Revenue did not send a bill until June 1997 and the bill was sent to the claimant's old address, his parent's house. The claimant's parents were out of town for the summer and he therefore did not receive the bill until August 1997. The claimant contacted his accountant and demanded that he straighten things out. The accountant then sent an amended tax return to the State of Illinois in order to get back the taxes that had been withheld. The claimant did not have the money to pay the delinquent Wisconsin taxes and was forced to wait until February 17, 1998, when he finally received the tax refund from Illinois. The claimant requests that he be reimbursed the $673.13 interest on his delinquent Wisconsin taxes, since the error was no fault of his own. DOR recommends denial of this claim. This claim involves a tax return that was prepared incorrectly by the claimant's accountant. The claimant's 1996 tax return was filed as a full-year resident of Wisconsin, claiming credit for taxes paid to the State of Illinois on the income earned in Illinois. Since a reciprocal agreement exists between Wisconsin and Illinois, all income of a Wisconsin resident is taxable in Wisconsin and DOR disallowed tax credit paid to Illinois. The claimant should pursue his claim against the accountant who incorrectly prepared his tax return. 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.
17. Deiss Sanitation of River Falls, Wisconsin claims $33,305.00 for attorney fees and reimbursement of two-thirds of a lawsuit settlement related to the claimant's work for University of Wisconsin-River Falls. The claimant was a contract waste hauler for UWRF from 1979 through 1985. During that period of time, the claimant deposited waste, including waste generated at UWRF, in the Junker Landfill. The Junker Landfill was subsequently found by the DNR to contain hazardous substances that were being released into the environment. Remedial clean up of the site was required. The Junker Landfill Trust assumed responsibility for the remediation activities. The Trust then commenced action against the claimant under the Resource Conservation and Recovery Act (RCRA),
42 U.S.C. 6972(a), for costs associated with the clean-up. The claimant settled this litigation by the payment of $40,000 to the Junker Landfill Trust. The claimant alleges that he was never informed that UWRF was exempt from paying a portion of the remediation costs and states that he would never have settled the way he did if he had known UWRF was not required to pay. He believes that he is an innocent party, who was hauling the UW's waste to a site approved by the DNR, and that it is unfair for the burden of the clean-up costs to fall on his small business. The claimant requests reimbursement of the portion of the settlement that he attributes to the waste generated by UWRF. This amount is calculated at $30,000, or three-quarters of the total, which the claimant contends reflects the percentage of his total waste generated by UWRF. The claimant also requests reimbursement of three-quarters of his attorneys fees, for a total claim of $33,305.00. The UW recommends denial of this claim. The state and the UW cannot be sued in either state or federal court without their consent, and that consent has not been given with respect to the RCRA litigation that underlies this claim. In effect, neither the state nor the UW can be compelled to participate in the remedial clean-up efforts undertaken by the Junker Landfill Trust, and thus cannot be compelled to pay costs incurred by the claimant in connection with the clean-up. The Board believes that a claim against the UW should have been made at the time of the settlement. Because of the settlement, the Board does not have sufficient facts to determine the role of the UW in this situation. Therefore, 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. (
Member Albers dissenting.)
The Board concludes:
1. The claims of the following claimants should be denied:
S782
Ringhand Meats & Beverages, Inc.
Green Tree Financial Services Corp
Delmar L. Smith
Tillman Mosley
Eugene Parks
Wisconsin Gas Company (claim #8)
Lichtfeld Plumbing, Inc.
Scott and Brenna Miles
Barbara Mariann Rush
James D. Weichelt
Deiss Sanitation
2.
Payment of the following amounts to the following claimants is justified under s. 16.007, Stats:
Marcia Klein $2,500.00
Wisconsin Gas Company (claim #7) $965.49
Wisconsin Gas Company (claim #9) $450.77
Cedar Grove Cheese, Inc. $711.61
National Farmers Organization $102.38
Gus W. Ernst $2,754.00
3. The board concludes that its long-standing policy of not holding hearings for stale-dated checks over six years old should remain in effect.
Dated at Madison, Wisconsin this _16_th day of September 1998.
Alan Lee, Chair
Representative of the Attorney General
Edward D. Main, Secretary
Representative of the Secretary of Administration
Dale Schultz
Senate Finance Committee
Sheryl Albers
Assembly Finance Committee
Stewart Simonson
Representative of the Governor
__________________
Relating to septage management.
Submitted by Department of Natural Resources.
Report received from Agency, September 28, 1998.
Referred to committee on Environment and Energy, September 30, 1998.
Relating to the wildlife damage abatement program and the wildlife damage claim program.
Submitted by Department of Natural Resources.
Report received from Agency, September 28, 1998.
Referred to committee on Environment and Energy, September 30, 1998.
Relating to readjustment of daily bag limits for walleye in response to tribal harvest.
Submitted by Department of Natural Resources.
Report received from Agency, September 28, 1998.
Referred to committee on Environment and Energy, September 30, 1998.
Relating to the education required of candidates to take the examination leading to receipt of a credential as a certified public accountant after December 31, 2000.
Submitted by Department of Regulation and Licensing.
Report received from Agency, September 29, 1998.
Referred to committee on Business, Economic Development and Urban Affairs, September 30, 1998.
Relating to commercial fishing for chubs on Lake Michigan.
Submitted by Department of Natural Resources.
Report received from Agency, September 28, 1998.
Referred to committee on Environment and Energy, September 30, 1998.
Relating to the definition of human residence as it pertains to the forest tax law landowners.
Submitted by Department of Natural Resources.
Report received from Agency, September 28, 1998.
Referred to committee on Environment and Energy, September 30, 1998.
Relating to administration of the long-term disability insurance program.
Submitted by Department of Employe Trust Funds.
Report received from Agency, September 25, 1998.
Referred to committee on Human Resources, Labor, Tourism, Veterans and Military Affairs, September 30, 1998.
Relating to the exemption of elevator access to certain areas within government-owned or operated buildings.
Submitted by Department of Commerce.
Report received from Agency, September 29, 1998.
Referred to committee on Business, Economic Development and Urban Affairs, September 30, 1998.
__________________
The committee on Education and Financial Institutions reports and recommends:
Relating to creating an exception for savings and loan associations to the 10% down payment requirement for a mortgage loan which is made to meet the objectives of the federal community reinvestment act.
