CCR2007255.
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COMMON COUNCIL - CITY OF MUSKEGO
RESOLUTION #255-2007
DISALLOWANCE OF CLAIM
(Henry Herdeman)
WHEREAS, The City of Muskego received a Notice of Claim from Henry Herdeman
dated August 22, 2007; and
WHEREAS, The City's insurance carrier has recommended that the City disallow this
claim.
NOW, THEREFORE, BE IT RESOLVED That the Common Council of the City of
Muskego, upon the recommendation of the Finance Committee, does hereby disallow
the claim of Henry Herdeman.
BE IT FURTHER RESOLVED That no legal action may be brought on this claim after
six months from the date of service of notice of this disallowance of claim pursuant to
Wisconsin Statutes, Section 893.80.
DATED THIS 11th DAY OF December ,2007.
SPONSORED BY:
FINANCE COMMITTEE
Ald. Bob Melcher
Ald. Neil Borgman
Ald. Keith Werner
This is to certify that this is a true and accurate copy of Resolution #255-2007 which
was adopted by the Common Council of the City of Muskego.
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CITY OF MUSKEGO
Staff Report to Finance/Common Council
To: Common Council Re. Strategic Goal #: (for future use)
From: City Administrator Presenter(s): Jennifer Sheiffer~.JJJ1
Subject: Topic for Presentation/Report to Common Council: ~Wawance of Henry
Herdeman Claim
Date: December 6, 2007
Background Information:
Midwest Claims Service is the claims administrator for the City's liability insurance
through the League insurance program. The attached letter from Midwest Claims
Service recommends to the Council the claim be disallowed.
Key Points and/or Information:
1. I have attached a copy of the notice of claim received by the City.
Recommendation for Action by Common Council: Approve resolution for
disallowance of claim.
Date of FinanceIPW/PU Committee Action, if required:
(Circle applicable Committee)
Fiscal Note(s): Insurance
Total $ Requested: N/ A at this time.
Amount of Total Requested Budgeted:
Amount of Total Requested Unbudgeted:
Expenditure Account(s) number recommended be used:
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III MIDWEST
CLAIMS SERVICE
1700 Opdyke Court
Auburn Hills. Michigan
48326
(248) 371-3100
(800) 225-6661
(248) 371 -3091 fa)(
www.midwestclaims.com
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December 5, 2007
City of Muskego
Attn: Janic Moyer
W182 88200 Racine Avenue
P.O. Box 749
~uskego, WI 53150
Fax: (262) 679-4106
Re: Program:
Our Insured:
Date ofloss:
Claimant:
Our Claim #:
LWMMI
City of Muskego
8/22/07
Hemy Herdeman
WIg 131518
Dear Ms. Moyer:
We are the Claims Administrator for the League of Wisconsin
Municipalities Mutual Insurance Company of which the Ctty of
Muskego is a member. We have been investigating a Notice of
Claim for the above identified matter. Attomey Amy Doyle from
Crivello Carlson has l;>een reviewing the matter and advises that the
liability in this matter is unclear at this time. Therefore, they have
recommended the claim be disallowed. Therefore, I am requesting
that the City disallow this claim pursuant to the Wisconsin statute
for disallowance of claim 893.80(lg). The disallowance of the
claim in this manner will then force the Claimant to produce a suit
within 6 months of receiving the disallowance or forever be barred
from pursuing the claim. Please send your disallowance to
Claimant. This disallowance should be sent certified or registered
mail and must be received by the Claùnant within 120 days after
you received the claim. Please infonn the Claimant of the six
month limitation. Please send copy of disallowance to our address,
as well as the return receipt. Please make sure that only the
CI' ant signs for the return receipt. If you have any f"Urther
qu ons, please feel free to call me at 248-371-3082.
ve~ Claims Attorney
^ SUBSIDIARY OF HCC INSURANCE HOlDINGS. INC.'"
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AXLEY BRYNBLSON. liP
...... Clwios v. Sweeney
(608) 283.6743
Clwcclley@ex1~Y.ÇQm
August 22, 2007
E-MAIL aud US MaD (wIlDe.)
Mr. Don S. Molter
Arenz, Molter, Macy " 1Ufi1e, sc
720 N. East Avenue
Waukeaha, WI 531864800
RB: Notice ofClaim/Mr. Henry Herdeman (claimant)
Our File No. 12939.57459
Dear Attorney Molter:
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This will serve as Henry Herdeman's Notice of Claim against 1hc City of Muskego and its authorized
agents pumnmt to Wis. Stat. fi 893.80(1). The purpose of this filing is to provide written I1CJtice of the
çlrcumstances of Mr. Herdeman's claim and on itemized statement of the relicf sought, as required by
Wi!. Stat. ~ 893.80(1)(a), and (b).
CIRCUMSTANCES OF THE CLAIM
The City of Muskego bas an eæcment on Mr. Betdeman's property for a farm drain system inside the
casement. The agreement is very carefully drafted in that it speoifically states that there is only 8
nudntenllDco and restoration requirement. The City does not have the rlsht to put in a new system in
this very limited easement area. The City also has the obligation to maintain the landscaping, by
coming across the easement, and obtaining access ~ely ûom a temporary culvert.
At the meeting he1d with David White, Tina Schaeffer, Hank Herdeman, Jim Barbian and me, it was clear that there bas been substantial settlement and that thero is a need for a substantial amount offill, top soU and grass. It was also clear that the trees needéd to be raised in order to avoid IdlUng them. Hank Herdeman is very ptoud oflrls yard and he expects it to be restored to the condition it is in now.
For your review, r have attached photographs of the holes that have been created due to the recent events. Much of the water bubbles up and comes out of different points in Mr. Herdeman's yard.
At the Public Works meeting we were told that the City was goihg to fill the area and replaxrt the
grass on Mr. Herdeman.s yard. It was clear when talking with Jim Barbian, a tree expert, that they
will kill the tree.s that exist in the cltsement. We expect the trees 10 be replaced if they are damaged by the work. Jim Barbian gave an estimate to pull the trees out and raise them in order save the City of Muskego money. His estimate was declined by the City, We are not sure this wIll be 8 cost- effective swp for the City.
. PO Baz 1767 . Madlcol1 WI5}70H767. 2 But MilBin Sau~. Suire 200. MRdilon WI 5370,.608.2515661.800368.5661. I\1x608o451.5141/. wIYw.n>:lcr.com
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Mr. Don Molter
August 22. 2007
Page 2
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AMOUNT OF CLAIM
Please exmsider tbi~ as a formal Notice of Claim. We plan to file suit to enforce the terms of the
ma1ntemmce ami restoration requirements of the agreement. The restoration and maintenance has not
been done for many years, and numerous representations were made by the City's fonner Bnginc~)
Scan Ma'Mullen. to do 0 considerable mnounf of work. Mr. McMullen also traudu1ent1y
repre.iented that there was to be a new storm water system for the City. This would aUow the farm drain to be abandoned and the easement terminated. Our olicut relied upon that representation. Because of the clearly ftaudu1ent statements made by Mr. McMullen, there will likely be CODsiderabIe damages going to our :side of the litigation. For these reasons, Mr. Herdem&n demands reimbursement in the maximum amount permitted by statute.
If you wish. we would be happy to discuss this matter with you in mote dmail. We would aJso be willing to discuss this matter with the City CO11l1Oß. However, if you decide to reject the claim, we can commence the 6tigation before the expiration of the 120 day period sot forth in WUlCOnsin'S Notice of Claim statute. I look furward to hearing fiom you in the vary near future.
Sincerely)
~YNI!.L ON, LLP
CJwles V. Sweeney
CVS:crf
BncloStttes
00: Mr. Hank Herdeman
Attorney Tim Bdwards
Mayor John Johnson
1108 Sohaefer, AJde~on
Janice Moyer, Clerk-Treasurer
TOTAl P. Ø4