The State Claims Board conducted hearings at the State Capitol Building, Madison, Wisconsin on February 23, 1995, upon the following claims.
In addition, the following claims were considered and decided without hearings:
The Board Finds:
1. PSI, Inc. of Wild Rose, WI claims $9,933.60 refund of penalties and interest assessed against their 1989 tax liability. Due to illness of their accountant, the claimant's corporate income taxes for 1989, which were due on March 15, 1990, were not filed until November 19, 1990. In previous years, the claimant has always filed it's corporate taxes in a timely fashion. The penalties and interest of the claimant's tax liability ($14,752.00), amounted to $9,933.60. The claimant has exhausted all appeals with the Department of Revenue. The claimant feels that, in the light of the unusual circumstances that caused the delay in filing, the penalty and interest of $9,933.60 is unreasonable and exorbitant and believes the money should be refunded. 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.
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2. Merritt Hanson of Appleton, WI claims $7,056.88 refund of taxes paid for the years 1985 and 1986. The Claimant asserts that, although he retained his Wisconsin driver's license during those years, he was not a WI resident; he was self-employed as an independent trucker. In 1990, the Claimant began working for a WI trucking firm. He was then contacted by the DOR and assessed delinquent taxes for 1985 and 1986. He attempted to gather the records and get the situation straightened out. It was costly to have his accountant do the taxes and he did not have the available funds to expedite the paperwork. The DOR began to garnish his wages in 1991. It was later shown that he would not have owed any taxes for these years, however, by then the 2 year statute of limitations had expired. The Claimant asserts that he was never informed of the statute of limitation and does not believe it is fair for the DOR to withhold his money. 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.
3. George Braunstein of West Bend, WI claims $50,317.00 for injuries sustained in an accident at the University of Wisconsin-Madison on July 16, 1992, while he was attending an orientation for parents of new UW students. He was walking from Elizabeth Waters dormitory to the visitor parking lot when he tripped on a 2 inch rise at the top of a concrete stairway. He fell down the flight of stairs, sustaining a puncture wound to his nose, a broken right wrist, whiplash, and a partially torn ligament in his left knee. As a result of these injuries, he has a 5% permanent partial disability of the right wrist and a 15% permanent partial disability of the left knee. The Claimant believes the 2 inch rise was caused by the settling of the walkway just before the flight of stairs. He asserts the UW was negligent in not properly maintaining the sidewalk and stairs and notes that the area was repaired after his accident. He also believes that the UW should be held responsible for the accident, just as he would be, if a similar accident occurred on his property. He denies the UW's allegation that he was carrying boxes that contributed to his fall. At the time, he was carrying a small package, a folder, and a can of soda, none of which interfered with his balance or vision and all of which could be handled in one hand. The Claimant requests reimbursement in the amounts of: $1,817.77 for uninsured medical bills, $3,500 for lost work time, $15,000 for pain and suffering, and $30,000 for future medical bills and losses. After the accident, he filed a lawsuit against the UW, which was dismissed on the grounds of sovereign immunity. 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.
4. Doris E. Lattos of Shorewood, WI claims $2,227.83 overpayment of state income taxes. The Department of Revenue (DOR), made three assessments against the Claimant: July 22, 1991, for 1985-87 delinquent taxes; August 27, 1990, for 1988 delinquent taxes, and October 28, 1991, for 1989 delinquent taxes. On June 2, 1993 the Claimant remitted a $15,000 good faith payment towards the outstanding damage assessments, while her legal counsel investigated to determine the actual tax liability due. The DOR informed her that they would not apply the payment to any year which could potentially be non-refundable, and, therefore, would not apply any of the payment towards the August 27, 1990, assessment. On July 22, 1993, she filed income tax returns for the years 1985-87. The DOR accepted the liabilities on these returns. After penalties and interest were assessed, she was due a refund on $7,523.82. On August 18, 1993, before a check was issued, the refund amount was first applied to the outstanding 1988 account, then totalling $2,227.83. The Claimant's refund check was reduced by this amount. Upon inquiry, she was informed by DOR that they had to pay the 1988 assessment before issuing a refund because "the system" required it. She was told that if she filed the 1988 return along with the 1985-87 returns, the $2,227.83 payment never would have been applied, and there would have been no tax due for that year. She was also told that if she had not made the $15,000 good faith payment, the 1988 account would have remained outstanding until the tax return was filed. Upon filing, the DOR would have adjusted the account and determined that she had overpaid for the year, thus she would not have lost the $2,227.83. The Claimant believes that she made the $15,000 payment in good faith, having been told by DOR that it would not be applied to any non-refundable assessments, and that the DOR has been unjustly enriched by refusing to refund her overpayment. This claim was considered in Executive Session on October 27, 1995. At that time, the Board decided to delay decision on the claim because they had some questions. The Board requested that the claim be scheduled for the next available hearing. The Claimant's attorney indicated that both he and the Claimant did not feel a hearing was really necessary, since the questions could be answered by letter. The Claimant asked the Board to again consider her claim in executive session, because she could not afford to pay her attorney for the additional time it would take to appear at the hearing. The Board concludes the claim should be paid in the amount of $2,227.83, based on equitable principles. The Board further concludes, under authority of s.
16.007 (6m), Stats., payment should be made from the Claims Board appropriation s.
20.505 (4)(d), Stats.
5. Julia Black of Milwaukee, WI claims $2,412.25 Homestead Tax Credit for the years 1982, 1983 and 1984. The Claimant was seriously ill during these years and a friend filed the Homestead forms for her. She asserts that the claims were filed each year within the deadline, yet she never received the money. She was later contacted by the Department of Revenue regarding her failure to file Income Tax Returns for the years 1981-1983. She alleges that she was told that she did not received her Homestead Credits because of her delinquent tax account. The Claimant submitted a doctor's letter stating that she was too ill to work during those years. The DOR accepted the letter as proof of her illness and deleted the delinquent Income Tax account from her file. The Claimant is requesting payment of her Homestead Credits in the amounts of: $724.25 for 1982, $812 for 1983 and $876 for 1984. 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.
6. Scott Ironside of Friendship, WI claims $179.00 for replacement cost of lost glasses due to an incident related to his employment with the Department of Natural Resources. On Sunday, July 17, 1994, the Claimant was contacted at his home by members of the public seeking his assistance in rescuing a Kingfisher that had become entangled in fishing line suspended from overhead wires. These individuals approached the Claimant because they knew of his position with the DNR. The bird was caught in a very visible location and many people were present, therefore, the Claimant felt obliged to offer his assistance. In the process of swimming to reach the bird, the Claimant 's glasses were lost in the lake. He attempted to locate them but was not successful because of the deep muck and dense vegetation at the bottom of the lake. The glasses have a replacement value of $310.00, however, the Claimant has been reimbursed $131.00 by insurance and requests reimbursement for the remaining $179.00. 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.
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7. American Family Insurance of Milwaukee, WI claims $428.77 for subrogation vehicle damages allegedly caused by a rock thrown by a lawnmower at Kettle Moraine Fish Hatchery on July 20, 1994. The Claimant's insured is an employe at the Fish Hatchery and had parked in the parking lot. The rock thrown by the lawnmower broke the car's rear window. The lawnmower was operated by another state employe. Based on its long standing tradition of denying subrogation claims, 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.
8. Mike & Patti Krejci of Sun Prairie, WI claim $5,650.00 for costs related to the installation of an above ground mound septic system. The Claimants made an offer on a lot subject to the lot having an acceptable perc for a conventional underground septic system. They paid for the soil and site evaluation report, which indicated that an underground system would work on the property. They purchased the lot, obtained an underground septic permit and began construction. During the final phase of construction, the permit was suspended and revoked. Six weeks later, the Claimants were informed they would need to submit and have approved a permit for a mound septic system. This was the only choice they were given,. They were also told that all variance fees would be waived. During the interim, it was necessary to have the holding tanks pumped every two weeks to maintain an effective system. The Claimants incurred additional costs of $4,550 to install the more expensive mound system. They also seek reimbursement of: $225 - remainder of variance fee, $500 - cost of the original site and soil evaluation, and $375 - cost of pumping holding tanks. The Claimants believe these extra costs are an unfair burden to them, since they had received approval for the underground system from both an independent evaluator and DILHR. This claim was originally considered at a hearing on October 27, 1994. At that time, the Board delayed deciding the claim because it needed additional information. The Board requested that the Claimants submit figures indicating how much of the original in-ground septic system was used in the later mound system. The Claimants have submitted information showing that $1,030.00 of the original in-ground system was not usable in the mound system. They also incurred a charge of $375 for pumping their septic tank between the time the original permit was canceled and the plans for the mound system were approved. The Board concludes the claim should be paid in the reduced amount of $1,405.00 based on equitable principles. The Board further concludes, under authority of s.
16.007 (6m), Stats., payment should be made from the Department of Industry, Labor and Human Relations appropriation 20.445 (1) (de), Stats.
9. Mark E. Leistickow of Green Bay, WI and James T. Barry, Jr. of Milwaukee, WI claim $2,500.00 for the difference between the Petroleum Environmental Cleanup Fund Act (PECFA) deductible effective on November 22, 1991, and the deductible which went into effect on December 11, 1991. In May, 1991, the Claimants discovered petroleum contamination, for which they were not responsible, on their property. On November 22, 1991, DILHR informed them that the property qualified for PECFA assistance and that the deductible would be $5,000. The letter also stated that the deductible would increase to $10,000 on July 1, 1993, and therefore, they should complete remediation prior to that date. The Claimants did so, but in April, 1994, DILHR told them that, because of legislation that went into effect on December 11, 1991, they were now responsible for a $7,500 deductible. This legislation changed the statutory provisions for calculating the deductible from "the greater of $5,000 or 5% of the eligible costs" to "$2,500 plus 5% of the eligible costs but no more than $7,500 per occurrence." The Claimants point out that the legislature passed this change on November 5, 1991, 17 days before DILHR sent the November 22nd letter. The Claimants find it hard to believe that DILHR was unaware of the legislature's action and do not understand why they did not include information regarding this change in the November 22nd letter, since the letter would become out of date 19 days later, when the change went into effect. The Claimants believe DILHR was negligent in withholding information regarding the change and that they should only be responsible for the $5,000 deductible. 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.
10. Lee Schiesser of Madison, WI claims $48.48 for replacement of stolen cassette player and tape, and for replacement of destroyed potted plant. The Claimant is an employe at the Department of Corrections, Division of Intensive Sanctions. The window in his office was broken out and the cassette player and tape were stolen. The potted plant near the cassette player was knocked down and destroyed. The Claimant requests $34.95 for the cassette player, $1.00 for the tape, and $10.00 for the plant and $2.53 sales tax. 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.
11. Ring Medical, Inc. of North Billerica, MA claims $50,469.00 for breach of a contract with the University of Wisconsin for the sale and installation of a communications system. On May 5, 1993, the Claimant contracted to sell a communications system to the UW for a total price of $252,480.00. The amounts were to be paid as follows: $126,240 upon signing the contract; $75,744 upon delivery of the hardware; $25,248 upon acceptance of the system; and $25,248 upon acceptance of the software. The Claimant installed the system in accordance with the parties discussion regarding implementation of the delivery and installation of the system. The UW has been using the system since the installation of the first phase on October 28, 1993. During the installation, the Claimant and the UW had discussions regarding the UW's need for a certain piece of faxing equipment, the "Faxcom Unit 4000." The "Faxcom Unit 2000", a less expensive unit, had been installed by the Claimant. The Claimant provided the UW with information on the Faxcom 4000 so that the UW could properly assess its need for the unit. In addition, the Claimant offered to credit the UW the difference in price between the two units. In March, 1994, the UW requested the Faxcom 4000. The Claimant delivered the equipment to the UW on April 13, 1994. The Claimant requested that it be allowed access to the UW premises to install the new unit. The UW refused to allow the Claimant access to UW premises. The Claimant continued to work with the UW, responding to other requests and inquiries regarding the system. The Claimant made repeated requests to be allowed access to UW premises, however, the UW has refused these requests. The Claimant believes that the UW has not worked in good faith with them towards completion of the acceptance process, and therefore, has delayed the final payments due the Claimant under the contract in the amount of $50, 496.00. 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.
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12. The Jackson County Clerk of Circuit Court claims $61,711.66 for reimbursement of fines incorrectly given to the state. Money from traffic citations with statute numbers 341-347 and 351 should be split 50/50 between the state and county. A county employe inadvertently used a 90/10 state/county split for these fines collected from January 1, 1986 through December 31, 1992. This resulted in the state being overpaid $61,711,66. The error was found when the county moved its records to the new CCAP computer system. 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.
13. Florence Fredrickson of Waupaca, WI claims $1,041.84 for damages to the meter and siding of her house and also her television. On June 17, 1994, a tree on the property of the Wisconsin Veterans' Home was struck by lightning. The tree fell, taking down the power and telephone wires and landed in the Claimant's front yard, ripping the meter out of her house and damaging the siding. The Claimant's television was damaged when the electrical lines were torn down. The repairs were as follows: $320.00 to fix the siding, $39.72 to fix the television, and $682.12 to repair the meter and damaged electrical system for the Claimant's house. The Claimant's insurance deductible is $100. The claim was previously considered in Executive Session on October 27, 1994. At the October meeting, the Board requested additional insurance information before deciding the claim. Specifically, why had the insurance company only paid $509.72, if the Claimant's deductible was $100.00? The insurance company indicated that they only paid $509.72 because not all of the repairs performed were caused by the falling tree. Only $250.00 of the $682.12 Bauer Electric, Inc. bill was related to the damage caused by the tree. The Board concludes the claim should be paid in the reduced amount of $100.00, based on equitable principles. The Board further concludes, under authority of s.
16.007 (6m), Stats., payment should be made from the Department of Veterans Affairs appropriation 20.485 (gk), Stats.
14. Robert H. Hischke of Eau Claire, WI claims $1,008.00 for reimbursement of attorney fees related to a traffic accident on May 14, 1994. He was on duty as a traffic counter for the Department of Transportation (DOT) when he struck a deer with a DOT vehicle. Another state employe was following him and witnessed the accident. They both stopped to verify that the deer was dead and not obstructing traffic. The Claimant's vehicle was still able to be driven, so he decided to return to the DOT office in Eau Claire. The other state employe, notified the Eau Claire County Highway Department of the accident and then followed the Claimant back to the office. As he was turning into the DOT parking lot in Eau Claire, the Claimant was stopped by an Eau Claire County Sheriff Deputy, who observed the damage to the vehicle. He told the Deputy the cause of the damage and the Deputy gave him a $170 citation for failing to report an accident. He hired an attorney to contest the citation and was found not guilty. The Claimant does not believe he was negligent in any way and does not feel that he should have to bear the cost of obtaining justice. 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.
15. Jeffrey A. Pippenger of Eau Claire, WI claims $177.52 for reimbursement of expenses related to the cancellation of a Department of Employment Relations Engineer Equivalency Examination on October 27, 1994. Applicants were allowed to use specific types of reference materials during the examination. After the exam had started, some of the applicants were found to have unauthorized materials. After review of the confiscated materials, DER decided to void the examination not only for those who had unauthorized materials, but for all of the applicants. The Claimant believes the situation could have been avoided if the proctors had checked the reference materials of the applicants prior to the examination and that they were negligent in not doing so. He requests reimbursement for: one days pay ($10.75 X 8 hrs. = $86.00) and gas mileage (352 mi. X $0.26 = $91.52) for a total of 177.52. The Claimant would have preferred collecting money through the judicial system, from those applicants who compromised the test, however, their names could not be disclosed to him pursuant to s.
230.13 (2), Stats. 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. John Shultis of Oshkosh, WI claims $1,319.96 for car damages related to an incident at Winnebago Mental Health Institute on September 15, 1994. The Claimant, an employe at Winnebago, had parked his car in his regular lot, which is located near the Winnebago Mental Health Power Plant. During that day, hot ashes from the power plant were put into an uncovered dump truck. Conditions were very windy and some of the ashes were blown from the truck onto the cars in the adjacent parking lot. The Claimant's car was damaged by the hot ashes, which melted into the clear coat on the body of the vehicle and also into the vinyl roof. The surface of the vehicle was covered in a grit that would not blow or rub off. The vehicle had been repainted and the vinyl roof re-dyed, prior to the incident, in August, 1994. The Claimant requests reimbursement of the cost to repair the paint job and roof: $997.50. He also requests reimbursement for the cost of a rental car during the two week period it will take to repair the car. The cost of the rental car would be: $22.99 per day for 14 days = $321.86. The Claimant has insurance coverage for the repairs, but not for the rental, and has a $250.00 deductible. The Board concludes the claim should be paid in the reduced amount of $250.00. The Board further concludes, under authority of s.
16.007 (6m), Stats., payment should be made from Department of Health and Social Services appropriation 20.435 (2) (gk), Stats.
The Board concludes:
1. The claims of the following claimants should be denied:
2. Payment of the following amounts to the following claimants is justified under s.
16.007, Stats.:
Dated at Madison, Wisconsin this 28th day of February, 1995.
Joseph Leean
Senate Finance Committee
Ben Brancel
Assembly Finance Committee
Alan Lee
Representative of Attorney General
Representative of Secretary of Administration
Christopher Green
Representative of the Governor.
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Relating to rail passenger excursion permits on state-owned rail lines.
Submitted by Department of Transportation.
Report received from Agency, March 10, 1995.
Referred to committee on Transportation, Agriculture and Local Affairs, March 15, 1995.
Relating to the uniform standards of professional appraisal practice as promulgated by the appraisal standards board of the appraisal foundation.
Submitted by Department of Regulation and Licensing.
Report received from Agency, March 9, 1995.
Referred to committee on Business, Economic Development and Urban Affairs, March 15, 1995.
Relating to sex offender registration.
Submitted by Department of Justice.
Report received from Agency, March 10, 1995.
Referred to committee on Judiciary, March 15, 1995.
The Committee on Environment and Energy reports and recommends:
Relating to emission standards for hazardous air pollutants and perchloroethylene dry cleaning facilities.
Review period waived.
Ayes, 5 - Senators Cowles, Panzer, Farrow, Burke and Clausing.
Noes, 0 - None.
Robert Cowles
Chairperson
The Committee on State Government Operations and Corrections reports and recommends:
Relating to the apportionment method of reporting income.
No action taken.
Gary Drzewiecki
Chairperson
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Senate Enrolled Proposals
The Chief Clerk records:
Senate Joint Resolution 8
Senate Joint Resolution 9
Senate Joint Resolution 10
Report correctly enrolled on March 10, 1995.
The Chief Clerk records:
Senate Joint Resolution 4
Senate Joint Resolution 15
Senate Joint Resolution 16
Report correctly enrolled on March 15, 1995.
__________________
Senate amendment 1 to Senate Bill 17 offered by Senator C. Potter, by request of the Department of Justice.
__________________
Corrections In:
1995 Senate Joint Resolution 4
Prepared by the Legislative Reference Bureau
(March 13, 1995)
In enrolling, the following correction was made:
1. Page 1, line 13: substitute "assembly" for "Assembly".
Corrections In:
1995
Senate JOINT RESOLUTION 8
Prepared by the Legislative Reference Bureau
(March 9, 1995)
