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HomeMy WebLinkAbout09-87MARCH 24, 2009 09 -87 RESOLUTION (CARRIED 5 -0 LOST LAID OVER WITHDRAWN ) PURPOSE: DISALLOWANCE OF CLAIM BY JASON WELTY INITIATED BY: LEGAL DEPARTMENT WHEREAS, the following claim has been referred to the City's insurance carrier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: Jason Welty DATE OF LOSS: 11 /1 /2007 — 8/2/2008 (damage allegedly to vehicle while impounded) 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. March 12, 2009 City of Oshkosh Attn: Pamela Ubrig P.O. Box 1130 Oshkosh, WI 54902 1700 Opdyke court Re: Program: League of Wisconsin Municipalities Mutual Insurance Auburn Hills, Michigan Our Insured: City of Oshkosh 48326 Date of loss: 11/01/2007 (248) 371 -3100 Claimant: Jason and Kim Welty (800) 225 -6561 Our Claim #: WI8 138401 (248) 371 -3091 fax www.midwestclaimsx , rn Dear Ms. Ubrig: Midwest Claims Service is the claim administrator for the League of Wisconsin Municipalities Mutual Insurance who provides the insurance coverage for the City of Oshkosh. We have received a claim in which the claimant alleged that unknown suspect broke into his vehicle while it was parked in the City's impound lot. 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(1 g). 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 due to the fact that the City of Oshkosh has governmental immunity for discretionary functions. Immunity exists for acts, which involve the exercise of judgment, Willow Creek v. Town of Shelby. 2000 WI 56, 235 Wis. 2d 409, 611 N.W.2d 693. The City of Oshkosh Police Department exercised judgment by securing the impound lot with barbed wire fencing. The police department did try to prevent suspects from breaking and entering the impound lot. Please send your denial letter to Jason and Kim Welty, 914 MacArthur Avenue, Ashland, WI 54806. This denial should be sent certified or registered mail and must be received by the claimant within 120 days after you received the claim. Enclosed is a sample denial letter format. Please send copy of denial to our address as stated above. If you have any further questions, please feel free to call me at 1 -800- 225 -6561. Thank you. Sincerely, Barbara Hooks /cmk Senior Claims Adjuster CC: HRH Wisconsin, Inc. t MAR 18 2009.a� E A SUBSIDIARY OF HCC INSURANCE HOLDINGS, INC Summary of General Liability Investigation Date of loss- 11/01/2007 Claimant: Jason& Kim Welty 914 Mac Arthur Ave Ashland, WI 54806 (t) 715 - 682 -5012 01/05/2009 — Spoke with claimant (Jason Welty) D/L - 11 /01 /2007 Time discovered? 02/29/2008 at 8:15 AM D , [fAR_ 2009 CIT CLERK'S R`FI How was municipality notified? The claimant's vehicle was parked . inside the City's impound lot. On 02/29/2008, Sgt. Eric Stenson discovered that there was damage to the claimant's parked vehicle, while releasing it from the impound lot. Damages? The claimant's vehicle was a 2000 Olds Alero. An unknown suspect climbed over the barbed wire fence and broke out the window on the driver's side of the vehicle. The claimant submitted a bill from Bergstrom of Oshkosh in the amount of $436.26 for the replacement of the broken window and for the cleaning of the interior of the vehicle. 01/05/2009 - Called insured, Sgt. Kaiser, and left a message 01/16/2009- Received a call back from insured, Sgt. Kaiser, and she would send a copy of the police report. Received and reviewed the police report. x �� Received a call back from Sgt. Stenson on 03/12/2009, and asked him some additional questions about tfie`incident since he witnessed the damage. Liability- It appears that the City would not be negligent. The City has no control over suspects climbing over the barbed wire fence, breaking into the parked vehicles and stealing items. The City does try to prevent this from occurring by keeping the area fenced in with high barbed wire fence. In addition, the City has governmental immunity for discretionary functions. Immunity exists for acts, which involve the exercise of judgment, Willow Creek v. Town of Shelby, 2000 WI 56, 235 Wis. 2d 409, 611 N.W.2d 693. The City Police Department exercised judgment by securing the impound lot with nine foot fencing that has barbed wire on top. I do not see any negligence on behalf of the City and will be recommending a denial of this matter.