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HomeMy WebLinkAbout08-384OCTOBER 14, 2008 08 -384 RESOLUTION (CARRIED 7 -0 LOST LAID OVER WITHDRAWN ) PURPOSE: DISALLOWANCE OF CLAIM BY WALLY JUEDES INITIATED BY: LEGAL DEPARTMENT WHEREAS, the following claim has been referred to the City's insurance carrier which has recommended disallowance. NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of Oshkosh that the proper City officials are hereby authorized and directed to disallow the following claim against the City of Oshkosh: Wally Juedes DATE OF LOSS: 8/27/2008 (for alleged items picked up by Sanitation Division) BE IT FURTHER RESOLVED that the City Clerk is hereby directed to inform the claimant by certified mail of the disallowance and the fact that the claimant has six months from the date of service to appeal. BE IT FURTHER RESOLVED that the City Clerk is directed to send a copy of this resolution and notice of disallowance to the appropriate insurance carrier for the City of Oshkosh. PLEASE PRINT RETURN TO: We Ro I City Clerk P.O. Box _1130 Oshkosh, WI 54903 -1130 Date of Report: 'W / g / oT<_ Date of Incident: V / 7 / Time of Incident: (tt) ant m Authorities Contacted? (Y�j) No Name of Person Contacted: 6SL nL, N L c- Incident Description: Witness Name: Address: Phone Number: r INSURANCE INFOf AAT N: Date Reporte Policy Number: 70266 Policy Term: C Reported By: Phone #: (920) 236 -5011 Fax #: CONTACT PERSON: (Availab nday thru Friday 8 :00 am — 3:00 pm) KEVIN UHEN JACK REICHENBERGER ROBERT HORTON Superintendent/Street, Superintendent/Water Distribution Sanitation Supervisor Sanitation & Central Garage 757 W. 3` Avenue Lrhorton@ci.oshkosh.wi.us th Avenue 639 Witzel Avenue (920) 232 -5332 FAX (920) 232 -5334 2 -5393 FAX (920 232 -5386 (920) 232 -5382 FAX (920) 235 -5386 jreichenberger @ci.oshkosh.wi.us kuhen @ci.oshkosh.wi.us (water) / recycling) (street / sewer) June 16, 2008 CLAIM FORM CI TY OF OSHKOSH, WISCONSIN ATTACH COPIES OF ALL BILLS_ •au3y P, 1 i , File _ No, 0942 T V.AI ��_7 fJ R lam. /fJ� O� pa r e- T 0..i L e., o - t -`� i - ' q t sr, _� b b L LO c �' �- � � � �� _ � a � �_ �--k `• -�..� 7�'� _ tea- �'" -��, � c�.- Ile MIDWEST CLAIMS SERVICE 1700 Opdyke Court Auburn Hills, Michigan 48326 (248) 371 -3100 (800) 225 -6561 (248) 371 -3091 fax www.midwestclaims.com September 23, 2008 Wally Juedes 1041 Mt. Vernon Street Oshkosh WI 54903 Re: Program: League of Wisconsin Municipalities Mutual Insurance Our Insured: City of Oshkosh Date of loss: 8/27/2008 Our Claim #: W18 137018 Claimant: Wally Juedes Dear Mr. Juedes, f Midwest Claims Service, Inc. administers the claims for the League of Wisconsin Municipalities Mutual Insurance who provides the insurance coverage for the City of Oshkosh. We are in receipt of the above- stated claim, in which you have alleged that the City of Oshkosh is responsible for your property damage. You have advised that you placed miscellaneous personal property inside of garbage bags and a garbage can on the terrace at 670 Central Street while you left the premises for several hours. You allege that the City of Oshkosh Sanitation Department picked up your personal property in a garbage truck. Furthermore, you allege that the City of Oshkosh employees "should have known" that the miscellaneous property was not garbage and "should have" opened the garbage bags and made this determination. ' Please be advised that we have completed our investigation of this matter and will be recommending that the City of Oshkosh deny this claim. Our investigation has revealed that you were in violation of City of Oshkosh ordinance by leaving these items on the terrace. Additionally, the City of Oshkosh does not have a duty, nor would it be reasonable to assume that City employees open resident's garbage bags and make. a determination as to whether or not property should be considered garbage. Sincerely, �.� ff i� tr`I C� � Jessica Hickman, SCLA f Senior Claims Adjuster SE I , 2 5 20;.8 Cc: City of Oshkosh HRH Insurance Services ?I'll a a' A SUBSIDIARY OF HCC INSURANCE HOLDINGS, INC.' CLAIMS SERVICE September 23, 2008 City of Oshkosh Attn: Pamela Ubrig 215 Church Ave. P.O. Box 1130 O hk Os h WI 54903 -1130 1700 Opdyke Court s , Auburn Hills, Michigan 48326 (24s) 371 Soo Re Program: League of Wisconsin Municipalities Mutual Insurance (800) 225 8561 Our Insured Ci of_Oshkosh �' n (248 371 309 fax .. "Y Date, of loss: 8/27/2008 www indwestclams:corn '; Our Claim #: WI8 137018 Claimant: Wally Juedes: 1041 Mt. Vernon Street, Oshkosh WI Dear Ms. Ubrig, Midwest Claims Service, Inc. administers the claims for the League of Wisconsin Municipalities Mutual Insurance who provides the insurance coverage for the City of Oshkosh. We are in receipt of the above- stated claim in which the claimant alleges that the City of Oshkosh is responsible for his property damage. The claimant alleges that he placed miscellaneous personal property inside of garbage bags and a garbage can on the terrace at 670 Central Street while he left the premises for several hours. The claimant alleges that the City Sanitation Department picked up his personal property in a garbage truck, as they thought it was garbage. Furthermore, the claimant alleges that the City of Oshkosh "should have" known that the miscellaneous property was - not garbage and "should have" opened the bags and made this determination. We have completed our investigation of this claim and recommend that the City of Oshkosh deny this t claim pursuant to the Wisconsin statute for disallowance of claim 893.80(lg). The disallowance of the claim in this manner will allow us to shorten the statute of limitations period to 6 months. The basis of this denial is that the City of Oshkosh was not negligent with regard to this matter. Our investigation has revealed that the claimant was in violation of City of Oshkosh ordinance by leaving these items on the terrace. Additionally, the City of Oshkosh does not have a duty, nor would it be considered reasonable that City employees open resident's garbage bags and make a determination as to whether or not property should be considered garbage. Please send your denial directly to the claimant at the above listed address. This denial should be sent certified or registered mail and must be received by the Claimant within 120 days after you received the claim. Please send copy of denial to our address as stated above. . Sincerely, CX _ Jessica Hickman, SCLA L °'l S F P 25 2008 Senior Claims Adjuster G ,� R r CC: HRH Insurance Services_ 1 _:r A SUBSIDIARY OF HCC INSURANCE HOLDINGS, INC.' 137018, OSHKOSH CITY OF 09/17/2008 11:00 AM - SJM SENT ACKNOWLEDGEMENT FAX TO INSURED. 09/19/2008 1:32 FM - JRH JUEDES- CLAIMANT ALLEGES INSURED REMOVED /DESTROYED ITEMS THAT WERE LEFT OUTSIDE APARTMENT AT 670 CENTERAL. COVERAGE: d/l is 8/27/2008, falls Win policy period of 2/1/08 thru 211/09 Verified coverage at d/l Liability Limit - $5,000,000 No ded applies per dec page CLAIMANT: Wally Juedes 1041 Mt. Vernon Street Oshkosh, WI ph# 920 - 279 -5055 FACTS: The claimant submitted a letter to the City stating that on 8127/08 he was cleaning out extra materials at 670 CENTRAL STREET that he did not use while repairing his apartment, The claimant states that he brought out about 112 of the items he was planning on taking home, but was unable to get the whole load into his vehicle. The claimant alleges that he left the items in the yard and went to unload his vehicle, and got something to eat. When he returned the miscellaneous property he left in the yard was gone. The claimant states that he filed a police report for theft. Later he was advised that the City of Oshkosh came and picked up his things. The claimant then went to the City garage and thought he could pick up his property because "pick up" was not until Friday. A city employee told him that his property was taken to the dump and that he should file a report w/ the clerk. Insured The City has listed the best contact as Bob Horton, ph# 920 -232 -5393. 1 have called and left a vm for Bob Horton, requesting a r/c so we can discuss this matter. I have called the clerk's office and asked that they forward a copy of the police report, if it exists. Bobbi Jo stated that she would look into this. LIABILITY: Unknown. We will need additional information and detail. Did a garbage truck pick the items up? WHERE were the items placed? Was it garbage day? What does the ordinance say regarding where to leave trash? If the claimant left the items unattended on the terrace and it looked like garbage, I would think he would be more than 50% comparatively negligent. DAMAGES: The claimant states that he left the following items: -box of clay pots the renter left - garbage can full of foam and a new mop 1 \6 -(1) bathroom faucet -(1) ceiling fan - 2 gal of paint - 3/4 roll of insulation - (2) kitchen drains - box of misc PVC fitting - painting and scraping supplies (brushes, scrapers, sand paper) The claimant is seeking $260.00 for the loss of his miscellaneous property he left in the yard. RESERVES: The claimant is seeking $260.00 in damages and I feel that our % chance of losing is less than 10% based on the information provided by the claimant thus far. W /in my authority POA: -r /c from claimant - where did he leave property? for how long? Did he leave it marked that it was NOT garbage? Any witness that saw the clmt put property in the yard? Any witness see city take his property? -r /c from Bob Horton @ the City - was it garbage day? where did they find the items? Was proper procedure followed? Does an ordinance indicate where they pick up trash - were these items place in that specific area? -can Bob confirm the City even took the claimant's property. Are we sure it was the garbage truck? Was the garbage truck in this area on the date of loss? -what day is pickup and drop off at the dump? -copy of police report from clerk's office. -final liability determination. Jrh 09/19/2008 1:32 PM - JRH FACTS: Rcvd call from Bobbi Jo @ the City. She stated that she checked w/ the police dept, and there is NO POLICE REPORT - and she check the case * the claimant advised of in his letter - and it does not exist. Jrh 09/22/2008 11:15 AM - JRH FACTS: Rcvd call from claimant, Wally Juedes, on Friday. We discussed his claim. He reiterated the above- stated information. He stated that he was cleaning out his apartment on the date of loss. He placed items (IN TRASH BAGS AND TRASH CANS) onto the terrace. He loaded 112 of the items into his vehicle and left the premises for several hours. I asked specifically how long he was gone. He stated that he left the area at approx 11:55am and said he returned several hours later. However, the claimant later indicated that he came back at 4:00pm. This would have been potentially 4 HOURS that he left items that resembled garbage on the terrace at 670 Central Street. The claimant said that when he came back the items he left on the terrace were gone. He thought they had been stolen so he went to the Police Station that night and advised the police of what happened. The next day, the people who live in the apartment below his told him that a garbage truck came by and picked up the items. The claimant then called the City and he claims that he spoke with Bob Horton @ the City. He alleges that Bob told him that a complaint was called in about the items on the terrace - so they picked it up. The claimant alleges it was NOT garbage day. The claimant received a citation 2 \6 ($35 fee) as his garbage was out on the wrong day (against City ordinance). I asked the claimant what his theory of liability was? The claimant said that he felt THAT THE CITY CREW SHOULD HAVE OPENED THE TRASH BAGS AND LOOKED THREW ALL THE ITEMS AND DETERMINED IT WASN'T TRASH. explained to the claimant that I do not feel that the City has the duty to a.) look through trash bags and b.) make a determination as to whether it's garbage or not. I further explained that one person's personal effects may be another person's garbage and there is NO way for the crew to know the difference, nor is there any duty that I am aware of. The claimant then admitted that he understands my position. 1 explained to the claimant that we would need to obtain the City's side of the story and we would then make our final liability determination. However, I was honest with the claimant up front and advised that I felt there would likely be no liability. LIABILITY: No. Extremely doubtful. The claimant feels that the City crew should have opened his trash bags and then made the determination that his items were not trash. It does not seem at all reasonable to assume the City would be responsible for picking threw random garbage bags and assessing whether the items are trash or "not trash." POA: -r /c from Bob Horton - City's side of the story - what ordinance did the claimant violate? Was there a complaint? What was the garbage truck doing out on the date of loss? What was the fine for? Etc. - Likely disallowance /denial. Jrh 09/22/2008 2:19 PM JRH FACTS: Rcvd r/c from Bob Horton @ the City. He advised that this incident occurred on 8127108 - a Wednesday. He stated that this as the day BEFORE the "garbage day" for this area. He stated that per the City ordinance trash can be placed on the terrace, at the EARLIEST, AFTER 4:00 the day BEFORE trash day. Therefore, because the claimant had (what the city assumed was trash) out on the terrace around 11:55am the day BEFORE trash day for that area, it was picked up and he rcvd a fine because he was in violation of the ordinance. I asked Bob if the City rcvd a complaint ? Bob stated that they do not keep records of complaints (as their dept. currently has no secretary) however, he said that it was either a complaint OR the crew was driving around (as the date of loss was trash day for other parts of the City) and saw the claimant's property sitting out on the terrace, in violation of the City ordinance. Either way, Bob explained - the claimant was in violation of the City ordinance. Also, Bob stated that usually when they fine someone for this ordinance violation the crew will take a photo of the trash on the terrace. Bob will check their records to see if a photo was obtained. If so, he will fax a copy. He will also provide a copy of the applicable city ordinance. LIABILITY: No. By leaving the items on the terrace the claimant was in violation of City ordinance. The City would have no way of knowing this wasn't trash- as it was in garbage bags & garbage cans and sitting on the terrace. There is no negligence on behalf of the City. This matter will be denied. POA: -copy of applicable ordinance the clmt was in violation of. -copy of any photos taken by the city crew prior to picking up the claimant's items /what they assumed was trash. -deny claim. Jrh 09/22/2008 4:57 PM - JRH FACTS: Rcvd copy of ordinance & photo from Bob Horton - I will review. Jrh 3 \6 09/23/2008 12:55 PM - JRH FACTS: I have reviewed the ordinance language that Bob Horton submitted. Section 23 -8 B (4) Solid waste shall not be placed out for collection before 4:OOpm of the day preceding a regularly scheduled pickup or a previously announced date for collection of recyclable materials and containers shall be returned by the persons to the point of storage within (12) hours after collection. Containers must be set out by 7:00am on the day of collection. A charge of $25 plus a $10 admin fee per occurrence will be assessed when the City must return to collect a container set out after the regularly scheduled collection has occurred, the amt. charged to each lot or parcel of land shall be charged to the owner of the property' and if not paid, shall be assessed against the real estate as a special charge pursuant to 66.60(16) Wis. Stats, LIABILITY: Igo. I will proceed to deny this matter based on the lack on negligence. POA: I will draft a recommendation of disallowance for the City. Jrh 09/23/2008 12:58 PM - JRH FACTS: I have submitted the following recommendation of disallowance to the insured, along with a letter to the claimant - explaining our position and specific reason for denial September 23, 2008 'City of Oshkosh Attn: Pamela Ubrig 215 Church Ave. P.O. Box 1130 Oshkosh, WI 54903 -1130 Re: Program: League of Wisconsin Municipalities Mutual Insurance Our Insured: City of Oshkosh Date of loss: 8/2712008 Our Claim* WI8 137018 Claimant: Wally Juedes: 1041 Mt. Vernon Street, Oshkosh WI Dear Ms. Ubrig, Midwest Claims Service, Inc. administers the claims for the League of Wisconsin Municipalities Mutual Insurance who provides the insurance coverage for the City of Oshkosh. We are in receipt of the above - stated claim in which the claimant alleges that the City of Oshkosh is responsible for his property damage. The claimant alleges that he placed miscellaneous personal property inside of garbage bags and a garbage can on the terrace at 670 Central Street while he left the premises for several hours. The claimant alleges that the City Sanitation Department picked up his personal property in a garbage truck, as they thought it was garbage. Furthermore, the claimant alleges that the City of Oshkosh "should have" known that the miscellaneous property was not garbage and "should have" opened the bags and made this determination. 416 We have completed our investigation of this claim and recommend that the City of Oshkosh deny this claim pursuant to the Wisconsin statute for disallowance of claim 893.80(1g). The disallowance of the claim in this manner will allow us to shorten the statute of limitations period to 6 months. The basis of this denial is that the City of Oshkosh was not negligent with regard to this matter. Our investigation has revealed that the claimant was in violation of City of Oshkosh ordinance by leaving these items on the terrace. Additionally, the City of Oshkosh does not have a duty, nor would it be considered reasonable that City employees open resident's garbage bags and make a determination as to whether or not property should be considered garbage. Please send your denial directly to the claimant at the above listed address. This denial should be sent certified or registered mail and must be received by the Claimant within 120 days after you received the claim. Please send copy of denial to our address as stated above. . Sincerely, Jessica Hickman, SCLA Senior Claims Adjuster CC: HRH Insurance Services September 23, 2008 Wally Juedes 1041 Mt. Vernon Street Oshkosh W154903 Re: Program: League of Wisconsin Municipalities Mutual Insurance Our Insured: City of Oshkosh Date of loss: 8/27/2008 Our Claim #: W18 137018 Claimant: Wally Juedes Dear Mr. Juedes, Midwest Claims Service, Inc. administers the claims for the League of Wisconsin Municipalities Mutual Insurance who provides the insurance coverage for the City of Oshkosh. We are in receipt of the above- stated claim, in which you have alleged that the City of Oshkosh is responsible for your property damage. You have advised that you placed miscellaneous personal property inside of garbage bags and a garbage can on the terrace at 670 Central Street while you left the premises for several hours. You allege that the City of Oshkosh Sanitation Department picked up your personal property in a garbage truck. Furthermore, you allege that the City of Oshkosh employees "should have known" that the miscellaneous property was not garbage and "should have" opened the garbage bags and made this determination. Please be advised that we have completed our investigation of this matter and will be recommending that the City of Oshkosh deny this claim. Our investigation has revealed that you were in violation of City of Oshkosh ordinance by leaving these items on the terrace. Additionally, the City of Oshkosh does not have a duty, nor would it be reasonable to assume that City employees open resident's garbage bags and make a determination as to whether or not property should be considered garbage. Sincerely, 516 Jessica Hickman, SCLA Senior Claims Adjuster Cc: City of Oshkosh HRH Insurance Services POA: -copy of disallowance -close file Jrh ..