107.31 Claims against mining damage appropriation.

(1) Administration. The department shall establish by rule procedures for the submission, review, settlement and determination of claims against the mining damage appropriation under this section. The rules shall include procedures for the proration of awards made under this section when the awards exceed the balance in the mining damage appropriation.

(2) Who may file claim; notice.

(a) Any person may make a claim against the mining damage appropriation to recover damages for mining-related injuries.

(b) Within 10 days of receiving a claim submitted under par. (a), the department shall notify the mining company alleged to have caused the claimant's damages that the claim has been made. Any company alleged to have caused the claimant's damages may, at its sole discretion, become a party to the proceeding.

(3) Recovery of damages under strict liability.

(a) When a claim under this section is not settled, an adjudicatory hearing shall be held. If after the hearing the department finds that the claimant has demonstrated by a preponderance of the evidence that claimant incurred damages from mining-related injuries, it shall make an award from the mining damage appropriation in an amount equal to the damages incurred, except as provided in sub. (4). Payment of the award shall not be delayed or limited in anticipation of any other recovery the claimant may receive by pursuing other remedies.

(b) Damages under this section shall be awarded without regard to fault, except as provided in par. (c).

(c) Contributorily negligent causation shall not bar recovery for a claim filed under this section by any person or his or her legal representative if such negligent causation was not greater than the causation of the mining company, but any award shall be diminished in proportion to the amount of negligent causation attributable to the person recovering.

(d) No award of nonpecuniary damages may be made for a claim under this section unless the claimant demonstrates by a preponderance of the evidence that the claimant is entitled to nonpecuniary damages and that there is a causal relationship between the injury for which pecuniary damages have been awarded and the injury for which nonpecuniary damages are claimed.

(4) Limitations on award.

(a) Any amount otherwise recovered for the mining-related injury for which a claim is filed under this section shall reduce the amount awarded under this section by the amount otherwise recovered.

(b) No award for a claim under this section may exceed $150,000 for all injuries less any amount subtracted under par. (a) or sub. (3) (c).

(c) No award for loss of society and companionship, pain and suffering or mental anguish may exceed a total of $20,000 and, in any event, no award for nonpecuniary damages may exceed 50 percent of the amount awarded for pecuniary damages.

(d) No award may be made for punitive purposes.

(e) No award for a claim under this section may exceed an amount equal to the balance in the mining damage reserve accumulation.

(5) Mining damage reserve accumulation.

(a) Calculation. The mining damage reserve accumulation is calculated by subtracting the total amount of all mining damages awards paid from the appropriation under s. 20.445 (4) (a), 2001 stats., beginning on May 22, 1980 or paid from the appropriation under s. 20.165 (2) (a) from the sum of:

1. Four percent of all moneys distributed under s. 70.395 (1), 1995 stats., and under s. 70.395 (1e) beginning on May 22, 1980; and

2. Prior to 10 years after May 22, 1980, $500,000.

(b) Proration. If the balance of the mining damage reserve accumulation is less than $500,000 at the beginning of a fiscal year or falls below that amount at any time, the department shall delay the payment of all mining damage awards during that fiscal year until after the close of the fiscal year to determine the sufficiency of the mining damage reserve accumulation.

(6) State subrogated to claimant's rights. The state is subrogated to the rights of a claimant who obtains an award under this section in an amount equal to the award and may bring an action under s. 107.32 against a mining company or join in an action brought by a claimant under s. 107.32 to recover the amount awarded the claimant. A claimant who receives an award under this section shall cooperate with the state in any action under this subsection. The department may withhold 5 percent of the total award to which a claimant is entitled under this section until the state decides whether to commence an action under this subsection or, if commenced, until the action is resolved.

(7) Admissibility of findings and conclusions. The findings and conclusions under this section are not admissible in any civil action brought against a mining company.

(8) Appeal. Any party to a claim under this section may appeal a decision of the department to circuit court which shall conduct a full evidentiary hearing on the claim.

History: 1979 c. 353; 1981 c. 86; 1997 a. 27; 2003 a. 33; 2011 a. 32.