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.
No action taken.
Relating to full-time and part-time open enrollment.
No action taken.
Relating to environmental education requirements and an urban education license.
No action taken.
