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The Department of Employee Trust Funds makes no recommendation regarding payment of this claim. ETF states that in order for Mr. Henderson to continue life insurance coverage and the premium waiver granted due to his disability, he was required to submit two forms to Minnesota Life each year—a medical certification from his physician and a form concerning his current employment status. ETF states that in 1988, only the physician form was completed and returned. ETF states that Minnesota Life notified Mr. Henderson that his insurance was terminated on June 21, 1988. ETF admits that it then erred when informing Mr. Henderson that he still had life insurance coverage in 1994. A copy of the Minnesota Life letter terminating coverage was in the file but was apparently missed by ETF staff. Later inquiries about the insurance by Mr. Henderson's family were also answered in error by ETF staff, who probably relied on the earlier erroneous correspondence they found in the file, thus repeating the earlier mistake. ETF regrets that its employees erroneously advised Mr. Henderson and his family that he was covered by life insurance after June 1988. ETF has instituted procedural changes to reduce this type of mistake. ETF reminds the board that the Attorney General has issued an official opinion stating that the Claims Board lacks authority to order payment from the Public Employee Trust Fund including the ETF appropriations in s.
20.515, see 74 Op. Atty. Gen. 193, 196 (1985). ETF does not believe it should advise the board how to expend Claims Board funds and therefore declines to make a recommendation.
The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employees 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. J.T. Roofing, Inc. of Saukville, Wisconsin claims $508,323.00 for extra costs allegedly incurred on a state building project at Mendota Mental Health Institute. The claimant states that during construction numerous events occurred which necessitated additional compensation. The claimant requested additional payment but was denied by the Division of Facilities Development. The claimants state that project specifications provided for removal of existing loose vapor retarder but that application of a primer, which was not required in the specifications caused loosening of additional vapor retarder that required additional work to remove ($166,827). The claimant states that it was never informed that only two of the eight courtyards at the project would be open and claims that limited courtyard access caused delays ($252,960). The claimant states that it was never informed that additional time would be required to gain access to the facility and that its employees had to wait on numerous occasions for 45-60 minutes to gain access to the project site, causing delays ($14,535). The claimant states that two DFD employees, Mr. McClyman and Mr. Mohns, gave contradictory instructions thus causing delays and extra costs ($8,976). The claimant states that it was harassed in various ways ($65,025): The claimant states that Mr. Mohns did not review submitted drawings in a timely fashion and that he refused to accept specified materials without additional documentation; that the project was shut down early in the mistaken belief that the temperature would fall below 40 degrees when the temperature remained in the 50-65 degree range; and that Mr. McClyman made racially offensive remarks to the claimant's employees, which caused the claimant to spend extra time and effort addressing this issue with its employees, who were ready to walk off the project because of Mr. McClyman's remarks. The claimant believes that the time delays that occurred on the project were not its doing, but were the result of the project engineer's refusal to meet with the claimant to resolve issues existing in the project engineer's mind.
In December of 2000, DFD offered the claimant $50,000 in settlement of this claim, however, the claimant rejected this offer. The DFD states that application of the primer was required in the specifications, as was removal of all loose vapor retarder. DFD states that the claimant was informed that access to the site would require specific check-in procedures and that not all of the courtyards would be accessible at any given time. DFD states that the claimant's drawings were rejected because they were incomplete and incorrect. DFD states that it required additional documentation because the claimant's materials were not clearly labeled by the manufacturer, as the specifications required. DFD states that when the project was halted for the winter, the claimant was already beyond the completion date with only about 1/3 of the project completed. There was no way to finish the project before winter weather set-in, so DFD did not believe there was any reason to take a chance on the weather and shut the project down. Finally, DFD states that there were accusations of inappropriate comments made by both DFD and the claimant's employees. DFD removed Mr. McClymen from the project and feels that was sufficient response.
The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employees 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. Danette M. Sebastian of Doylestown, Wisconsin claims $146.32 for vehicle damage allegedly caused by negligent maintenance of the parking lot at the Department of Revenue building. The claimant states that when she arrived for work on January 30, 2001, the parking lot at her building was solid ice. The claimant's vehicle slid into a bike rack in the parking lot and her car was damaged. The claimant states that she drove 42 miles to work that morning and did not encounter any difficulties on the road until she arrived at the DOR parking lot. The claimant believes DOA does a poor job of maintaining DOR parking lots. She states that DOA crews were out at 5:30 am on the morning of her accident salting and sanding downtown office locations and she feels that a crew should have been sent to take care of the DOR parking lot as well. She requests reimbursement for her vehicle damages of $146.32. The claimant has a $500 insurance deductible.
The Department of Administration recommends denial of this claim. DOA states that on the day in question, the Madison area was hit by a major ice storm. DOA states that efforts to clear many parking lots in Madison area were delayed by the sheer volume of ice. The DOA does not believe there was any negligence on the part of the state or its employees.
The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employees 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. Ray Wilkinson Buick Cadillac, Inc. of Racine, Wisconsin claims $625,864.00 for reduced profits allegedly caused by a DOT highway construction project. The claimant's business is located on Washington Avenue in Racine, WI. In the summer of 2000, the DOT conducted a widening project of Washington Avenue. The claimant states that his business experienced a reduction in traffic because of the limited access during the road construction. The claimant claims that national auto sales increased 6.3% during this period while his sales went down 12.06%. The claimant states that his business lost $625,864 due to the road construction and requests reimbursement for his lost profits.
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The DOT recommends denial of this claim. The DOT states that this road project was extremely difficult and complicated to conduct under traffic. The DOT states that the primary objective of this project was to increase the safety and flow of traffic. The DOT points to the fact that, despite the size and scope of the project, the claimant admits that drive by traffic remained at 50% to 65% of the normal volume. The DOT maintained access to the claimant's business throughout the entire project. The DOT believes that traffic interruptions and inconveniences, while unfortunate, are a part of every highway reconstruction project in the State. The DOT states that it makes every effort to keep the roads open to as much traffic as possible while balancing the safety of the public with the goals of the project. It is neither the practice nor the policy of the DOT to subsidize businesses during construction projects. The DOT points to the fact that the improvements made by this project will increase the volume of drive by traffic in the future and provide better access to the claimant's business, potentially increasing his sales in the future.
The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employees 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.
11. Barbara Hill of Oregon, Wisconsin claims $500.00 for automobile damage caused when claimant's vehicle was used for work related purposes. The claimant is a supervisor at UW-Madison. In September 2000, the claimant's department had a large shipment of packages that needed to be sent out according to a previously published schedule. Arrangements had been made to deliver supplies for the shipment to Delta Storage to prepare the packages. The claimant called UW Fleet several weeks before the shipment date to arrange for a van to transport the materials to Delta Storage, however, no vehicle was available. The claimant's personal van was large enough to transport the materials and staff. The staff member chosen to drive the claimant's vehicle had a good driving record and had been previously cleared by UW Risk Management to drive Fleet vehicles. The claimant states that while the driver was backing into a darkened loading dock area at Delta, he failed to notice a black truck parked in the area and backed into it. Damage to both vehicles was minor. The repair estimate for the claimant's van is over $600 and the claimant's deductible is $500.
The UW System recommends payment of this claim. The claimant was forced to use her vehicle because no state vehicles were available. Ordinarily, employees who use their own vehicles on state business assume the responsibility for all repairs associated with that use. In this case, however, the UW believes there is an equitable basis for payment, since the claimant did not have access to a state vehicle and was making every effort to meet a work-related deadline.
The Board concludes the claim should be paid in the amount of $500.00 based on equitable principles. The Board further concludes, under authority of s.
16.007 (6m), Stats., payment should be made from the University of Wisconsin appropriation s.
20.285(1)(i), Stats.
12. Lebanon Athletic Association of Watertown, Wisconsin claims $1,478.79 plus interest for refund of overpayment of sales taxes. The claimant states that the treasurer of his organization made an error when filing sales tax returns in 1997. The treasurer mistakenly paid taxes on both taxable income from sales and non-taxable income from donations that had been made to the claimant's organization. The claimant states that the DOR never informed them of any delinquency but that the DOR instead contacted the local town board, who revoked the claimant's liquor license, which forced them temporarily out of business. The claimant states that a new treasurer found the error in 1999 but that the DOR would not refund the money. The claimant believes that the overpayment, which was made in error, should be returned to his organization.
The DOR recommends denial of this claim. The claimant's sales and use quarterly tax return for June 30, 1997, was not timely filed and DOR issued an assessment in September 1997. DOR records indicate that this assessment was paid in November 1997. The DOR states that it received the missing quarterly sales tax return in October 1999. The claimant requested refund of a portion of the amount previously paid on the estimated assessment. The DOR states that it denied refund of the overpayment pursuant to s.
77.58 (4)(b), Stats. The DOR states that, based on the information provided by the claimant, it appeared that the tax was not being refunded to a customer and the request was not received until more than two years after the notice of assessment was issued.
The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employees 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.
The Board concludes:
1. The claims of the following claimants should be denied:
Lois A. Endres
Arthur Polk
Jack & Margot Raz
Julie & Ken Ganske
Lynette Henderson
JT Roofing, Inc.
Danette M. Sebastian
Ray Wilkinson Buick Cadillac, Inc.
Lebanon Athletic Association
2.
Payment of the following amounts to the following claimants is justified under s.
16.007, Stats:
Angelika Johnson $2,000.00
David J. Beranek $648.77
Barbara M. Hill $500.00
Dated at Madison, Wisconsin this __7__ day of June 2001.
Alan Lee, Chair
Representative of the Attorney General
John E. Rothschild, Secretary
Representative of the Secretary of Administration
Chad Taylor
Representative of the Governor
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Relating to uniform dwelling code inspection agencies.
Submitted by Department of Commerce.
Report received from Agency, June 11, 2001.
Referred to committee on Universities, Housing, and Government Operations, June 12, 2001
.
Relating to prescribing or dispensing schedule II amphetamines or schedule II anorectics.
Submitted by Department of Regulation and Licensing.
Report received from Agency, June 8, 2001.
Referred to committee on Health, Utilities, Veterans and Military Affairs, June 12, 2001
.
Relating to the USMLE examination.
Submitted by Department of Regulation and Licensing.
Report received from Agency, June 8, 2001.
Referred to committee on Health, Utilities, Veterans and Military Affairs, June 12, 2001
.
Senator Risser, with unanimous consent, asked that the Senate adjourn until Thursday, June 14 at 10:00 A.M..
Adjourned.
10:01 A.M.
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Senate amendment 1 to Senate Bill 168 offered by Senator Cowles.
Senate amendment 2 to Senate Bill 168 offered by Senator Cowles.
Senate amendment 3 to Senate Bill 168 offered by Senator Cowles.
