Tuesday, August 24, 1999
10:00 A.M.
Ninety-Fourth Regular Session
The Senate met.
The Senate was called to order by Senator Fred Risser.
The Chair, with unanimous consent, asked that the proper entries be made in the journal.
__________________
Read first time and referred:
Senate Bill 221
Relating to: presumption of parenthood when the egg or sperm is donated or when a surrogate mother gives birth to the child.
By
Senator
Baumgart
, by request of Jerry McCabe.
To committee on Judiciary and Consumer Affairs.
__________________
State of Wisconsin
Claims Board
August 17, 1999
The Honorable, The Senate:
Enclosed is the report of the State Claims Board covering the claims heard on July 29, 1999.
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 in the State Capitol, Room 416 North, Madison, Wisconsin on July 29, 1999, upon the following claims:
Claimant Agency Amount
In addition, the following claims were considered and decided without hearings:
Claimant Agency Amount
The Board Finds:
S238
1. Robert Stobb of Oshkosh, Wisconsin claims $330.00 for damage to his garage door. In April 1999, the claimant was driving a DOA Fleet vehicle equipped with a 3' x 5' trailer. The claimant states that while he was backing into his driveway, he misjudged the overall length of the vehicle and trailer and backed into his garage door, causing damage to the door. The claimant believes he should be reimbursed for the cost of fixing the garage door, since the damage occurred while he was driving a DOA vehicle. The DOA recommends denial of this claim. It is apparent that the damage to the claimant's garage door was caused by his own "misjudgment." While the claimant may have an insurance claim, the DOA does not believe there is any liability on the part of the state for self inflicted damage to the claimant's property, accidental or otherwise. 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. Dean Rahn of Beaver Dam, Wisconsin claims $3,169.50 for legal fees and lost wages allegedly related to his employment at Fox Lake Correctional Institution. Another FLCI employe, Thomas Patzer, began stalking the claimant's wife. Ms. Rahn identified Mr. Patzer from a photo line-up and, at FLCI's request, provided a written statement related to her identification of Mr. Patzer. This eventually led to a restraining order against Mr. Patzer. Mr. Patzer discovered Ms. Rahn's involvement and subsequently sued her. The suit was dismissed with prejudice and without costs, however, the Rahns incurred legal fees defending Ms. Rahn from the lawsuit. The Department of Justice notified the claimant's insurance company, but they denied coverage for the legal costs because they believed it was not covered under the Rahn's policy. The DOJ had been initially informed of the lawsuit, however, because of a severe time restriction in developing and submitting a timely response to the Court, it became necessary for the Rahns to obtain their own counsel. Further, they were not made aware of the need to notify the DOJ to provide representation and were not told that the DOJ would be able to provide said representation (because of the initial belief that their homeowners insurance would cover representation costs). The claimant requests payment of legal costs and lost wages caused by this incident. The DOC agrees with the statement of facts contained in the claim. The claimants incurred these legal expenses only because Mr. Rahn works for the DOC and Ms. Rahn testified in support of the Department's position in a litigation situation. The DOC feels that it cannot allow correctional officers and their families to bear the burden of legal expenses they incur solely and directly because they work for the DOC. Not only would this be unfair, it would undermine officer morale and actually further the plaintiff's interest in the lawsuit (by damaging the officer and his family). However, the DOC does not support payment of Ms. Rahn's lost wages. Witness fees compensated for any wages she lost due to testifying. All citizens have a duty to present their testimony to assist the courts in providing justice and witnesses are routinely given token compensation for carrying out their civic duty. The DOC supports payment of the legal fees and is also authorized to inform the board that the Department of Justice also supports payment of legal fees in this claim. The Board has determined that $1,500 of the attorney fees has been paid by the claimant with a balance of $1,429.50 outstanding to the attorney. The Board concludes the claim should be paid in the reduced amount of $2,929.50--$1,500 made payable to the claimant and $1,429.50 made payable to the claimant's attorney, Elbert and Pfitzinger, based on equitable principles. The Board further concludes, under authority of s.
16.007 (6m), Stats., these payments should be made from the Department of Corrections appropriation s.
20.410 (1)(a), Stats.
3. David M. Stasik of Radisson, Wisconsin claims an undetermined amount for damages related to the miscalculation of his retirement benefits by the Department of Employe Trust Funds. In December 1996, the claimant received a retirement benefits estimate and application form from ETF, which stated that he would receive a $2488 per month annuity until he reached age 62, then $1722 per month for life. This estimate was calculated in error by ETF, which gave the claimant credit for 10 more years of creditable service than he had actually earned. In March 1998, ETF discovered the error and notified the claimant that his annuity would be cut by over $500 per month and that he had to repay ETF $7074.74. The claimant states that this has caused him great financial hardship. He disputes ETF's assertion that he should have suspected that the December 1996 estimates were incorrect, because they differed significantly from earlier benefit estimates. The claimant believes that it is ETF's responsibility to ensure the accuracy of its calculations and does not believe that the average person should be responsible for double checking the accuracy of calculations that ETF admits are extremely complicated. ETF believes that the claimant should have suspected that the annuity estimates were incorrect, but admits that an ETF employe made errors in calculating the claimant's benefit estimates. Despite ETF's admission of the error, Wisconsin Statutes do not allow for payment to the claimant from the Public Employe Trust Fund (see Wis. Stat. s.
40.01 (2)). Furthermore, the Wisconsin Administrative Code s.
ETF 11.03 (2)(b), provides that a benefit under Wis. Stat. Chapter
40 may not be granted by the ETF board, regardless of erroneous or mistaken advice or of any negligence, unless the appellant is eligible for the benefit. ETF is therefore unable to continue to pay the claimant a monthly annuity based on an incorrect number of years of service. The Board concludes the claim should be paid in the amount of $5,000.00 based on equitable principles. The Board further concludes, under authority of s.
16.007 (6m), Stats., payment should be made from the Claim Board appropriation s.
20.505 (4)(d), Stats.
