- 8 - 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 aPage: Previous 1 2 3 4 5 6 7 8 9 10 11 Next
Last modified: May 25, 2011