12. Kraig Nelson of Milwaukee, Wisconsin claims $3,013.70 for vehicle damage and loss of personal property. The claimant is a member of the Wisconsin Army National Guard. While he was attending mandatory annual training at Ft. McCoy from 7/28/04 to 8/6/04, his personal vehicle was parked at the Richards Street Armory in Milwaukee. Although the armory lot is fenced and gated, a number of vehicles, including the claimant's, were broken into during this time period. The claimant states that his vehicle was damaged and that a variety of stereo equipment was stolen. The claimant states that he only carries liability coverage on the vehicle. He requests reimbursement for his vehicle damage, which amounted to $1,248.70, and his stolen stereo equipment, which totaled $1,765.00, for a total claim of $3,013.70
The Department of Military Affairs recommends payment of this claim in the reduced amount of $500.00. Although the Department does not believe that there was any specific negligence on the part of the state, the damage to the claimant's vehicle and property was inflicted while he was ordered to be at training and was all but required to leave his vehicle at the armory parking lot. The Department states that the Richards Street Armory parking lot is fenced and gated and the fence surrounding the lot has an anti-scaling top, however, as is shown by this incident, it is possible to gain access to the lot when personnel are not present for extended periods of time. The Department does not believe that the claim should be paid in full, because the claimant knowingly chose not to insure his property and therefore assumed any risk associated with its loss. The Department does however recommend payment of a reasonable deductible amount of $500.00.
The Board concludes the claim should be paid in the reduced amount of $1,248.70 based on equitable principles. The Board further concludes, under authority of §16.007 (6m), Stats., payment should be made from the Department of Military Affairs appropriation §20.465(1)(a), Stats.
13. Roy and Sandra Noack of Oconto, Wisconsin claim $248.32 for repair of a broken receive jar which was damaged during a routine inspection of the claimants' dairy farm. During the March 25, 2004, inspection, Department of Agriculture, Trade & Consumer Protection food safety inspector Victor Boudreaux attempted to help disassemble the receiver jar and, in the process, broke the jar. The claimants' request reimbursement for the cost of repair and installation of the broken jar. ($192.50 jar repair, $50 installation, $5.82 finance charge.)
The Department of Agriculture, Trade & Consumer Protection has no objection to payment of this claim. Inspector Boudreaux admits to breaking the receiver jar during the inspection. The Department states that its Division of Food Safety discourages its inspectors from dissembling fragile equipment during inspections for precisely this reason.
The Board concludes the claim should be paid in the amount of $248.32 based on equitable principles. The Board further concludes, under authority of §16.007 (6m), Stats., payment should be made from the Department of Agriculture, Trade & Consumer Protection appropriation §20.115(1)(a), Stats.
14. J. O. Young of Racine, Wisconsin claims $135.75 for vehicle damage allegedly caused by a parking stop at a University of Wisconsin-Parkside parking lot on July 2, 2004. The claimant states that when he backed out of a parking stall behind Ranger Hall, two large rods protruding 5-6 inches above the parking stop tore off the splashguard on the underside of his vehicle. The claimant contacted the university police and was told to contact the Claims Board. The claimant does not believe that the university inspects parking lots on a monthly basis as they allege, otherwise they would have found the rods. The claimant requests reimbursement of $110.35 for repair of his vehicle, $5.50 for film and film processing for pictures, and $20 for two hours time preparing this claim. The claimant is willing to accept elimination of this final damage amount, reducing his claim to $115.75. The claimant does have insurance coverage but his deductible is $500.
The University of Wisconsin recommends denial of this claim and does not believe there was any negligence on the part of the state or that there is any equitable reason for payment. The parking lot at Ranger Hall contains heavy recycled plastic parking stops at each parking space. The stops are secured in place by thick metal rods. The University states that these stops are not intended to be used as bumpers and that repeated forceful impacts by vehicles can occasionally cause the metal rods to protrude. The University states that, even assuming that the facts as presented by the claimant are true, there is no negligence on the part of the University. The University inspects the lot in question on a monthly basis, and the most recent inspection of the lot prior to this incident did not reveal any rods protruding from parking stops. In addition, no one had reported any protruding rods after the inspection and, therefore, the University had no notice of any problem. The University further states that it does not have the resources to inspect the lots more frequently. The University also states that it is possible that, instead of being a pre-existing condition, the rods could have protruded as a result of the forceful impact of the claimant's own vehicle at the time he pulled into the stall. Finally, although the University does not believe there is any basis for payment of this claim, should the Claims Board decide to award payment, the University believes it is not appropriate to reimburse the claimant for supplies and time spent in filing his claim with the Claims Board.
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.
15. Holcim, Inc., of Waltham, Massachusetts claims $11,100.00 for refund of an alleged overpayment in connection with the filing of the claimant's 2002 Foreign Corporation Annual Report. The claimant states that in section 10 of the report, its total assets were incorrectly listed as $132,189,562 and its total Wisconsin assets were incorrectly listed as $655,800. The claimant filed articles of correction for the 2002 report and requests a refund of the $11,100 overpayment that resulted from the incorrect figures that appeared in the original report.
S899
The Department of Financial Institutions recommends against payment of this claim because the Department has no means by which it can verify the accuracy of the figures provided in either the original report or the articles of correction. The Department points to the fact that the claimant has exclusive control over all of the information on which these figures are based. The Department states that it made no error in processing the claimant's report and does not believe that the state should be held responsible for any alleged errors made by the claimant. The Department points to the fact that the Claims Board has a history of denying these types of claims because it cannot be established that the state committed any error.
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.
16. Holcim, Inc., of Waltham, Massachusetts claims $1,930.00 for refund of an alleged overpayment in connection with the filing of the claimant's 2003 Foreign Corporation Annual Report. The claimant states that in section 10 of the report, its total assets were incorrectly listed as $124,574,028 and its total Wisconsin assets were incorrectly listed as $424,094. The claimant filed articles of correction for the 2002 report and requests a refund of the $1,930.00 overpayment that resulted from the incorrect figures that appeared in the original report.
The Department of Financial Institutions recommends against payment of this claim because the Department has no means by which it can verify the accuracy of the figures provided in either the original report or the articles of correction. The Department points to the fact that the claimant has exclusive control over all of the information on which these figures are based. The Department states that it made no error in processing the claimant's report and does not believe that the state should be held responsible for any alleged errors made by the claimant. The Department points to the fact that the Claims Board has a history of denying these types of claims because it cannot be established that the state committed any error.
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.
The Board concludes:
1. The claims of the following claimants should be denied:
Timothy M. Rupiper
Jacob C. Basten Construction Company, Inc.
Richard and Nancy Derauf
Ken Seubert
Roger L. Bollinger
Steve Fields
J. O. Young
Holcim, Inc. (2 claims)
2.
Payment of the following amounts to the following claimants from the following statutory appropriations is justified under s. 16.007, Stats:
Penetrator Sound and Lighting, Inc. $5,000.00 §20.190(1)(h), Stats.
Dated at Madison, Wisconsin this 14th day of December 2004.
Alan Lee, Chair
Representative of the Attorney General
John E. Rothschild, Secretary
Representative of the Secretary of Administration
Stan Davis
Representative of the Governor
Scott Fitzgerald
Senate Finance Committee
Dan Meyer
Assembly Finance Committee
