The Board concludes the claim should be paid in the reduced amount of $5,000 based on equitable principles. The Board further concludes, under authority of §16.007 (6m), Stats., payment should be made from the Wisconsin State Fair Park appropriation §20.190(1)(h), Stats.
6. Richard and Nancy Derauf of Madison, Wisconsin claim $53,466.47 for refund of overpayment of tax assessments for the years 1996 through 1999. Beginning in May 2000, the Department of Revenue began garnishing 25% of Mr. Derauf's wages, which continued until June 28, 2004. The claimant's filed their income tax returns for 1995 through 2003 on June 28, 2004. The claimants state that, based on their actual returns, they overpaid their tax liability for 1996-1999 by $53,466.47. The claimants do not object to being denied their 1995 refund but they do not believe that the statute of limitations applies to their overpayments because the statue does not address garnishments and doomage assessments.
The Department of Revenue recommends that this claim be denied. The Department states that the claimants failed to file taxes for 1995 through 1999, while allowing Revenue to garnish Mr. Derauf's wages continually for 3 ½ years. Revenue issued an estimate assessment for 1995 and 1996 on November 9, 1998; and estimated assessments for 1997-1999 on September 17, 2001. The claimant's filed their 1995-2003 returns on June 28, 2004. According to the Department's records, the claimant contacted the agency in March 1999 and indicated that the 1995-1997 returns were ready to be filed but failed to file the returns. Revenue began wage certification in December 2000 to collect the estimated assessment for 1995-1996. The certification remained in place for over three years. In January 2004, the Department again contacted the claimants and informed them that the certification amount would be increased if they did not file the outstanding returns. The claimants allege that the Department was "unwilling to discuss [their] issues," however, Revenue points to the fact that from Mr. Derauf's first contact with the department in March 1999 until his returns were actually filed in June 2004, neither the claimants nor anyone representing them ever contacted the Department to try and resolve the matter. All of the claimants' returns were filed with a tax due except for 1995. The Department's records indicate that three assessments totaling $9,411.51 for the years 2000 through 2002 remain unpaid. Revenue states that §71.75(5), Stats., prohibits the claimants request for refund of the amount collected on the delinquent 1996-1999 assessments because the claim was filed more than two years after the dates of the assessments.
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.
S896
7. Ken Seubert of Marshfield, Wisconsin claims $3,852.38 for damages allegedly related to a quarantine imposed by the Department of Agriculture, Trade & Consumer Protection. In September 2003, one of the claimant's cats unexpectedly attacked his wife and daughter. The cat was euthanized and tested positive for rabies. The claimant alleges that he was contacted by a DATCP rabies veterinarian but that a USDA veterinarian inspected his farm and found no reason to quarantine his herd. The claimant alleges that Dr. Bellay harassed him and threatened him with quarantine. The claimant alleges that, after he complained to Senator Herb Kohl's office, Dr. Bellay retaliated by quarantining his herd for six months. The claimant believed that the quarantine was excessive in length and appealed the quarantine. He alleges that at the administrative hearing, Dr. Bellay was proven wrong on several of her assumptions, including the claimant's ability to sell newborn calves during the quarantine. The claimant states that he was required to purchase extra feed for his cattle because of the lengthy quarantine. The claimant believes that trying to sell cattle during the state-imposed quarantine would have been difficult and would have adversely impacted the reputation of his herd. He requests reimbursement of $31 veterinary bills, $1,935 for hay, $665 for combining cost, and $1,221.38 in medical bills for rabies treatment for his family.
The Department of Agriculture, Trade & Consumer Protection recommends denial of this claim. §93.07(10), Stats., makes it the duty of the Department to protect animal and human health by employing "the most efficient and practical means for the prevention, suppression, control and eradication of communicable diseases among animals." This section also authorizes the Department to establish quarantines. It was based on this statutory duty and authority, that a quarantine was issued for the claimant's premises and the quarantine was upheld by an Administrative Law Judge. The Department states that a 6-month quarantine is not unusual for rabies. The Department states that it made efforts to cooperate with the claimant in order to avoid financial loss. Among other efforts, Dr. Tim DeVeau, a USDA veterinarian, worked with the claimant to develop a plan that would allow for sale of animals during the quarantine. The Department does pay indemnity for animals destroyed for disease control, however, in this instance, no animals were destroyed. Finally, the Department disputes some of the claimant's damages. The Department believes that the combining costs the claimant submitted would have been incurred regardless of the quarantine. The Department also points to the fact that the claimant is requesting reimbursement for the medical bills incurred for his family's rabies treatment and that these costs did not result from any action of the state relating to the quarantine. The Department believes that, even if the claimant did incur some additional expense, the state has no responsibility to compensate owners for production loss, animal care, or market changes that occur during quarantine.
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.
8. Jason Peter Koenigs of Menomonee Falls, Wisconsin claims $640.20 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 8/1/04, 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 a number or CDs were stolen. The claimant indicates that he does not have insurance coverage for these damages. He requests reimbursement for his vehicle damage, which amounted to $250.50, and 30 stolen CDs, which totaled $389.90.
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 amount of $640.20 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.
9. Roger L. Bollinger of Cochrane, Wisconsin claims $200.00 for the value of a 3-day-old calf killed and eaten by an unknown animal. The claimant found the carcass of the calf on Easter weekend and contacted the local authorities. Natural Resources Conservation Warden William Engfer was visiting the claimant's neighbor and offered his assistance when the claimant came to the neighbor's house to tell them of the incident. Mr. Engfer came over to the claimant's property and inspected the carcass and surrounding area and took photographs. Neither the claimant nor Mr. Engfer were able to identify what type of animal killed the calf. Mr. Engfer reported his findings to the local wildlife manager, Dave Linderud. The claimant was later contacted by DeWayne Snobl of the USDA, who stated that the attack was most likely made by a coyote. The claimant points out that, by the time Mr. Snobl became involved, the claimant had disposed of the carcass and Mr. Snobl was only able to examine the photographs taken of the original scene, and even stated that it was impossible to make any conclusive determination based only the photographs. The claimant does not believe that a coyote attacked the calf because he has never had a problem in the past. He believes that some other type of predator must have been passing through the area. The claimant believes that Dave Linderud did not refer the matter to the USDA in a timely fashion and that, because of the alleged delay, Mr. Snobl was not able to examine the carcass. The claimant requests the value of the calf at the time it was killed, which he places at $200.
S897
The Department of Natural Resources recommends denial of this claim. The Department states that the claimant found the animal on Easter Sunday and went to a neighbor's house to tell them of the incident. Natural Resources Warden Engfer was visiting the neighbor and suggested that the claimant take pictures of the carcass and contact the local Natural Resources wildlife manager. The claimant indicated that he did not have a camera and Mr. Engfer, even though he was off duty, offered to come the claimant's farm to take pictures and inspect the area. The Department states that Mr. Engfer searched the area and determined that, due to the number of cattle tracks in the area, it was impossible to find any evidence or tracks of the animal that had killed the calf. The Department states that shortly thereafter, Dave Linderud contacted the USDA Wildlife Services office, which contracts with the Department to investigate whether claims of damage caused by wild animals are covered under state law. Mr. Snobl indicated to the Department that, based on the location and spacing of the puncture wounds, and the condition of the skeleton, which was not torn apart or broken, he believed that an animal smaller than a wolf killed the calf, most likely a coyote. The Department states that the claimant would be eligible for reimbursement if he could provide evidence that the calf had been killed by a wolf or a bear, however, the evidence in this case does not support a wolf or bear attack and the state has not provided any reimbursement programs for livestock killed by other types of wild animals. The Department also points to the fact that, while infrequent, livestock attacks by domestic dogs are not unheard of. The Department believes that the cause of the calf's death is, at best, unexplained and that the state should not be held responsible for the damages.
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.
10. Steve Fields of Shiocton, Wisconsin claims $2,346.79 for overpayment of personal income taxes for the years 1990 through 2003. The claimant states that he has been homeless for most of his adult life and, therefore, it has been difficult for him to resolve his tax situation. The claimant states that he lived in Alaska from 1973 – 1984. The claimant further alleges that he was not required to file Wisconsin taxes for the years 1985-1989. The claimant also states that, because he was homeless, he never received many of the letters sent by the Department of Revenue. The claimant states that he would have been willing to pay his taxes but was unable to find out how much he owed. The claimant's wages were garnisheed by Revenue and the claimant alleges that, once his actual tax returns were filed, he had overpaid by $2,346.79.
The Department of Revenue recommends denial of this claim. The Department believes that the claimant intentionally attempted to avoid paying taxes for several years. In 1990, the Department was contacted by the claimant's employer, who stated that Mr. Fields was claiming to be tax exempt on his W-4 form. The Department sent two letters to the claimant inquiring as to his alleged tax exempt status and received no reply. In March 1991 the Department sent another letter requesting that the claimant file a 1989 return. No reply was received and an estimated assessment for 1989 was issued in May 1991, with a due date of July 22, 1991. The claimant paid that assessment voluntarily throughout 1991 and 1992 without filing a 1989 return. The Department later learned that the claimant had also claimed to be tax exempt on his 1990-1993 W-4 forms. The Department issued additional requests that the claimant file returns for 1990-1995 and again for 1996-1998. The claimant did not respond to these requests. The Department issued estimated assessments for 1990-1998 in December 1999 with a due date of February 14, 2000. On February 11, 2000, the claimant appealed the assessments. His appeal was denied in March 2000 because he failed to file the requested returns. Between 2000 and 2004, the Department actively attempted to resolve the delinquent assessments and certified the claimant's wages at various employers. On May 10, 2004, the claimant finally filed his 1990 through 1998 returns. Although the claimant's income was below the filing requirement for 1993, 1995 and 1996, the claimant did have tax liabilities for 1990, 1991, 1992, 1994, 1997 and 1998. The Department's calculations indicate that, after imposing penalties, late fees, and interest, the department over-collected by $380.49 on the assessments, not $2,346.79 as the claimant alleges. On May 25, 2004, the claimant filed his 1999-2003 returns. The Department states that the 1999 and 2000 returns have a tax due that is presently being assessed; the 2001 return has a refund due, and the 2002 and 2003 returns have neither a tax due nor a refund. The Department states that §71.75(3) Stats., prohibits them from refunding the amount overpaid on the original assessment since no refund was claimed within the two-year statute of limitations, which expired on December 13, 2001.
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.
11. Matthew Neitzel of Milwaukee, Wisconsin claims $3,643.78 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 7/30/04 to 8/7/04, 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's window, door, moon roof and hood were all damaged and that his radio and other personal property was stolen. The claimant states that his lieutenant colonel told him that he would be fully reimbursed for his stolen property. The claimant also alleges that he was told to file a claim with his insurance company and that the state would also reimburse his insurer for its costs. The claimant is upset that he has now been told that his insurance company will not be reimbursed and he is afraid that he will have to bear the cost of higher insurance premiums as a result. The claimant states that, had he known his insurer would not be reimbursed, he might not have filed a claim with them and risked increased premiums. The claimant has a $500 deductible for the vehicle damage and a $500 deductible for the contents of the vehicle, however he requests reimbursement for the entire amount of his loss. The vehicle damage amounted to $2,214.91. The radio and other stolen property totaled $1,428.87, for a total claim of $3,643.78.
S898
The Department of Military Affairs recommends payment of this claim in the reduced amount of $1,000. 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 claimant should be reimbursed for damages covered by his insurance, and therefore recommends payment of the claimant's deductibles in the amount of $1,000.
The Board concludes the claim should be paid in the reduced amount of $1,000.00 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.
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
