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Passage as amended.
Ayes, 7 - Senators Huelsman, Welch, Drzewiecki, Darling, Risser, Adelman and Burke.
Noes, 0 - None.
Joanne Huelsman
Chairperson
__________________
petitions and communications
State of Wisconsin
Claims Board
The Honorable, The Senate:
Enclosed is the report of the State Claims Board covering the claims heard on June 8, 1995.
The amounts recommended for payment under $4,000 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 $4,000, 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 at the State Capitol Building, Madison, Wisconsin on June 8, 1995, upon the following claims.
In addition, the following claims were considered and decided without hearings:
The Board Finds:
S414 1. Jeffrey G. Stellings of Oshkosh, Wisconsin claims $250.00 for reimbursement of his insurance. On December 6, 1994, the claimant was en route to work-related training at MATC. He was coming down a hill toward an intersection and was unable to stop his car because of the icy conditions. The claimant's car slid into the rear of a vehicle stopped at the stop sign. The police did not issue any citations for the accident; attributing it to icy road conditions. The vehicle which the claimant struck was not damaged. Since the accident occurred while the claimant was traveling on work-related business, while he was in pay status, and was not the claimant's fault, he requests reimbursement of his $250.00 insurance deductible. The Board concludes there has been 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. Jerome E. Van Natta of Milwaukee, Wisconsin claims $250.00 for vehicle damage which occurred on August 8, 1994. The claimant an employe of DOC, was attending Agent Basic Training in Milwaukee during the week of August 8-12. The Claimant's vehicle was parked in a hotel parking lot and was undamaged as of 8:30 p.m. August 8. At 8:00 a.m. August 9, the Claimant discovered that unknown persons had thrown a piece of concrete through the rear window of his vehicle. The entire window had to be replaced. The Claimant requests reimbursement of his $250 insurance deductible. He feels he should be reimbursed because he had been assigned to be at the training site as a condition of his employment and completion of his probation. The Board concludes there has been 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. P. & M. Processing, Inc. of Juda, Wisconsin claims $118,543.49 damages related to a fire which occurred on January 13, 1992. Dr. Gene Killam, a DATCP veterinarian, visited the plant that day and ordered the condemnation of large quantities of inventory and supplies. No follow-up inspection of any of the inventory ever occurred and the claimants were never informed of their right to an immediate hearing. Almost all of the inventory and supplies that were condemned were located in closed freezers or coolers that remained running at all times and were not affected by the fire, which had been contained in the attic area. The claimants believe that DATCP improperly condemned the inventory in violation of Chapters 93 and 97 of Wisconsin Statutes, Chapter AG 47 of the Wisconsin Administrative Code, and DATCP's internal rules and regulations. The claimants request $96,343.49 for damages related to this condemnation of inventory. The claimants insurer paid $53,118.09; $6,500 of which was for building damage unrelated to this claim. The claimants also request $22,200.00 for lost profits due to DATCP's November 1991 order to cease transporting inedible meat. The Board concludes there has been 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. David and Edith Kinney of Hudson, Wisconsin claim $58,000.00 for damages related to a home which they purchased in 1986. The claimants believe that a North Hudson building inspector improperly passed the dwelling. They state that the building inspector noticed code violations at the initial inspection, was aware of numerous repairs later required to fix the dwelling, and had engineering proof of the structure's deficiencies, yet failed to issue any citations. The claimants understand that the inspector is not a state employe, however, believe that he was inadequately trained and certified by DILHR. The claimants further assert that DILHR was negligent in accepting falsified test results for some of the building materials used in the home, and that DILHR should never have approved these materials. The claimants presented engineering proof to DILHR that the material's test results were falsified, however, DILHR refused to take any action. The Claimants believe DILHR failed in their responsibilities and request reimbursement of $58,000 for the principal and down payment put into the home. In 1993 the claimants were forced to abandon the home, which had no value because of the serious structural defects. The Board concludes there has been 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.
5. William G. Shomler of Sun Prairie, Wisconsin claims $4,400.00 for costs related to the installation of a mound septic system. On March 29, 1993, the claimant received a permit to build an underground septic system on his property in Fox Hills Subdivision. On May 10, 1993, that permit was canceled. The claimant received a letter from the Dane County Division of Public Health explaining that, although the County had originally required mound systems in the subdivision, in 1988 DILHR granted approval for underground systems. However, in May 1993 DILHR discovered that ground water conditions in the subdivision were such that underground septic systems were unsafe and rescinded their 1988 decision. This required landowners to cease construction of underground systems and obtain revised sanitary permits for mound systems. It cost the claimant $4,400 more to install a mound system. (The claimant had not yet begun construction of an underground system.) He believes that DILHR should have heeded the County's warning about the ground water situation, and never given approval for underground tanks. The Board concludes there has been 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. Maurice and Karen Morley of Dousman, Wisconsin claim $4383.00 for damages relating to the alleged mishandling of a sanitary permit by the Safety and Buildings Division of DILHR. The claimants submitted an plan for a private, mound sewage system for a building they were constructing in Ottawa, Wisconsin. The plan was received by the Waukesha Safety and Buildings Office on March 26, 1993. The claimants did not receive approval for the plan until May 7, 1993, 43 days later. The claimants called the Safety and Buildings office and were told that the employe who entered the address information into the computer mistakenly used the wrong city when addressing the envelope, so the response was delayed in the mail. They were also told that there was some "confusion" over the correct address on their application. The claimants assert that if there was confusion, the Department should have called to clear up the problem (the phone number was correctly provided on the application). They allege the delay cost them $3,033 in increased building costs and $1,350 lost rental income in an apartment. The Board concludes there has been 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.
S415 7. Dan and Lynn Peerenboom of Tomahawk, Wisconsin claim $95,595.00 for damages related to monitoring orders placed on their septic system. In May 1993, DILHR issued an order that monitoring wells be placed on a number of lots in the Fox Hills subdivision due to high groundwater. This order reversed two previous DILHR decisions that monitoring was not required in the subdivision. The Claimants believe that this order was unreasonable given the record rainfall. The Claimants state that DILHR staff entered their property uninvited and unannounced to inspect their property. No problem was found with the septic system. DILHR later removed the monitoring orders on 16 out of 20 properties, despite the fact that they only conducted on-site inspections of 3 of the properties. the Claimants also disagree with the fact that the monitoring well was placed immediately adjacent to and downhill from the infiltration trenches for the Claimants' septic system. The Claimants find it impossible to believe that the readings from the monitoring well would not be impacted by the additional hydraulic loading. The Claimants had to move during this monitoring period and agreed to an additional site evaluation because of the difficulty they were having selling their home. The Claimants do not believe that they were given an objective review by DILHR field staff. Statements made by the staff person assigned to do the investigation made it clear that he was opposed to removing the orders and resented being asked to reevaluate the site. There was no water observed in any of the test pits, despite the fact that nearly 4 inches of rain had fallen in the week prior to the investigation; however, DILHR staff still concluded that shallow groundwater was a problem. The Claimants request reimbursement for real estate damages, additional expenses and qualitative costs. The house did not appreciate in value and eventually sold at $28,000 less than its market value. The Claimants had to hire a Realtor, despite the fact that they have successfully sold three homes in the past without one. The Realtor's commission on the sale was $8,670. The Claimants also had to place $10,350 in escrow as a condition of the sale, to cover the possible replacement costs of a new septic system. Because it took over a year for them to sell their home, the Claimants had to maintain separate residences 200 miles apart. The Claimants believe that 5 months is a reasonable selling time for a home and there fore, request $26,745 additional living expenses. Finally, the Claimants request $21,000 for stress, anxiety, prolonged separation, and disruption to lifestyle. The Board concludes there has been 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. Raymond Koss of Mosinee, Wisconsin claims $169,000.00 for loss of property value allegedly incurred because the DNR denied him a permit to remove sand from a spit on Lake DuBay. The claimant wishes to subdivide his property for development purposes. The DNR denied the permit, stating that the area is a wetland and that dredging would be harmful to the area. The claimant maintains that the site is not a natural wetland, but originally consisted of open water until the DuBay dam was built, which caused an abnormal build up of sand and blocked the flow of water from the channel into the river. He further alleges that this blockage has caused fish kill and that removing the sand bay would improve the movement of fish into the channel and would not adversely effect other wildlife in the area. He disputes the DNR's assertion that they did not know of the development plans for the area when they denied his permit, stating that he had forwarded the initial development plans to the DNR for their approval prior to the permit application. The claimant alleges that the most current appraisal of his property, don on July 15, 1993, shows a 77% decrease in the value of his property if the sand spit is not removed. The claimant believes that this devaluation constitutes a taking of his property for which he should be compensated. The Board concludes there has been 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.
9. Northern Christmas Trees and Nursery of Merrillan, Wisconsin Claims $60,000.00 for damages to claimant's Christmas tree farm related to flooding allegedly caused by beaver dams. In the spring of 1994, the claimant lost a large number of trees because of flooding. The claimant was told by DNR that he was not allowed to take action to remove the beaver dams. The flooding resulted in a loss of $60,000 worth of trees. The Board concludes there has been 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. Carol J. Prasse of Elm Grove, Wisconsin claims $2,382.22 for attorney fees related to her application for certification as a Level 2 School Psychologist. On June 16, 1993, the Claimant submitted her application to UW-Milwaukee for Level 2 certification. UWM refused to endorse her application, stating that she did not fulfill the requirements. The Claimant challenged UWM's decision. Three weeks later, the Claimant received a letter from Professor Teeter, Chair of the School Psychology program. Professor Teeter's letter indicated that, whle her undergraduate coursework could fulfill the statistics requirement, the Claimant was still short by 5 courses. The Claimant's former advisor wrote Professor Teeter on the Claimant's behalf, stating that her coursework did indeed fulfill the requirements for Level 2 certification. Three weeks passed without any reply from Professor Teeter. The Claimant did not believe the Professor Teeter would give her a fair review, due to previous hostilities which Teeter had expressed towards the Claimant's husband. She filed a complaint against Teeter, asking that Teeter not be allowed to participate in the review of her application and named two other professors whom she felt would grant her a fair review. In August 1993, the Claimant received response from Teeter indicating that her coursework was still not acceptable. Without the Claimant's knowledge or consent, UWM submitted her application, along with 3 other applications, to Dr. Peter Burke, Director of the Bureau for Teacher Education, Licensing, and Placement at DPI, for his review. This review was not "blind" as stated in DPI's response; the names of the applicants were clearly stated on the cover letter from Acting Dean Schneider. On September 20, 1993, the Claimant recieved another denial of endorsement from Acting Dean Schneider. In her letter, Schneider now stated that the Claimant's undergraduate statistics coursework did not fulfill the graduate requirement, despite the fact that Professor Teeter's original letter indicated that this coursework was acceptable. Schneider stated that the reviewer (Burke) had recommended denying her application. Dr. Burke had not made this statement, he had indicated that this decision was up to UWM. Schneider also misquoted Dr. Burke's letter in determining that her undergraduate statistics coursework was unacceptable and denied the Claimant's application based on a statement that concerned two other student's applications. The Claimant had 5 UWM professors write on her behalf stating that her coursework was sufficient, however, UWM still would not endorse her certification. The Claimant finally felt forced to hire an attorney. After communication with her attorney, UWM finally agreed to endorse her application and she was granted a Level 2 license on June 15, 1994. The Board concludes there has been 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.
S416 11. Ollie Charles of Stevens Point, Wisconsin claims $27,000.00 for life insurance benefits she is entitled to receive as beneficiary under her husband's life insurance policies. This claim was previously considered in Executive Session on February 9, 1993. A rehearing was granted at the request of the claimant. The claimant is the widow of Monte Charles, a former employee of UW-Stevens Point. While employed at the University, Mr. Charles applied for State Group Life Insurance/Basic and Supplemental coverage and National Guardian Life Insurance. It was Mr. Charles' impression, at the time, that he was applying for the maximum coverage available. On Mr. Charles' monthly earning and deductions statements there were deductions for basic, supplemental, and additional life insurance coverage. The State Group Life/Basic and Supplemental Coverage program provides a death benefits equal to two times the employe's annual salary. The "additional" program provides coverage in an amount equal to three times the employe's base salary. Upon Mr. Charles' death, the insurer, Minnesota Mutual Life, paid the benefit indicated on the application form - $54,000.00-or twice Mr. Charles' annual salary. The claimant now seeks to receive an additional $27,000, representing the higher benefit that would have been paid under the "additional" program. The Board concludes there has been 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.
12. Barbara Hestekin of Eau Claire, Wisconsin claims $30,140.00 for relocation costs related to the condemnation of her home due to a highway project in Eau Claire. The claimant is disabled and lives on Social Security Disability payments. The claimant owned a home appraised at $37,000, with two mortgages of $31,203.76 and $5,501.66. Due to her disability, she received a $125/month subsidy on her first mortgage, which lowered her payment to $175/month. Her second mortgage payment ($140/mo.) was totally paid by disability insurance. DOT purchased the claimant's home for $39,000. They paid off her first mortgage, second mortgage, and taxes, leaving a $1,000.20 payment to the claimant. DOT informed the claimant that she would probably be eligible for a replacement housing payment of $5,150; estimating the purchase cost of a comparable home at $42,150. DOT paid the claimant $2,415.50 for moving expenses and closing costs. The claimant made an offer to purchase a comparable home, however, she coudl not qualify for financing. She was not eligible for FHA, WHEDA or HUD loans and was denied financing by private lenders because of her low income. DOT offered to arrange priority status for a public housing rental unit, however, the claimant did not wish to give up being a homeowner. She was eventually able to purchase a home, with the assistance of a co-signer but could not receive approval for more than $34,000 financing and was therefore forced to buy a home lesser value than her previous home. When the claimant applied for relocation assistance from DOT, she was denied because her new home was not of comparable value, she had a co-signer, and the house was purchased without a DOT required inspection. The claimant sued DOT but the case was dismissed for lack of statutory provisions under which she could be paid. The claimant is requesting $29,000 to cover her losses which include: the disability subsidy payments on her first mortgage, the disability insurance payment of her second mortgage, and the DOT replacement housing payment she would have been eligible for if she had been able to purchase a comparable home. In addition, the claimant requests reimbursement of storage costs she was forced to incur because she had to purchase a much smaller home. Her storage costs total $1,140.00, resulting in a total claim of $30,140.00. The Board recommends that the claim be paid in the reduced amount of $6,256.39 based on equitable principles. the Board further recommends, under the authority of s. 16.007(6m), Stats., payment should be made from Department of Transportation appropriation s. 20.395(3)(cq), Stats.
13. Erickson Oil Products, Inc. of Hudson, Wisconsin claims $114,78.73 for damages related to a DOD/DOT Request for Proposal (RFP) for development of a Tourist Information Center in Hudson, Wisconsin. In October 1991, the claimant submitted a response to the RFP, which included an offer to purchase and the required earnest money deposit of $81,000. The Offer to Purchase, which was drafted by the State, provided that the offer would be approved by January 3, 1992, or the deposit would be refunded by January 17, 1992. On December 9, 1991, the claimant met with Thomas McCarthy, DOT District Director, who said that the claimant had submitted the only response to the RFP and would be the developer for the project. By January 17, 1992, DOT/DOD had not returned the claimant's deposit, as required by the RFP. On March 17, 1992, the claimant met with DOT Secretary Charles Thompson, who said that DOT intended to work with them to complete the project. DOT them issued press releases announcing an agreement with the claimant for development of the project. The claimant again met with DOT and DOD to discuss moving forward with the project plans on April 3, 1992. In late April 1992, Mr. McCarthy told the claimant that the project had been put "on hold." On May 20, 1992, DOT wrote the claimant, rejecting the offer to purchase and stating that the deposit would be returned shortly. The claimant believes it had an oral contract with the State and, based on the state's assurances, expended significant amounts of money in preparing for development of the project. The claimant brought suit against the State but the suit was dismissed based on sovereign immunity. The dismissal was upheld on appeal. The claimant requests reimbursement of: $6,149.90 = 12% interest on deposit; $44,472.28 = development costs; and $61,164.55 = litigation costs. The Board concludes there has been 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.
14. John Vieth of Platteville, Wisconsin claims $104.24 for reimbursement of money withheld from his paycheck for expenses related to a state van. The claimant was employed by the Office of the Secretary of State. On his last day of employment, August 19, 1994, the claimant was to drive the state van from Dodgeville to Madison, picking up other riders on the way. He was unable to start the van that morning and did not have access to a phone to notify the Vanpool office or the other riders. On September 1, 1994, the claimant received his final paycheck. $104.24 had been withheld from the check for costs related to the problems on August 19th. Specifically, the Vanpool office withheld $61.60 for personal mileage and parking costs paid to the other van riders, and $42.62 for towing costs. The claimant contends that he was not responsible for the van's mechanical failure and was never informed that he could be legally responsible for charges of this sort. The Board concludes there has been 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. (Member Edward Main not participating.)
S417 15. The City of Superior, Wisconsin claims $1,300,000.00 for refund of taxes paid to the state. This claim was originally considered on April 21, 1994. At that meeting the Board recommended payment of $700,000. Legislation for this payment was never drafted because the City of Superior requested a rehearing. In 1977, the Wisconsin legislature adopted 70.40 Wis. Stats. which imposed an occupational tax on iron ore concrete docks. The tax was set at 5 cents per ton of iron ore concentrates handled by the dock. the City of Superior was made the collecting agency for this tax, but was allowed to keep only 70% of the tax, forwarding the remaining 30% to the state. A 1986 Wisconsin Supreme Court decision declared these occupational taxes to be unconstitutional. As result of that court ruling, the City was ordered to repay taxes collected under that statute, on behalf of the state, from Burlington Northern dating back to 1977. The City filed a claim against the state and on August 17, 1987, the Claims board recommended payment of $1,575,932.89 to the City, for the state's share of the proceeds from the tax, plus 5% interest to November 2, 1987. As a result, the legislature passed 1987 Wisconsin Act 414, authorizing the payment of $1,613,364.53 from the general fund in payment of this. This amount represented the entire amount of Superior's claim, through November of 1987. On April 21, 1994, the Claims Board considered what was essentially the same as the current claim, and awarded the City $700,000. No legislation for this award was ever drafted, as this amount was deemed unacceptable to the City, which requested a rehearing. Consequently, the City has reissued the same $1.3 million claim, this time breaking down the claim into three separate amounts: (1) $845,849.47, representing the refund of payments made to the state. The basis for this portion of the claim stems from the additional occupational use tax payments made by the City. The City argues that the 1987 amendment authorizing the payment of $1.6 million to the city is not the only liability the state has incurred in total for the occupational tax suit by Burlington Northern. the city alleges that Burlington Northern brought suit again, for the years 1986-89, claiming that the amended occupational tax law violated the Railroad Revitalization and Regulatory Reform Act of 1976. Burlington Northern was again victorious in court. Consequently, Superior claims that in the time from 1986-89, 30% of all occupational tax payments total $632,716. This amount plus the interest earnings on a compounded basis, which is equal to $192,503, comes to a total of $825,219. In addition, in the six months since the April Claims Board decision, there has been an additional $20,630.47 in interest on the $825,219 figure, resulting in what the City believes is a grand total of $845,849.47, for this particular portion of the claim. (2) The second claim deals with the post-judgment interest rate. The City asserts that Burlington Norther went to the Supreme Court and won the changing of the interest rate from 5% to 12%. The difference of 7% is $1,054,501.91, multiplied by 30%, for a total of $316,350.57. (3) The final claim is for legal fees. The City claims that they have spent $207,624.58 defending a statute that has benefited the state, and they wish to be compensated for such. The Board concludes there has been 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. (Chairman Alan Lee not participating.)
16. Laurie Beth Clark of Madison, Wisconsin claims $1,057.50 for attorney fees incurred to obtain an appeal to the Wisconsin Arts Board. The claimant applied for a FY 95 Individual Artist Grant in the interdisciplinary arts category. On December 23, 1993, the Arts Board responded to her application, rejecting it on the grounds that her work was not appropriate for the interdisciplinary arts category. Neither the initial grant application nor the Arts Board's December 23 rejection letter informed the claimant of her rights to an appeal hearing. The claimant was out of town until January 16, 1994. She contacted the Arts board on January 24 to arrange a meeting to discuss her appeal rights. She met with the Executive Director on January 28. She was given a written copy of the appeal policy but was told that the 30 day time limit for appeal had already expired, therefore, there was nothing more that could be done. She hired an attorney, who attempted to secure an appeal hearing. In a letter dated March 11, 1994, the Chairperson of the Arts Board acknowledged that the claimant "did not have sufficient notice of our appeals procedure, and therefore might not have been compelled to notify us of her intent to appeal in a timely manner." The Arts Board granted the claimant's request for an appeal hearing. The claimant believes that the Arts Board violated Chapter 227 of the Wisconsin Statutes by denying her the right to a timely appeal and failing to notify her of her appeal rights. She asserts that the only way she could obtain an appeal hearing was through the use of legal counsel and requests reimbursement of her legal fees. The Board concludes there has been 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.
17. James M. Peterson of Chippewa Falls, Wisconsin claims $298.00 for replacement cost of personal printer and sheet feeder damaged while he was traveling on state business. the Claimant was traveling in a state vehicle when he was involved in an accident with another vehicle. The printer was thrown forward by the impact and destroyed, despite the fact it was enclosed in a padded bag. The removable sheet feeder was also destroyed. The Claimant requests reimbursement of $229 for the printer and $69 for the sheet feeder. The Board concludes the claim should be paid in the amount of $298.00 based on equitable principles. the Board further concludes, under authority of s. 16.007(6m), Stats., payment should be paid from the Department of Corrections appropriation s. 20.410(1)(a), Stats.
18. the Bank of Luxemburg, Wisconsin claims $975.00 for overpayment of Wisconsin Consumer Act Notification fees for the years 1989-1993. The claimant incorrectly included all consumer credit transactions when filling out the Consumer Act Notification Report form. Only those transactions under $25,000 with an interest rate above 12% should have been reported. This error resulted in an overpayment of $975. The Board concludes the claim should be paid in the amount of $975.00 based on equitable principles. The Board further concludes, under the authority of s. 16.007(6m), Stats., payment should be made from the Commissioner of Banking appropriation s. 20.124(1)(g), Stats.
19. James Shallue of Manitowoc, Wisconsin claims $195.98 for medical expenses and other costs related to injuries he sustained at the October 30, 1993, UW-Michigan football game at Camp Randall. At the end of the game, students rushed the field, resulting in a stampede which caused a number of spectators to be injured. The claimant's back was injured during the stampede. He requests reimbursement of: $78.50 insurance deductible, $3.94 postage for filing this claim, $48.03 lost wages, $5.70 for copies for filing this claim, and $59.81 long distance charges. The Board concludes the claim should be paid in the amount of $195.98 based on equitable principles. The Board further concludes, under the authority of s. 16.007(6m), Stats., payment should be made from the University of Wisconsin appropriation s. 20.285(4)(a), Stats.
S418 20. Melissa A. Hill of Madison, Wisconsin claims $435.00 for reimbursement of medical bills incurred at the University of Wisconsin Hospital and Clinics (UWHC). The claimant, who was a patient at Planned Parenthood, needed to have some testing done. She was not able to make an appointment at Planned Parenthood, because of conflicts with her work schedule and did not have health insurance. Planned parenthood contacted UWHC to schedule an appointment for the claimant. UWHC informed Planned Parenthood that the claimant could have the tests done at the "residents clinic", which would result in lower fees. The price quoted to Planned Parenthood was "$40 plus biopsies" and UWHC said the total cost would be similar to what Planned Parenthood would charge for the same services ($250). The claimant's UWHC bill totaled $774: $239 for hospital charges, $330 for the attending physician, and $270 for the physician who performed the biopsy. Planned Parenthood contacted UWHC on behalf of the claimant, questioning the bill. UWHC told Planned Parenthood that the claimant had been scheduled for a regular clinic visit, instead of a "residents clinic" visit. They also stated that the physicians could, at their discretion, lower their fees. The attending physician reduced his $330 fee by 50%, however, the other physician would not lower his fee. The claimant has since learned that the test she had done is never performed by residents, but instead requires a regular clinic visit. The claimant believes that UWHC was negligent in suggesting that a "residents clinic" visit would result in lower fees, since residents do not perform that test that she required. Furthermore, she believes that the UWHC's quote of "$40 plus biopsies" was extremely misleading. UWHC is well aware that "biopsies" include physician and laboratory fees which can total hundreds of dollars. The claimant believes that UWHC should have informed her that she would have to have a regular clinic visit, and that they should have fully disclosed to her the costs involved. The Board concludes there has been 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.
21. Dana Gefter of Bronx, New York claims $618.10 for medical expenses and other costs related to injuries she sustained at the October 30, 1993, UW-Michigan football game at Camp Randall. At the end of the game, students rushed the field, resulting in a stampede which caused a number of spectators to be injured. The claimant sustained a knee injury which required ambulance and hospital services. The claimant requests reimbursement for her uninsured medical expenses and also for the cost of her pants and boots which were damaged beyond repair. The Board concludes the claim should be paid in the reduced amount of $500.00 based on equitable principles. The Board further concludes, under the authority of s. 16.007(6m), Stats., payment should be made from the University of Wisconsin appropriation s. 20.285(4)(a), Stats.
22. Dr. Gangadharan Nair of Green Bay, Wisconsin claims $298.40 for medical expenses incurred due to an error in the 1994 Group Health Insurance Plans and Provisions booklet. The claimant is an employe of UW-Green Bay. During the 1994 open enrollment period, he switched health insurance to Blue Cross/Blue Shield based on the information provided in the 1994 Insurance Plans booklet distributed by UWGB. The booklet stated that drugs and biologicals were 100% covered by Blue Cross/Blue Shield. However, after the claimant switched insurers, it was discovered that the Insurance Plans booklet was in error, and Blue Cross only covered 80% of drugs and biologicals. The claimant was allowed to switch back to his previous insurer, but not before he had incurred $298.40 of bills. The claimant never would have changed to a health insurance plan that did not cover 100% of drugs and biologicals, since he requires monthly injections. The Board concludes the claim should be paid in the amount of $298.40 based on equitable principles. The Board further concludes, under authority of s. 16.007(6m), Stats., payment should be made from University of Wisconsin appropriation s. 20.285(1)(a), Stats.
23. Judith Knoblauch of West Allis, Wisconsin claims $20,493.58 for reimbursement of unemployment compensation taxes and business taxes collected by DILHR and DOR. The Claimant's husband owned a roofing business which experienced financial difficulty. In order to keep the business going, the Claimant's husband borrowed money from his mother's estate. He was found guilty of fraud in a Vilas County court case. the court concluded that the Claimant had no responsibility in the fraud, since she was unaware of her husband's actions, and because Wisconsin marital property law provides that spouses can not be held responsible for intentional torts committed by their partners. DOR withheld a $1,203.06 income tax refund and applied it to outstanding business taxes. Further, the Claimant claims $19,265.52 half of the proceeds from the sale of jointly owned property. The money from the sale ($38,531.05) was taken by DOR and DILHR for payment of tax liabilities. The Claimant asserts that non payment of business and unemployment taxes is a tort committed by her husband, and therefore, she is not responsible for the liabilities incurred. The Board concludes there has been 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.
24. John C. Befus of Oshkosh, Wisconsin claims $322.00 for reimbursement of damages related to an accident that occurred on July 1, 1994. The claimant, who is employed by DOR, was returning from a field audit in San Jose, CA. Upon boarding the airplane, he wished tp place the state's personal computer in the overhead storage compartment. In order to fit the computer in the compartment, he needed to rearrange one of the bags in the compartment. When he did so, the bag dislodged a video camera which the claimant was unable to see. The camera fell out of the storage compartment and was damaged. The owner of the camera sent the claimant an estimate for the repairs and the claimant paid him $322.00. He requests reimbursement for this amount. The Board concludes there has been 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.
S419 25. Bryan E. Goff of West Bend, Wisconsin claims $7,676.19 for reimbursement of 1982-83 income taxes. The Claimant left Wisconsin in 1979. In 1982 he moved to New Hampshire and worked as a welder in several states. He kept his Wisconsin driver's license and auto registration for business purposes. New Hampshire does not have an income tax. In 1982 and 1983 he filed Wisconsin income tax returns claiming temporary living expenses as a business deduction. In 1986 the IRS determined that the Claimant could not take these deductions as Wisconsin resident, since New Hampshire was his "tax home". The claimant re-filed his 1982 and 1983 Wisconsin income taxes without deducting the temporary living expenses. In December 1986 the Claimant received a notice from DOR stating that he owed income taxes for 1982 and 1983. He called the DOR and was told the notice was an error and to ignore it. For the next three years, the Claimant moved around, working in New Hampshire and Illinois. He did not receive any other notices from DOR. In 1989 he moved back to Wisconsin. From 1989-1993 the Claimant lived and worked in Wisconsin. He purchased a car, purchased a home, refinanced the home twice and paid Wisconsin income taxes. During this time he was never contacted by DOR. In September 1993 the Claimant received a delinquent tax notice from DOR for his 1982 and 1983 income taxes. He contacted the DOR to find out why they had not notified him earlier and was told that DOR had him listed under an incorrect Social Security Number. With the assistance of his accountant and attorney, the Claimant attempted to resolve the situation. He was offered a reduction in interest from 18% to 12% pursuant to section 2.87 of the Wisconsin Administrative Code. He finally paid the assessment, with the 6% reduction in interest in September 1994 when DOR threatened to garnish his wages. The Claimant disagrees that he was a Wisconsin resident during 1982 and 1983 simply because he had a Wisconsin driver's license and auto registration. He did not live, work, or own property in Wisconsin, and the IRS determined that he was not a Wisconsin resident. If he was a Wisconsin resident, why was the DOR unable to contact him? Furthermore, if he was a Wisconsin resident, he would have been able to deduct the temporary living expenses. The Claimant also points to the fact that a 1984 delinquent tax assessment was also issued against him because he did not file 1984 Wisconsin income taxes. He contacted the DOR and, using his paycheck stubs, proved that he was not a Wisconsin resident. DOR agreed and withdrew the 1984 assessment. If he was not a resident for the purpose of his 1984 taxes, even though he still had Wisconsin driver's license and auto registration, why would he be considered a resident for the purpose of his 1982 -83 taxes? The Claimant does not believe it is fair that the IRS can determine that he is not a Wisconsin resident, while the DOR can determine that he is a Wisconsin resident. Finally, the Claimant does not believe that he should be held responsible for any of the interest and penalties on the assessment, since it was DOR's error in his Social Security Number that caused the delay in notification. The Board concludes there has been 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.
26. Walter F. Kahne of Sarasota, Florida claims $364.08 for money seized from his checking account for payment of delinquent taxes. The Claimant moved to Florida in January 1979. In December 1994 he received a notice of a tax levy from DOR for 1979 taxes. The Claimant contacted DOR and explained that he had moved in January 1979 and, therefore, did not owe 1979 Wisconsin taxes. DOR asked the Claimant if he had ever filled out a change of residency form. The Claimant was unaware of such a form. DOR sent him one, and he filled it out and returned it immediately. The Claimant then received a statement showing the $364.08 had been taken from his checking account. On February 1 he received a statement from DOR showing that he did not owe any taxes, however, he could not get a refund because the statute of limitations had expired. The Claimant asserts that the first notice he received was in December 1994. The Board concludes there has been 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.
27. Debbie L. Casucci-Crave of Waterloo, Wisconsin claims $200.00 for reimbursement of money lost while traveling in Mexico on Business for DATCP. The claimant was traveling by taxi to her hotel, however, the driver of the taxi was confused about the location of the hotel and dropped her off in a town square. She realized she was not in the right location and began to search for her Spanish-English dictionary and the address of the hotel. She got out of the cab, not realizing that she had left her coin purse containing $200 in the cab. The coin purse apparently fell out of her bag when she was searching for her dictionary. She did not realize that the money was gone until she reached her hotel.. She went back to the airport to the taxi company office to try and locate the cab. The driver was identified but never returned to the airport that night. Further attempts to locate the money were not successful. The Board concludes there has been 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.
28. Townline Auto of Coleman, Wisconsin claims $378.29 for vehicle damages related to chemical spraying for Gypsy Moths near the claimant's used car dealership. The spray adhered to a number of vehicles which required the claimant to either sand and/or wash the vehicles with a high-pressure sprayer and repaint them. The claimant requests $199.50 for repairs to one vehicle, $6179 for rental of the high-pressure sprayer, $81.00 for labor costs to wash the vehicles (9 hours at $9/hour), $16.00 for long distance phone costs, and $20 for time and gas spent picking up the rented sprayer. The claimant has attempted to resolve this claim with the contractor who conducted the spraying, however, the company will not respond to the claimant's letters or calls. The Board concludes the claim should be paid in the amount of $378.29 based on equitable principles. The Board further concludes, under authority of s. 16.007(6m), Stats., payment should be made from the Department of Agriculture, Trade and Consumer Protection appropriation s. 20.115(7)(q), Stats.
29. Katrine E. Sackett of Temple, Texas claims $4,000.00 for emotional damaged, physical damages, and phone costs related to a rape which allegedly occurred in May 1979. At the time, the claimant was in the custody of Child Protective Services, in the foster home of Nancy Hansen. The claimant does not know the identity of the assailant, and the rape did not occur in Ms. Hansen's home. The claimant believes that she was inappropriately placed in the Hansen home. She feels that she required a stronger setting and that if she had been placed in a stricter environment she would not have been where she was when the rape occurred. She also asserts that the Health and Social Services has not kept correct records of the incident. She incurred $1,400 of phone costs, trying to obtain the records regarding this incident. The Board concludes there has been 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.
30. Margaret Cox of Neenah, Wisconsin claims $50.00 for damage to her vehicle while it was parked on the grounds of Winnebago Mental Health Institute. On November 18, 1994, a branch fell from from a tree in the employe parking area, damaging the windshield and hood of the claimant's car. The claimant contacted her insurance company, which in turn contacted Auto Glass Specialists to go replace the windshield. Auto Glass Specialists required the claimant to pay a $50.00 deposit before they would start the work. The claimant has been informed by Winnebago's Buildings and Grounds Superintendent that the grounds crew had been in the process of removing the dead branches, but at the time of this incident, the project had not been completed. The Board concludes there has been 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.
31. Margaret Cox of Neenah, Wisconsin claims $250.00 for damage to her 1989 Honda Civic. On August 11, 1994, the claimant parked her vehicle behind the Administration Building at the Winnebago Mental Health Institute. When she left work, she noticed that the lower panel of her care was scratched on the driver's side. She called the security guard and filed a report. The claimant states that she had washed the car the previous day and knew that the scratches were not there at that time. The claimant has a $250.00 insurance deductible. The Board concludes there has been 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.
The Board concludes:
1. The claims of the following claimants should be denied:
S420 2. Payment of the following amounts to the following claimants is justified under s. 16.007, Stats.:
The Board recommends:
1. Payment of $6,256.39 be made to Barbara Hestekin for expenses incurred as a result of the condemnation of her house by the Department of Transportation.
Dated at Madison, Wisconsin this 28thday of June, 1995.
Joseph Leean
Senate Finance Committee
Ben Brancel
Assembly Finance Committee
Alan Lee
Representative of the Attorney General
Edward D. Main,
Representative of the Secretary of Administration
Christopher Green
Representative of the Governor
State of Wisconsin
Claims Board
October 26, 1995
The Honorable, The Senate:
Enclosed is the report of the State Claims Board covering the claims heard on October 19, 1995.
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 at the State Capitol Building, Madison, Wisconsin on October 19, 1995, upon the following claims:
In addition, the following claims were considered and decided without hearings:
The Board Finds:
1. Yan Jin of Sturtevant, Wisconsin claims $509.77 for vehicle repair due to damage that occurred at Southern Wisconsin Center on May 30, 1995. The claimant is an employe at SWC and her vehicle was parked in the appropriate parking lot. A number of residents were walking in the parking lot and one resident pushed another resident's wheelchair into the claimant's car, causing damage to the right front door. The claimant does not have insurance coverage for the damage. The claimant believes that damage was an indirect result of inadequate supervision of residents by SWC staff. Furthermore, she points to the fact that when a resident damages an employe's clothing or jewelry the employe is reimbursed. She believes this is a similar situation and that she should be compensated for the damage. The Board concludes, the claim should be paid in the reduced amount of $100.00, based on equitable principles. The Board further concludes the claim should be paid from the Department of Health and Social Services appropriation s. 20.435 (2)(gk), Stats.
2. Heather Rippl of Madison, Wisconsin claims $670.00 for replacement of a stolen bicycle. The claimant, a student at UW-Madison, locked her bicycle to a UW bicycle post near the Memorial Union on April 19, 1994. On April 20, the claimant discovered that her bicycle was missing and called the UW Police. The UW Police report indicates that it appears that the bicycle post was not firmly planted in the ground and that the thieves pulled out the post to get the bicycle. The report notes that several other posts were loose in the ground and that the stone walkway around the posts was broken up. The claimant believes the UW was negligent in not properly maintaining the bicycle posts and requests reimbursement for the cost of her bicycle. The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employes and the claim is not one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
S421 3. Donald Harcus of Brookfield, Wisconsin claims $11,000.00 for overpayment of income taxes for the years 1989 and 1990. The claimant was delinquent in filing the taxes. DOR eventually issued a tax assessment and began collections through the claimant's employer. The claimant was working with a DOR agent to get the returns filed. The claimant was never informed that the $11,000 that had already been taken from tax refunds and garnishment actions would not be returned. The DOR agents' notes indicate that she did not inform him the money would not be returned. The claimant believes this was an improper action on the part of DOR, since the notice sent to his employer to begin garnishment indicated that any overpayment would be refunded. He requests reimbursement of the $11,000 overpayment and interest. The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employes and the 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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