Wednesday, July 21, 2004
Ninety-Sixth Regular Session
The Chief Clerk makes the following entries under the above date.
__________________
State of Wisconsin
Department of Health and Family Services
July 15, 2004
The Honorable, The Senate:
As required by s.253.115 of the Wisconsin Statutes, I am enclosing the Department's annual report on the status of Universal Newborn Hearing Screening in Wisconsin. We are pleased to report that in 2003 Wisconsin hospitals have met the legislative criteria. By hospital report, 99.9% of all Wisconsin babies were born in hospitals with a universal newborn hearing screening program in 2003.
Sincerely,
Helene nelson
Secretary
State of Wisconsin
Claims Board
July 15, 2004
The Honorable, The Senate:
Enclosed is the report of the State Claims Board covering the claims heard on June 25, 2004.
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,
John E. Rothschild
Secretary
STATE OF WISCONSIN CLAIMS BOARD
The State Claims Board conducted hearings at the State Capitol Building in Madison, Wisconsin, on June 25, 2004, upon the following claims:
Claimant Agency Amount
The following claims were considered and decided without hearings:
Claimant Agency Amount
The Board considered whether or not to reconsider the claim of David F. Kral, presented to the Claims Board at a hearing on December 5, 2003, and subsequently denied by the board.
The Board discussed a proposal for the development of a Claims Board web site.
The Board Finds:
S827
1. Steve and Carla Newcomer
of McFarland, Wisconsin claim $4,925.00 for the cost of installing a shoreline riprap on their property. The claimants purchased property on Lake Waubesa in April 2003. The previous owner had installed his own shoreline riprap. Before closing, the claimants discovered that the property owner had no permits for the riprap installation. The Department of Natural Resources fined the property owner and made him remove the riprap and begin a shoreline restoration plan. The claimants state that they received a copy of a letter from the DNR, which allegedly stated that all requirements of the shoreline restoration plan had been met. The claimants state that two weeks after they purchased the property, spring storms raised the lake to its normal height and that the higher water level and winds caused a foot of the shoreline to erode into the lake. The claimants state that after many meetings with DNR personnel, they were granted a permit to build the riprap back to the way it was before they bought the property. The claimants believe that if the DNR had let the previous owner keep the riprap in place, they would not have incurred the cost of reinstalling it. They believe that the DNR did not provide proper procedures for the shoreline restoration and used their lot as a test for a new shoreline restoration technique. They point to the fact that their property was the only property in the area that did not have any rock for shoreline protection. The claimants also believe that the DNR has been inconsistent and point to the fact that a neighbor installed a riprap without permits at the same time as the previous property owner but was never fined or told to remove it.
The DNR recommends denial of this claim. The claimants believe that the DNR acted wrongly in requiring the prior property owner to remove the riprap. The DNR states that this action took place prior to the claimants' purchase of the property and therefore the DNR owed them no duty at the time the decision was made to remove the original riprap. The DNR also states that removal of the original riprap was reasonable due to the fact that it was constructed without a permit and in excess of DNR standards. Furthermore, the DNR's research shows that rock riprap and sea walls destroy near shore habitat necessary for the health of a water body's food chain. The claimants also allege that the DNR did not provide an adequate shoreline restoration plan. The department states that this type of plan is frequently used by the DNR and is generally successful. The DNR states that this plan was provided to the prior owner and did not involve any duty owed to the claimants and that the claimants acquired the property with full knowledge of the plan. The claimants also allege that they received a copy of a letter from the DNR, which they assert stated that all the restoration plan requirements had been met. The DNR states that this interpretation of the letter is incorrect. The letter clearly states that, although some portions of the plan had been completed, re-establishment of vegetation had not been completed and that continuing efforts were needed to ensure shoreline protection as well as protection of the recently planted vegetation. The department believes that proper maintenance of the mulch and silt fence would have prevented the erosion and subsequent need for repairs at the site. Finally, the DNR states that the restoration plan provided by the department was only that, a plan, not an insurance policy. The DNR believes that there is no evidence that the erosion of the claimants' property was caused by any negligence or breach of duty by the DNR and requests denial of this claim.
The Board concludes the claim should be paid in the reduced amount of $2,500.00 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 (4)(ma), Stats.
2. Charles H. Armitage d/b/a Neillsville Foundry, Inc., of Brookfield, Wisconsin claims $92,832.00 for interest on money paid to the Department of Natural Resources in relation to the closing of a landfill. The claimant states that, despite testing showing that the material was not hazardous, the DNR ordered the claimant to cease storing waste sand at Neillsville Foundry and to formulate a remediation plan. The claimant states that in December 1996, he signed a stipulation agreeing to remediate and close the site by September 30, 1999. This stipulation required him to make 42 consecutive monthly payments of $7750 to the Neillsville Foundry Remediation Fund and that money from this account was to be used for the actual site cleanup. The claimant states that the business was not able to support making these payments in addition to the $5000 cost of shipping waste sand off site and was forced to shut down in 1997. The claimant signed another stipulation in 1999 to make additional payments but was unable to meet that obligation. The claimant states that throughout all negotiations, the DNR constantly emphasized the urgency of the remediation and that he does not understand why that remediation is still not completed. The claimant believes that the remediation should have been completed within a couple of months of the original September 1999 target date. The claimant states that the settlement agreements provided that any remaining money in the fund, including accrued interest, was to be returned to him in proportion to the portion of his payments to the fund. The claimant believes that the state should pay him interest on the amount he has paid into the fund until such time as the site is remediated or the money is returned to him.
The DNR states that in 1995, the state sued Neillsville Foundry and the claimant for violation of solid waste disposal and storage laws. As part of a 1996 settlement agreement, the claimant agreed to pay $50,000 in forfeitures and make monthly payments to fund remediation. The DNR states that the claimant had the option of either overseeing the remediation on his own or delegating the responsibility to the DNR and that he chose the latter. The DNR states that the 1996 agreement provided that any money left over after remediation would go to the state's Environmental Fund and also included provisions in case of default. One of the provisions in case of default was that all money in the Neillsville Foundry Fund was to be transferred to the Environmental Fund. The claimant defaulted on the agreement in March 1998 and the state brought a new action against him to recover the remaining money. The claimant signed a 1999 settlement agreement, which replaced the 1996 agreement. The 1999 stipulation called for the claimant to pay $257,938.71 and for that payment and any remaining money in the Neillsville Fund to be transferred to the Environmental Fund. The claimant made final payment in October 1999. The DNR states that an addition investigation required before remediation was possible uncovered complications that have delayed the cleanup. The DNR states that, contrary to the claimant's assertion, the 1999 settlement clearly provided for all money to go to the Environmental Fund and that nothing in the agreement provided that any money would be returned to the claimant if not spent on the cleanup within a specified period of time. Furthermore, the DNR states that it is still continuing with the cleanup, for which it has spent $90,000 thus far and earmarked an additional $175,000. Finally, the DNR states that money in the Environmental Fund is used to fund projects based on priority and that funds and staff resources are limited, therefore, not every project can move forward immediately. The DNR states that it is moving forward with remediation of the Neillsville Foundry site as rapidly as its limited funds and available staff will allow.
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 neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
S828
3. Michael W. Crowell
of Tomahawk, Wisconsin claims $2,632.00 for lost furs, lost income and attorney's fees relating to a Department of Natural Resources enforcement action. In January 2002 a DNR warden questioned the claimant about two fisher pelts that the claimant brought into the DNR office to be tagged. The warden asked the claimant when the pelts had been tagged and the claimant stated that the tags had been placed on the fisher before they were transported, as required by law. The DNR warden alleges that it is unusual for the pelt tags to be clean and free of blood. The claimant states that he is an experienced trapper and is able to avoid getting blood and dirt on the tag during the pelting process. The claimant also disputes the DNR's allegation that the claimant's son, Zachary, admitted to the wardens that the animals were tagged after being pelted. The claimant alleges that the wardens lied to his son and intimidated him and that his son was not even present when the fisher were pelted. The claimant hired an attorney to defend him against the charges. Prior to the case going before a jury, the fisher pelts were lost by the DNR and the prosecution decided to drop the case. The claimant believes that this was a malicious prosecution and that the DNR wardens lied, used intimidation and delayed the trial in order to harm the claimant. The claimant requests reimbursement of his $1500 attorney fee, $772 for 4 days lost wages, and $360 for 3 fisher furs lost by the DNR.
The DNR states that the enforcement action initiated against the claimant was based on probable cause. Experienced DNR wardens observed that the fisher tags were free of blood, dust, hair and grease. Based on the wardens' experience, they believed that it was extremely improbable that properly tagged fisher (tagged in the field before skinning and fleshing) would have clean tags. The charges against the claimant were also based on an admission by the claimant's son that the furs were tagged after the animals were skinned. The DNR states that the only reason the prosecution against the claimant was dismissed was because the fisher furs were misplaced and the prosecutor chose not to proceed without that evidence. The claimant has presented no evidence that the DNR citations were malicious or improper. The DNR points to the fact that the claimant's legal expenses were incurred before the furs were lost and that, had they not been lost, his case would have proceeded to trial. If he had lost his case, the claimant would have incurred the same (and possibly additional) legal expenses plus a civil forfeiture. The DNR further states that, even if the claimant had won his case, he still would not have been able to recover his attorney's fees or lost wages because recovery of such fees are not available in civil or criminal prosecutions. The DNR believes that the state had a good faith case against the claimant even though the evidence against him was misplaced. The DNR states that, at most, the claimant would have been able to recover the fur and therefore is willing to reimburse him for the lost furs. Based on DNR records of the top price for fisher pelts at that time, the DNR offers $57.72 per pelt, or $173.16.
The Board concludes the claim should be paid in the reduced amount of $173.16 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.
4. Bergman Companies, Inc. of Eau Claire, Wisconsin claims $5,118.75 for costs incurred due to an error made when quoting a price for a Department of Natural Resources project. The claimant was awarded a line-painting project at Copper Falls State Park. While working on that project, park staff requested that the claimant submit an estimate for crack sealing the entrance road to the park. The claimant's sales representative looked at the site and estimated that it would take approximately 5,214 linear feet of crack sealant to do the job and the claimant submitted a cost estimate of $2,846.84. This bid was accepted and the project was expanded to include the crack sealing. The claimant states that the crack sealing job actually took 14,589 linear feet of sealant, considerably more than was originally estimated. The claimant now believes that the number given by the sales rep was probably the pounds of sealant required, not the linear feet (the sealant yields approximately 2.5 linear feet per pound). The claimant believes that it misunderstood the sales rep's estimate and therefore quoted the wrong units. Although the claimant realizes that this is not a justification for the increase in price, the claimant believes that it was an honest error and therefore requests reimbursement for the additional costs.
The DNR recommends denial of this claim. DNR agrees with the facts as stated by the claimant but also wishes to provide some additional information. DNR states that approximately halfway through the crack sealing project, the claimant's foreman approached park staff and indicated that the project would go over budget. No additional payments were authorized by staff, however in an attempt to help the claimant reduce costs, the DNR waived the requirement that cracks had to be cut and cleaned out before sealing. (For the remainder of the project, the claimant did not cut the cracks before sealing as originally required.) DNR again states that no offer of additional payment was made and none was requested by the claimant. DNR also points to the fact that the crack sealing project was initiated by the park superintendent only because money was left over from the original line painting project. There was approximately $3,000 remaining and the superintendent was authorized to seek quotes for the additional work, provided that the project was less than $5,000. DNR states that, had the claimant correctly priced the project, it would not have been authorized because only $3,000 in additional money was available and also because any project over $5,000 would have been subject to bidding pursuant to DOA bidding requirements. DNR believes that this was probably an honest mistake on the part of the claimant and alleges no bad faith. However, DNR believes that payment of this claim would leave the party which made the mistake whole, while forcing Copper Falls State Park to spend money that it simply does not have and which it did not and does not have any authority to spend under either budgetary or bidding guidelines. For these reasons, DNR requests denial of this claim.
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 neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
5. Frankenmuth Insurance of Blue Mounds, Wisconsin claims $167.70 for tire damage allegedly related to ash used on roads in the Town of Blue Mounds during the winter of 2002-2003. The claimant states that the ash, which was provided by the University of Wisconsin, contained bits of hardened steel from radial tires that were burned to make the ash. The claimant alleges that these metal pieces ruined the tires on Frankenmuth's 2003 Chevy Impala. The claimant is requesting reimbursement for part of the cost to replace all four tires on the vehicle. The replacement tires cost $335.39 however the claimant has depreciated the tires at 50% and is therefore requesting payment of $167.70.
The UW recommends denial of this claim. According to Blue Mounds Township, ash obtained from the UW was used on their roads, but the township stopped using the ash in February 2003. The township has also indicated that all its roads were swept in early spring and June of 2003. The UW has paid several claims related to metal pieces in UW supplied ash and, in fact, paid a claim submitted by Mr. Brock for damage to the tires of his personal vehicle. However, the claim by Mr. Brock was submitted in a timely fashion (June 2003), while this claim is not timely. The UW contends that, given when the ash was spread and swept from the roads, any damage caused by the ash should have been apparent long before October 2003, when Mr. Brock had the tires replaced, especially in light of Mr. Brock's knowledge of the problem due to the damage to his personal vehicle. The UW also points to the fact that this vehicle may have been used by other employees in other areas, which brings up the possibility that damage to the tires came from a source other than the UW ash. Finally, the UW believes that tire replacement on a company vehicle should be considered a regular maintenance cost for the company and is not the responsibility of the state.
The Board concludes the claim should be paid in the amount of $167.70 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)(c), Stats.
S829
6. Ralph Rischmann
of Milwaukee, Wisconsin claims $330.00 for property allegedly damage caused by foster children in the care of a licensed foster parent. The claimant and his wife spend their winters in Florida and were not present when the damage occurred, on March 26, 2002. According to statements by his neighbors, the children damaged three houses on the street and were observed by one of the property owners, who detained the children and called the police. The police did not issue any citations because the children were both juveniles. When he returned from Florida at the end of April 2002, the claimant's neighbor informed him of the incident and told him he should contact the Department of Health and Family Services. The claimant states that he left numerous phone messages but that they were never returned. The claimant further states that he switched insurance coverage for his home while he was in Florida and therefore his new insurer, Omaha Mutual, would not cover the damage to the property, which was not recovered until after he returned to Wisconsin. The claimant therefore requests reimbursement for the cost to replace his broken window.
The DHFS recommends denial of this claim. The DHFS states that the foster parent insurance program described in s.
48.627, Stats., only provides for payment of claims in certain circumstances. That statute limits payment "to the extent not covered by any other insurance and subject to limitations
…for all of the following
…" The statutory limitations include, "Bodily injury or property damage caused by act or omission of a child
…for which the foster, treatment foster or family-operated group home parent becomes legally liable." One of the claimant's neighbors, the Brimleys, pursued legal action against the foster mother and a judge determined that she was not responsible for the damage caused by the foster children. Because the judge found that the foster parent was not legally liable, the DHFS had no statutory authority to pay the Brimley's claim. Although the Rischmann's have not pursued the same legal action, the result presumably would be the same. The DHFS states that there does not appear to be any basis to assign liability to the foster parents or foster care agency. State and county agencies and foster parents provide care to foster children who may have serious behavioral problems. The DHFS believes that it would be contrary to public policy to require foster parents and agencies to pay for the acts of troubled children unless there is a finding of legal liability on the part of the foster parent or agency. The DHFS further believes that the government is not and should not be the ultimate payer for all crimes or wrongs and that property owners are responsible for maintaining insurance to protect themselves against these types of damages. Although the claimant has indicated that, after he switched insurance, his he new insurer would not cover the damages, he has not provided an explanation as to why the damage would not have been covered under his previous homeowners policy. The DHFS believes that if the board does decide to make an award to the claimant, that the amount of such award should be limited to the amount of any insurance deductible.
