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Petitioner contends that he has satisfied his burden of
proof under section 104(a)(2) by demonstrating that the damages
that he was awarded against Dupont and Universal arose from
negligent conduct, a tort, and that the damages were paid on
account of a personal injury; i.e., the harm to petitioner's
professional reputation as an orchid grower.
Respondent counters that material facts remain in dispute.
Specifically, respondent contends that the record reflects that
petitioner received the payment in question by way of a
settlement as opposed to the State court judgment. In
conjunction with this argument, respondent contends that
petitioner has failed to show that the payment was made to
compensate petitioner for personal injuries.
Based upon our review of the entire record, we are not
persuaded that the issue of the applicability of section
104(a)(2) to the Dupont/Universal payment is ripe for summary
adjudication. Contrary to petitioner's assertion, a factual
inference may be drawn from the record that petitioner received
the payment in question pursuant to a settlement with Dupont and
Universal. In particular, the record indicates that, after
Dupont and Universal filed their appeal, petitioner accepted a
gross payment from Dupont and Universal that was approximately
$37,054 less than the amount awarded pursuant to the final
judgment of the trial court. Assuming for the moment that the
Dupont/Universal payment was in fact made pursuant to a
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